The Issue The issues in this case are whether Respondent, Daniel F. Acevedo, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on July 11, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Daniel F. Acevedo, is and has been at all times material hereto a certified general contractor in Florida, having been issued license number CGC 1506071. Mr. Acevedo is also a Certified Roofing Contractor, having been issued license number CCC 1326888. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board) and are in “current active” status. At all times material, Mr. Acevedo was the primary qualifying agent for All Design Systems, Inc. (hereinafter referred to as “All Design”). All Design is a Florida corporation. Mr. Acevedo is an officer of the corporation. All Design’s certificate of authority, License Number QB 26737, was issued on September 4, 2003. The license expired on August 31, 2007, and was in delinquent status from September 1, 2007, to May 14, 2008. Mr. Acevedo remained the qualifying agent during the delinquent period. All Design employed three to four sales agents who “sold” construction projects to commercial and residential property owners on behalf of All Design. All Design utilized these individuals because it believed they had experience in the construction industry and that they held licenses or certifications which would allow them to perform estimates on construction projects and make appropriate bids. The sales agents were to find customers for All Design and enter into contracts with them on behalf and in the name of All Design. In August of 2005, Mr. Acevedo was approached by Eduardo Rodriguez. Mr. Rodriguez offered to locate potential home remodeling customers for All Design in exchange for a percentage commission. Mr. Acevedo agreed. At no time relevant to this matter was Mr. Rodriguez licensed in Florida to engage in contracting as a state certified or registered contractor. Nor was Mr. Rodriguez’s business entity, Eduardo’s Construction, Inc. (hereinafter referred to as “Eduardo’s Construction”), licensed with a certificate of authority as a contractor qualified business. Mr. Rodriguez was the president and sole officer of Eduardo’s Construction. Eduardo’s Construction was not incorporated in Florida. Some time during 2005, Grace Esposito obtained a business card for Eduardo’s Construction. She obtained the card after discussing with a neighbor construction work that was being performed by Eduardo’s Construction on the neighbor’s residence. The neighbor informed her that Mr. Rodriguez was the contractor performing the work. The business card incorrectly represented that Mr. Rodriguez was licensed and insured. Ms. Esposito called the number listed for Eduardo’s Construction and spoke with a man who identified himself as Eduardo Rodriguez. In August 2005, Mr. Rodriguez met with Ms. Esposito at her condominium residence, located at 20301 West Country Club Drive, Aventura, Florida (hereinafter referred to as the “Subject Property”). Ms. Esposito discussed with Mr. Rodriguez the work which she desired. Based upon representations from Mr. Rodriguez, Ms. Esposito believed that he was licensed to perform the work being discussed. The evidence failed to prove, as suggested by Mr. Acevedo, that Mr. Rodriguez “bid on the Esposito job, [and] orally agreed to essential terms with Esposito on behalf of All Design Systems, Inc., Respondent’s Firm.” Mr. Acevedo’s testimony in this regard was uncorroborated hearsay and was contradicted by the credible testimony of Ms. Esposito. On September 5, 2005, Ms. Esposito entered into a written contract with Mr. Rodriguez, doing business as Eduardo’s Construction, for the remodeling of the Subject Property (hereinafter referred to as the “Contract”). Ms. Esposito agreed in the Contract to pay $24,000.00 for the remodeling. Upon execution of the Contract, Ms. Esposito paid Eduardo’s Construction with three checks totaling $12,000.00 for the remodeling. Mr. Rodriguez informed Mr. Acevedo of the project in September 2005. At that time, without reviewing the Contract, Mr. Acevedo executed a building permit application which Mr. Rodriguez provided him for the project. The permit application had not been signed by Ms. Esposito. In October 2005, Mr. Rodriguez presented the building permit application to Ms. Esposito for her signature. The permit application was then submitted to the building department. The building permit was subsequently approved and issued under Mr. Acevedo’s license and in the name of All Design. Ms. Esposito had been told that part of the work would be completed in October. When this representation proved untrue, she began contacting Mr. Rodriguez. Mr. Rodriguez told her that it was taking time to get the permit due to delays at the building department. Eventually, when she was no longer able to contact Mr. Rodriguez, Ms. Esposito went directly to the building department where she learned that All Design was the contactor of record and not Eduardo’s Construction. On or about October 31, 2005, Ms. Esposito telephoned All Design and spoke with Mr. Acevedo. She informed Mr. Acevedo about the Contract. Mr. Acevedo agreed to meet with her. On November 1, 2005, Mr. Acevedo visited Ms. Esposito at the Subject Property. She showed him the work that had been performed and explained the details of the Contract and what had transpired with Mr. Rodriguez. Mr. Acevedo told Ms. Esposito that his relationship with Mr. Rodriguez was that he merely allowed Mr. Rodriguez to use his license to pull permits in exchange for $150.00. Mr. Acevedo told Ms. Esposito that he would attempt to get Mr. Rodriguez to complete the job. This meeting was memorialized in a letter to Mr. Acevedo written by Ms. Esposito. At some time in November, work recommenced on the project. Within approximately three days, however, work stopped. Ms. Esposito sent four emails to Mr. Acevedo describing the work performed and the cessation of the project. Ms. Esposito made a final request that the project be completed. Mr. Acevedo did not respond to the emails. On or about November 17, 2005, Ms. Esposito sent a letter to Mr. Acevedo outlining the events, requesting termination of the Contract, and the removal of Mr. Acevedo from the building permit. Mr. Acevedo did not respond to this letter. The building permit was cancelled by Mr. Acevedo in December 2005. The total investigation costs incurred by the Department, excluding those costs associated with any attorney’s time, was $381.83. Mr. Acevedo has not previously been disciplined by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Daniel F. Acevedo violated the provisions of Section 489.129(1)(d), (i), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $250.00 for Count I, $1,000.00 for Count II, and $2,000.00 for Count III; requiring that Mr. Acevedo pay the costs incurred by the Department in investigating and prosecuting this matter; placing Mr. Acevedo’s licenses on probation for a period of two years, conditioned upon his payment of the fines, payment of the costs incurred by the Department; and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 11th day of March, 2009. COPIES FURNISHED: Brian P. Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Daniel Acevedo All Designs Systems, Inc. 2813 Executive Drive Weston, Florida 32388 Kenneth Stein, Esquire 8436 West Oakland Park Boulevard Sunrise, Florida 33351 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed May 19, 1987. At the hearing the Respondent stipulated to several of the allegations in the Administrative Complaint. Thereafter, the Petitioner presented the testimony of four witnesses and offered five exhibits, all of which were received in evidence. The Respondent did not testify on her own behalf, but did present the testimony of one witness. The Respondent did not offer any exhibits in evidence. At the conclusion of the hearing the parties were given 20 days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 15, 1987, and the Petitioner thereafter filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. As of the date of this recommended order, the Respondent has not filed a proposed recommended order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing I make the following findings of fact. Stipulated findings At all times relevant hereto, the Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor. At all times relevant hereto, the Respondent held license number RC 0060128 issued by said Board. The Respondent's address of record is in Jacksonville, Florida. The Respondent did, through the contracting business Respondent was then associated with and responsible for in her capacity as a licensed contractor, contract with Darryl Debow, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows. The contract was entered into on or about April of 1986. The contract price was $5,900.00. The job was located in St. Augustine, Florida. The job generally consisted of repairing the roof of the Customer's commercial buildings. After entering into the contract, the Respondent's contracting business began work on the job. The rest of the facts The Respondent's business began work on the job described above without obtaining a permit for said work from the local building department and without assuring that someone else had obtained a permit for the work. There was no permit posted on the job site when Respondent's business began the job. The Respondent did not ask the local building department to inspect the work done on the subject contract. The Respondent was not licensed as a roofing contractor in St. Johns County, Florida, at any time from the beginning of 1985 until the day of the hearing. At all times material to this case, the applicable building code required permits for roofing work.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect: Dismissing the violations charged in subparagraphs (b) and (c), of paragraph 13 of the Administrative Complaint; Finding the Respondent guilty of the violations charged in subparagraphs (a) and (d) of paragraph 13 of the Administrative Complaint; and Imposing an administrative fine in the amount of five hundred dollars ($500.00) and placing the Respondent on probation for a period of one year. DONE AND ENTERED this 1st day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 1st day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2672 The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings proposed by Petitioner: Paragraph 1: This paragraph is a proposed conclusion of law rather than a proposed finding. Paragraphs 2 through 7: Accepted. Paragraph 8: Accepted in part and rejected in part. Accepted that no inspection by the local building department was requested. Portion which states such inspections were required is rejected as not supported by clear and convincing evidence. Paragraph 9: Rejected as addressing matters which are not clearly placed in issue by the Administrative Complaint and which, in any event, are not supported by clear and convincing evidence. Paragraph 10: Rejected as not supported by clear and convincing evidence. Findings proposed by Respondent: The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Ms. Dorothy Homesley 35 Norde Drive, West Number 18 Jacksonville, Florida 32224 G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Tom Gallagher Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Fred Seely Executive Director 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 Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended administrative complaint?
Findings Of Fact At all pertinent times, respondent Ronnie L. Barfield was registered as a roofing contractor and held a state contractor's license, No. RC 0039607. At some point, records reflected the license was inactive, but this was in error. In 1987, Jack Williams lived in the house at 3101 Kings Drive in Panama City, Florida. At all pertinent times the house belonged to Evelyn Rhoads, whose daughter Anna was once married to Mr. Williams. "[B]ack in 1987," (T.10) Mr. Williams contracted with respondent Barfield, on behalf of Ms. Rhoads, to re-roof the house. Doing business as Gulf Coast Roofing Co., Mr. Barfield estimated the work would cost $5,000, before seeing the house, but ultimately presented a bill for (and was paid) $13,922.56. Petitioner's Exhibit No. 2. Respondent removed the existing shingles, replaced rotted portions of the decking near the chimney, installed four new skylights, installed a new drip edge or eave drip and put on new felt and fiberglass shingles. Any flashing there may have been around the chimney did not survive removal of the existing shingles. The eave drip, a strip of aluminum, "puckered" over the carport because the trusses were not uniform. At Mr. Williams' request, Mr. Barfield drove three nails through the eave drip into the fascia to flatten the metal out. Exposed to the elements, the heads of these galvanized nails rusted. On August 10, 1987, after Jack had moved out, Anna moved back in. She noticed "a lot of ridges, indentations and waves in the roof." T.16. (But this may have been nothing new. When a concrete slab foundation varies in height, so that the trusses are at different heights, it makes the roof uneven.) Waviness arising even after respondent's work would more likely have been because of poor attic ventilation than any dereliction by respondent. Anna Bartness, as she has been known since July of 1988, also noticed that the shingles capping the peak or ridge of the roof were loose and uneven. When inspected in January, ridge cap shingles were found attached with only a single nail, instead of two -- one on either side -- which is the industry standard. Eventually "the ridge cap came off it was in the yard." T.16. One of the skylights leaked, when it rained. Ms. Bartness sought Mr. Williams' assistance in locating respondent to tell him of the problems. Mr. Williams remembered getting "the telephone number where [respondent] could be reached." T.14. Whether Mr. Williams himself actually telephoned is not clear, but Ms. Bartness tried repeatedly to reach Mr. Barfield by telephone. Although she never succeeded, she left messages on a telephone answering machine and also left word with a secretary in Mr. Barfield's lawyer's office. A certified letter she mailed respondent was returned unclaimed. These efforts to reach Mr. Barfield may have coincided with time he spent in south Florida. Respondent had agreed "LABOR CARRIES A 5 YEAR WARRANTY." Petitioner's Exhibit No. 2. He did not learn of complaints about the work at 3101 Kings Drive until after Ms. Rhoads complained to the Department of Professional Regulation and the present proceedings began. But he had not offered to reimburse Ms. Rhoads or otherwise honor the warranty in any way, as of the time of the hearing. Giving up on Mr. Barfield, Ms. Bartness got estimates from two other roofers, David C. Stallnecker and Mayo= Rudd. Among other things, flanges around plumbing vents that had sustained damage from external sources required replacement, flashing needed to be installed around the chimney, wood there had again rotted, and ridge cap shingles needed removal and proper installation. Mr. Rudd charged her $710 for repairs he told her consisted of putting flashing around the chimney because there was none, reapplying tar or "bull," replacing a defective vent that was leaking into a skylight and, which she could see herself, replacing shingles on the roof ridge. Petitioner's Exhibit No. 5. On or about January 15, 1988, before these repairs, Mr. Stallnecker, like Mr. Rudd, found "no flashing on the chimney." Petitioner's Exhibit No. 5; T. 44. When water began coming down the chimney in 1990, Ms. Bartness contracted with James Rutledge, doing business as Rutledge Roofing, to do additional work. He removed shingles around the chimney, replaced bad wood, installed a "membrane with plastic [r]oof cement for flashing against chimney," Petitioner's Exhibit No. 7, and replaced felt and shingles. Unless an owner instructs him not to, a reasonably prudent roofer would install flashing around a chimney that did not already have it before laying shingles there. T. 45. Testifying at hearing, Mr. Barfield never claimed that he installed flashing around the chimney. Nor did he ever say he saw flashing around the chimney. He said flashing was built in behind the brick. You couldn't see it . . . until you pulled the brick out. T. 70. On balance, however, his testimony suggested that he assumed there was flashing around the chimney, without ever seeing it. [T]he brick masons put the flashing on unless you go where they're building these 235 houses around here they would have nailed it on the side. You hardly wouldn't do that on a $200,000 house sitting on the water, I wouldn't think. I would think it would be built in. T. 71. However reasonable this assumption, and the unstated assumption that his crew had not (inadvertently) removed the flashing in taking off the existing roof, the evidence as a whole showed there was no flashing around the chimney by the time respondent's crew put down the new shingles.
Recommendation It is, accordingly, RECOMMENDED: That the Construction Industry Licensing Board fine respondent five hundred dollars ($500). DONE and ENTERED this 1st day of January, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 1st day of January, 1991. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Rowlett W. Bryant, Esquire 833 Harrison Avenue Panama City, FL 32402
Findings Of Fact At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor (RC- 0034055), building contractor (CB-C033206), and certified roofing contractor (CC-C035625). At the time of hearing, license RC-0034055 had expired and was no longer in effect. Although Petitioner introduced a "certification of licensure", executed by its custodian of records which purports to establish prior disciplinary action by the Construction Industry Licensing Board against Respondent, said certification references license number CG-C024378. There is no documentation in the record to establish that Respondent has license number CG-C024378, and in any event if this is, in fact, his license, this case does not involve license number CG-C024378. The records' custodian was not present to testify or to be cross-examined, and therefore this apparent discrepancy in the certification is unexplained. Further, the only documentation introduced to support prior disciplinary action by the Board against one of Respondent's licenses, is a certified copy of an order dated August 7, 1985 (Case No. 0051210), but this case involves license RC-0034055, which expired in July 1987 and is no longer in effect. Therefore, it has not been established by evidence in this record that Respondent has previously been subject to disciplinary action by the Construction Industry Licensing Board concerning his current valid licenses, CB- C033206 and CC-C035625. Respondent was the qualifying agent at all times material hereto, of Unique Construction, Inc., 1302 North Clearview Avenue, Tampa, Florida. On February 25, 1986, George Katsarelis entered into a sales contract with Unique Construction, Inc., to reroof his entire house at 6 Venetian Court, Tarpon Springs, Florida. Respondent was not present when the contract was executed, and had not met Katsarelis at the time work commenced on the job. Katsarelis specified to the salesman representing Unique Construction, Inc., that he wanted to be sure all required local permits were pulled for this job. Work on the Katsarelis roof began within only a few days of the execution of the sales contact. Crews from Unique Construction tore off approximately 80% of the Katsarelis roof before a City of Tarpon Springs building inspector stopped work on the job because no permit had been obtained. Thereafter, it took two days for Unique to put a temporary cover over Katsarelis' uncovered roof while a permit was being obtained. A permit was finally obtained on March 19, 1986, and the work was completed. Katsarelis paid Unique Construction, Inc., $7,000, the full contract amount, for reroofing of his home. Between February 25, 1986, and December 1987, Katsarelis had to repeatedly call Unique Construction since his roof leaked every time it rained. A ten foot ceiling section in his Florida room eventually caved in due to these leaks. In December 1987, Respondent came to Katsarelis' home for the first time and decided to reroof the whole house for a second time. No additional payment was required or made by Katsarelis for this second reroofing job. After a hard rain in April 1988 his roof again leaked, and within a week prior to hearing, Respondent made a third attempt to correct Katsarelis' leak problem. According to expert testimony and evidence offered at hearing by Owen Baynard, who was accepted as an expert in roofing, work performed by Unique Construction on the Katsarelis roof was incompetent and the result of a lack of proper supervision of the work crews by the qualifying agent, Respondent. The job fails to meet the standards of local building practices. There was improper and insufficient preparation of the roof surface, a lack of adequate adhesive, nailing, and mopping to meet Sections 101, 107, 109 and 113 of the Southern Standard Building Code Roof Coverings standards, applicable in this case. The only way to remedy Katsarelis' continuing leak problem is to completely redo all work done by Unique Construction on his roof, and completely reroof his house in a workmanlike manner. As qualifying agent for Unique, Respondent was responsible for beginning work on Katsarelis' roof without obtaining or assuring that someone else had obtained a local permit for the job. A permit was not posted on the site when this work began, in violation of local building code requirements. Respondent failed to obtain required local building department inspections on the job. Respondent's actions on the Katsarelis job, as qualifying agent and in actions taken personally on two occasions to correct continued leakage, were incompetent and of substandard quality. On December 17, 1986, Lawrence E. Burkett entered into a sales contract with Unique Construction, Inc., to reroof his home on 62nd Avenue, N.E., in St. Petersburg, Florida. Work commenced shortly after this contract was executed, and upon completion Burkett paid Unique $3,657, the contract amount. Respondent admits that leaks continued to exist in Burkett's roof for nine or ten months after Unique's crews worked on his roof. Finally, on September 16, 1986, Unique's crew replaced a section of roof and this corrected the leaking. In an attempt to correct or prevent damage from leakage, Unique's crews installed pans between Burkett's drop ceiling and the roof to catch water which was leaking into his Florida room. A permit was not posted on the Burkett job, but the record does not establish whether a local permit for this job was required to be posted. On or about February 23, 1987, Respondent was issued a letter of reprimand by the United Construction Trades Board of the City of Tampa. However, no action was taken against his local certificate. This reprimand resulted from a roofing job performed by Respondent on the home of Gerald T. Minnick in late 1986. Repeated attempts by Respondent to correct leakage in the Minnick roof failed.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's licenses numbered CB-C033206 and CC-C035625 for a period of six (6) months and imposing an administrative fine of $2,500; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said fine in full, his license shall be immediately reinstated. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of August, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1988. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street Tampa, Florida 33602 William E. Whitlock, III, Esquire 116 East 3rd Avenue Tallahassee, Florida 32303 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board 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 =================================================================
Findings Of Fact At all times material hereto, Respondent Robert F. Copenhaver was holder of a registered general contractor's license number RG 0013968 issued by the State of Florida. At all times material hereto, Respondent qualified Southwest Building and Development Corporation with the Construction Industry Licensing Board. See Petitioner's Exhibit #1. At all times material herein, neither Respondent nor Southwest Roofing and Waterproofing, Inc., were registered or certified as a roofing contractor with the Board. See Petitioner's Exhibit #1. At all times material herein, Respondent was the holder of a Class C building contractor's license and a specialty limited roof-coating and spraying license, both issued by Sarasota County. See Transcript of Proceedings, page Said license was limited to work done to cosmetically improve a roof. Any work done to repair leaks required a standard roofing license. Respondent and Don Cogswell incorporated Southwest Roofing and Waterproofing, Inc. (SRWI), under the laws of the State of Florida on January 10, 1980. See Petitioner's Exhibit #5. All work done by SRWI was done under the Sarasota special roofing contractor qualification. Respondent was president of the corporation until December 15, 1980, at which time he resigned and transferred all his stock to Cogswell. See Petitioner's Exhibit #6. On February 14, 1980, SRWI contracted with A. T. Esslinger to completely waterproof a roof at 816 Idlewild Way, Sarasota, Florida. See Petitioner's Exhibit #2. The only warranty referenced in the contract was a separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibit #3A. Respondent gave the Esslingers a letter (Petitioner's Exhibit #3B) in which SRWI guaranteed to stop the leaks in their roof. This letter referenced SRWI's standard warranty. To waterproof the roof, gravel was removed from the existing roof and a cement-like surface applied to the roof. On June 4, 1980, SRWI contracted with Earl Mowry to waterproof a roof at 5339 Gulf Drive, Holmes Beach, Bradenton, Florida, in accordance with specifications originally attached to the contract but not introduced at hearing. See Petitioner's Exhibit #4. To waterproof the roof, a concrete material was applied to the existing roof. On June 25, 1980, SRWI contracted with Maynard Howe to waterproof a roof over the family room in accordance with attached specifications at 2271 Mill Terrace, Sarasota, Florida. The only warranty given was the separate standard warranty to be delivered at the time of final payment. See Petitioner's Exhibits #7A and #7B. To waterproof the roof, a concrete material was applied to the existing roof. All of these contracts provided that SRWI would apply MARKEM Elastic Waterproofing material so that said roof areas were completely covered and free of all leaks. See Petitioner's Exhibits #9A, #9B and #9C for data concerning MARKEM. After the work was completed, each of the roofs in question leaked. When Respondent was contacted after he had left SRWI, he advised each of the persons that he had left the company and could not assist them. Respondent referred them back to SRWI, MARKEM or the company who became the MARKEM distributors in the area. None of the persons obtained relief from SRWI, the Respondent, MARKEM or MARKEM's new distributor. See Transcript of proceedings, pages 16, 25, 34. Howe sued SRWI and served Respondent with suit papers. In response, Respondent sent Howe a notarized document (Petitioner's Exhibit #6), which states that as of December 15, 1980, Respondent had resigned as president of SRWI and had transferred all of his stock to Don Cogswell. On October 14, 1980, SRWI contracted with Catherine Gilligan to waterproof her roof at 4819 Graywood Lane Meadows, Sarasota, Florida. See Petitioner's Exhibit #12. Gilligan paid SRWI $174 as partial payment on this contract. SRWI never did any work pursuant to the contract. Gilligan called SRWI, but to her knowledge never spoke to the Respondent concerning when SRWI was to start the job. Gilligan waited for one month, then called SRWI every day for three weeks. In the fourth week, SRWI's telephone was disconnected. This date reasonably coincides with the date Respondent resigned, December 15, 1980. No evidence was received of disciplinary action against SRWI or the Respondent by Sarasota County.
Recommendation Having found Respondent Robert W. Copenhaver guilty of violating Section 489.129(1)(j), Florida Statutes, it is recommended that the Construction Industry Licensing Board suspend the registration of Respondent as a general contractor for one year. DONE and RECOMMENDED this 21st day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 21st day of December, 1982. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert W. Copenhaver 2409 34th Street, West Bradenton, Florida 33505 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, the penalty which should be imposed.
Findings Of Fact At all times material to this case, the Respondent, Harry Bradshaw, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0033812. On August 26, 1986, Respondent's license as a registered roofing contractor was suspended by Petitioner. Respondent's license remained suspended at all times material to this case. On December 16, 1987, Respondent contracted with the Moose Lodge located in Hialeah, Florida, to reroof the Moose Lodge building. The proposal submitted by Respondent contained representations that Respondent was licensed as a registered roofing contractor and that he was insured. Respondent knew that his license as a registered roofing contractor was under suspension. Respondent had no insurance. The contract between Respondent and the Moose Lodge provided that Respondent would perform the work and supply the materials for the sum of $6,200.00. The sum of $3,200.00 was paid to Respondent in advance of his beginning the job. Respondent used the sums advanced to purchase materials and supplies. The remaining $3,000.00 was to have been paid upon Respondent's completion of the job. During the negotiations that resulted in the contract between Respondent and the Moose Lodge, Respondent represented that the job should be completed in time for the functions scheduled for New Year's Eve. While Respondent had purchased the materials needed for the job and had done a substantial amount of work on a portion of the roof, he was unable to complete the work by the New Year. Respondent was ordered to stop work on the job on January 26, 1988. Respondent did not abandon the job. Although he was slow in performing the work, a part of Respondent's delay in performance was caused by rain. There was no evidence as to what would have been a reasonable period of time for Respondent to have completed the job. On January 26, 1988, the administrator for the Moose Lodge complained to the Building Inspection Department for the City of Hialeah, Florida, because the administrator was not pleased with the progress that Respondent was making toward completion of the job. The administrator was told by a representative of the Building Inspection Department on January 26, 1988, that Respondent had no license and that the required permit had not been pulled. The administrator was told to prohibit Respondent from working on the roof. Immediately thereafter, the administrator instructed Respondent to do no further work on the roof. The members of the Noose Lodge completed the job started by Respondent for less than $3,000.00, the balance of the amount that would have been owed Respondent if he had finished the job. Respondent knew that a permit was required for this work. Respondent also knew that only a licensed roofing contractor could pull the required permit. Respondent proceeded with the job when he was unable to persuade a licensed roofing contractor to pull the permit for him. Petitioner filed an administrative complaint against Respondent alleging that at the time he contracted with the Moose Lodge, Respondent's license was suspended, thus violating the provisions of Section 489.129(1)(j), Florida Statutes, and the provisions of Section 489.127(1)(e), Florida Statutes. The administrative complaint also alleged that Respondent failed to perform in a reasonably timely manner and/or abandoned the job in violation of Section 489.129(1)(m), Florida Statutes, and Section 489.129(1)(k), Florida Statutes. Respondent denied the allegations of the administrative complaint and timely requested a formal hearing. This proceeding followed. Respondent was previously disciplined by the Construction Industry Licensing Board, and his license remained under suspension at the time of the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Section 489.127(1)(e), Florida Statutes, and Section 489.129(1)(j), Florida Statutes. It is further recommended that the final order revoke Harry Bradshaw's license in the State of Florida as a registered roofing contractor. DONE and ENTERED this 31st day of October, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. COPIES FURNISHED: Harry Bradshaw 5590 East Seventh Avenue Hialeah, Florida 33013 David M. Gaspari, Esquire Adams, Coogler, Watson & Merkel, P.A Suite 1600 NCNB Tower 1555 Palm Beach Lakes Boulevard West Palm Beach, Florida 33402-2069 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
