The Issue Whether respondent's license should be revoked, suspended or restricted, or whether an administrative fine should be levied against him, or whether he should be reprimanded for the reasons alleged in the administrative complaint?
Findings Of Fact James M. McCurley is a registered roofing contractor, holding Florida License No. RC 0042226. Licensed in Florida since 1982, Mr. McCurley has been in the roofing business for 25 years all told. Although he holds a state license, he is registered to do roof projects in Broward County only, 82-3201-R-R. Thomas v. Shoop, a real estate broker, manages the Mayani Biscayne Condominiums in Miami at 5995 Biscayne Boulevard, (Mayan) and the Camelot South Apartments on 17th Street in Fort Lauderdale (Camelot), which consist of three buildings (A, B and C). Above Camelot B's roof, which "is not properly set up for drainage at all," (T. 183), loomed a leaking water tower, which has only recently been fixed. In the summer of 1983, all four buildings' roofs leaked; and the roofer who had given long-term guarantees on Camelot's roofs had gone bankrupt. An associate of Mr. Shoop knew one John Emig, who was a salesman for Mr. McCurley. Messrs. Shoop and Emig visited the roofs and discussed the problems. In order to "mak[e] sure that they got a reputable roofer. . . [Mr. Shoop] did great deal of research with a list . . . [of] people that [Mr. McCurley] had done work for and were satisfied." (T. 16). Through Mr. Emig, Mr. McCurley offered to replace the 8,000-square-foot roof on Camelot B for $25,000. Further conversations eventuated instead in an agreement, reduced to a separate writing with respect to each Camelot building, Petitioner's Exhibit No. 2, that called for Mr. McCurley to repair, clean and paint the root and soffits of the three Camelot buildings. The contract for Camelot A characterized the work both as restoration and as preventive maintenance. Repairs were to be effected "as needed." The contracts recited the roofing contractor's "opinion [that] the following maintenance work should put this roof and mansard in the best possible condition, and that it reasonably can be expected to have up to a five year service life." Petitioner's Exhibit No. 2. The agreements specified installation of a total of 35 vapor pressure release vents and stated that Mr. McCurley was to: Check and reseal where needed all pitch pockets, using 10-year rubberized elastomers. . . . Remove all blistering coating from the roof decks and at all such spots install a repair patch. Repair any bulges or blisters and treat all cracks as needed using elastomeric and waterproofing membrane. Petitioner's Exhibit No. 2 The contracts were typed on printed forms. When Mr. Emig and Mr. Shoop signed the roofing contracts on August 24, 1983, Mr. McCurley was not present. At the time the agreements were signed, "3 was substituted for "1" in the phrase, "The above work . . . carries with it our 1 year Pree Service Guarantee should any leak occur . . ." Petitioner's Exhibit No. 2. Unchanged was a typewritten paragraph on each contract stating: In this particular situation our warranty shall be a one year unconditional one, which is standard procedure in the industry. Petitioner's Exhibit No. 2. Although Mr. Shoop dealt primarily with Mr. Emig in negotiating the contract, Mr. Shoop and Mr. McCurley went up on a roof together at one point before the contracts were signed. On September 20, 1983, an addendum to the contracts, calling for work on the buildings other than roofing, was executed. The contract price for the roofing work was less than 40 cents per square foot. The roofs in the Camelot complex were built-up tar and gravel, coated with a cementitious fill. Ordinarily insulation lies underneath a built-up roof of this kind. The vapor pressure release vents were proposed and contracted for on the assumption that insulation underlay the tar, insulation which permitted lateral movement of water and water vapor trapped by the tar and cementitious fill. Pressure attendant on vaporization of water trapped underneath the tar and fill is the apparent cause of the cracking and blistering that led to the leaks. In installing the first vapor pressure release vent, Mr. McCurley discovered that the tar had been placed directly on the roof sheathing. He explained to Mr. Shoop that there was no good reason to go forward with installation of the other vents because the impermeability of tar and fill precluded lateral movement of moisture and, therefore, its escape in any significant quantity through the vents. Mr. Shoop insisted, however, that all the vents called for by the contract go in, and Mr. McCurley complied. The vents stood useless (T. 99) but firmly affixed to the roof as recently as five or six months before the hearing. (T. 94) Thereafter, many were dislodged by the contraction and expansion of the roof, aggravating the leakage problems. To meet the contract requirement of an "elastomeric and waterproofing membrane," Mr. McCurley employed a coating he had never used before, but one which was advertised by a company listed on the New York Stock Exchange, Rohm & Haas, as capable of withstanding ponding water. At the time he entered into the contract, Mr. McCurley did not know that this claim was false. In the fall of 1983, he applied this coating not only to places where cementitious fill had bulged, blistered, or cracked, but also to unblemished portions of the Camelot roofs, covering them entirely twice, before applying a final coat of high gloss white paint. Before he was paid, Mr. McCurley had done everything called for by the contract. On May 30, 1984, however, Mr. Shoop told Mr. Emig that old leaks had reappeared and that new leaks had sprung open. Mr. Shoop also telephoned and left word for Mr. McCurley to this effect on June 15, 18, and 19. On July 5, 1984, Mr. Shoop wrote Mr. McCurley a letter, Petitioner's Exhibit No. 4, in response to which Mr. McCurley applied another acrylic waterproofing compound and plastic cement. When he finished, "it looked from a laym[a]n's point of view that it was a good job." (T. 31). In November of 1984, the B building roof still looked good but it leaked. In response to complaints, Mr. McCurley returned several times to repair blistered areas with acrylic waterproofing and to apply plastic cement. Typically these repairs prevented leaks the next hard rain but not the one following. Camelot B needs reroofing, which involves taking out the existing roof and building up a new one with tar and gravel, the approach Mr. McCurley originally recommended.) Mr. Hilson, who has spent approximately 30 years in the roofing business, testified that the coatings that Mr. McCurley used were permeable, and inappropriate for use on horizontal surfaces on that account. Specifically, after inspecting Camelot B's roof, Mr. Hilson testified: It has continued to leak from what we was shown and told. I made a note here that it takes a zero perm rating to hold back water, and these coatings apparently have no such perm rating. These coating[s] are breathable. And because they are breathable they allow water to go through them and become trapped, underneath the cementious fill. The only type of coating that we know of that these type of coatings were normally used on vertical surfaces where water can't stand on them, showing these photographs here the water where it does pond on this coating, it deteriorates the coating. It actually eats it. The fungus attacks it. Basically that's it, except where the bottom statement that I made is that these type of coatings cannot hold back water and should not be used to try to hold back water. And anybody with any roofing knowledge should understand or know they can't hold back water. (T. 71, 72). Respondent McCurley testified that he did not know what numerical "perm rating" the material he used had been given, but that he relied on the manufacturer's representations that it would withstand ponding, when he told Mr. Shoop that he thought it would work. He did not dispute that the coating had failed. Mr. Hilson was of the opinion that not even an impermeable coating would have worked, because it would not only have prevented water's penetrating, but would also have trapped moisture already in the cementitious fill. In his view, when the trapped water vaporized, it "would have blown the system off". Petitioner's Exhibit No. 7. Mr. McCurley also contracted with Mr. Shoop to work on the roof of the Mayani apartment building in Miami. For $1200.00, he undertook, among other things, to check and reseal as needed "litch [sic] pans," repair three leaks in the deck, cover "all bald spots with gravel," and install Gravel Lok over the entire gravel roof area. The leak repairs were unconditionally guaranteed for a year. After work was completed, Mr. McCurley received full payment on September 6, 1983. Before he began work, Mr. McCurley telephoned some government office in Dade County and asked whether a permit was "required to put a cement coating over a gravel built-up roof," (T. 9) and was told that none was required. After the present proceedings were instituted he called again and got the same answer. As a practical matter, persons not licensed as roofers, including "the average painter, goes out and does a waterproof of a roof." (T. 103) Repair of the three leaks probably cost Mr. McCurley $30.00. (T. 99) When he began on the Mayani roof Mr. McCurley was aware that Dade County's code is similar to Broward County's, which incorporates the South Florida Building Code, and knew specifically that Dade County required a permit for roofing repairs "after Three Hundred dollars," (T. 98) a permit he was ineligible to obtain. Dade County does indeed require permits for the "application, construction or repair of any roof covering. . .exceeding three hundred dollars (S300.00) in value of labor and materials, . . . or for work exceeding 2 roofing squares in extent," Petitioner's Exhibit No. 6, and the requirement applied to the job Mr. McCurley did at Mayani. (T. 66). When Mr. Shoop reported the Camelot leaks to Mr. Emig on May 30, 1984, he also reported leaks at Mayani that had appeared after heavy rains in Miami. Eventually respondent repaired the Mayani roof, but problems developed again in November of 1984.
The Issue The issues to be determined are whether Respondent violated the charged provisions of Section 489.129, Florida Statutes (2006), and if so, what penalty should be imposed for his conduct?
Findings Of Fact Respondent is and has been, at all times material to the allegations in the Administrative Complaint, a certified roofing contractor in the State of Florida, having been issued license number CCC 132557. At all times material to the allegations of the Administrative Complaint, Respondent was the primary qualifying agent for JCSI Certified Roofing Contractors (JCSI), which has been issued certificate of authority number QB 47568. On or about April 7, 2006, Respondent, doing business as JCSI, entered into a contract with Mr. and Mrs. John Shields to install a stone coated steel shingle roof at 518 Ponte Vedra Boulevard, in Ponte Vedra Beach, Florida. The contract amount was $50,850.00, and the contract included the following work: Scope of Work: Steel roof to be mechanically fastened on a single ply system and consist [sic] of the following: Peel & Stick base sheet (same as Ice and water Shield), stone coated drip edge. Mechanically fasten roof panels according to wind chart specifications. Matching stone coated trim. All flashing to be minimum 26 gauge. Vents, valley metals, and flashing as required. Stone coated steel roof, color selection by Client. Steel roof to be installed to manufacturers wind chart specifications. All work to be done in a workmanlike manner with complete job cleanup of roofing debris placed in on-site container provided by Owner/Contractor. The draw schedule in the contract was listed as follows: Deposit $5,000.00 at signing (dry- in);$15,000.00 order materials; $15,600.00 At beginning of production, Balance at completion. The contract did not contain Respondent's license number or the certificate of authority number of JCSI Certified Roofing Contractors. The Shields paid the initial deposit of $5,000.00 upon signing the contract. Within a couple of weeks, Respondent performed the dry-in for the roof. On August 17, 2006, the Shields paid an additional $15,000.00 with check number 1461, which was deposited into JCSI's account August 18, 2006. In total, the Shields paid $20,000.00 toward the contract price. Respondent also installed flashing for the project, although the timing of this part of the job is unclear from the record. However, from testimony presented, it is found that the flashing was installed sometime in August 2006, in the two weeks before or after the August 17, 2006 payment. No other work was performed on the job by Respondent or JCSI. Respondent ordered materials for the roof from Gerard Roofing in June 2006. However, he did not receive the materials from the company because his credit with Gerard was over- extended. He claims that he reported this to the Shields and suggested that they pay for the materials directly and deduct that amount from the contract price, and he would finish the job. The order form from Gerard Roofing Technologies indicates that the roofing materials ordered in June 2006 totaled $21,570.11. Assuming that the order form represented materials for the Shields job only, had the Shields agreed to Respondent's proposed alteration in the contract, they would have paid $41,570.11 toward the completion of the roof at a time when the only work performed was the initial dry-in and possibly the flashing installation. This would have represented 81.75% of the contract price. As it is, the Shields had paid 39.33% of the contract price already. The Shields did not agree with Respondent's proposed alteration of the contract. By February 2007, no additional work had been performed on the roof and Respondent did not re-order the roofing materials. At that point, Mr. Shields terminated the contract. The investigative costs incurred by the Department, not including those associated with an attorney's time, are $288.22.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Subsections 489.129(1)(i), (j) and (m), Florida Statutes, as charged in Counts I, IV and VI of the Administrative Complaint; finding that Respondent did not violate Subsections 489.129(1)(g)2., (i) and (o), Florida Statutes, as charged in Counts II, III and V of the Administrative Complaint and dismissing those counts; imposing an administrative fine of $250 for Count I; imposing an administrative fine of $2,500 and placing Respondent's license on probation for a period of four years for Count IV; imposing an administrative fine of $2,500 for Count VI; requiring restitution in the amount of $15,000.00 to John and Christine Shields2/ in accordance with Florida Administrative Code Rule 61G4-17.001(5); and imposing costs in the amount of $288.22. DONE AND ENTERED this 28th day of August, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2009.
Findings Of Fact During times material, Respondent was a certified roofing contractor, having been issued license number CC C014700 and was the sole qualifier for Gulfstream Contractors, Incorporated (Gulfstream). Gulfstream entered into a contract with Dr. Paul J. Schwartz, a chiropractor, to repair the roof to Schwartz' office building located at 1565 South Missouri Avenue, Clearwater, Florida. The contract between Gulfstream and Schwartz was entered into on July 22, 1985, and for a fee of $1,375.00, Gulfstream contracted to repair Schwartz' roof by tearing off the old gravel roof, install new decking and lead boots, to galvanize the roof and to remove all debris brought about as a result of the contracting activities. Gulfstream guaranteed the roof to be free of defects for a period of ten (10) years. (Petitioner's Exhibit 1.) Gulfstream commenced the repairs to Schwartz' roof without obtaining a construction permit and failed to call for progress inspections as was required by the City of Clearwater. Within one month following Respondent's completion of Schwartz' roof, Schwartz encountered leaks to the interior of his office building resulting in stained carpet, interior walls, and furniture in several of his examining rooms. Schwartz made repeated calls to Gulfstream in an effort to get Gulfstream to honor its ten-year guarantee on the roof. Respondent initially attempted to correct (repair) the roof, although he failed to return to the project after two or three visits during the first two months following completion of the project during July 1985. Thomas Chiplinsky is an inspector for the City of Clearwater whose area of responsibility includes the inspection of roofing projects. As part of his duties, Inspector Chiplinsky inspected Schwartz' roof following a complaint received by the City of Clearwater and found that the roof was installed in July 1985 by Gulfstream and no permit was obtained or inspections called for or made by Respondent. Inspector Chiplinsky observed soft spots in the roof and noted that Respondent failed to install counter flashing. Respondent acknowledges his responsibility as qualifier for Gulfstream. Respondent admits that he neither obtained a permit to perform the roof repairs, nor did he call for inspections as required by the City of Clearwater. Within months after Respondent completed the Schwartz project, the entity, Gulfstream Contractors, was disbanded and therefore no one responded to Schwartz' request that his roof be repaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing a $500 fine against Respondent, payable to Petitioner within 30 days of the entry of its Final Order. Respondent's license number CC C014700 be suspended for a period of one (1) year within the further condition that Respondent be allowed a period of 20 days following the entry of the Final Order to revisit the Schwartz project and make the necessary repairs to correct the roof repairs and abide by the terms of his guarantee. In the event that Respondent makes the necessary repairs within 30 days of entry of the Final Order, it is further RECOMMENDED that the period of suspension be suspended. RECOMMENDED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 16th day of March, 1989. COPIES FURNISHED: David Bryant 500 North Tampa Tampa, Florida 33602 Richard Domingo 4032 41st Avenue North St. Petersburg, Florida 33710 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 3220
The Issue Whether Respondent violated Subsections 489.127(1)(f) and 489.531(1), Florida Statutes (2005),1 and, if so, what penalty should be imposed.
Findings Of Fact Mr. Usher is not licensed to engage in contracting as a state-registered or state-certified contractor in the State of Florida, and he is not licensed, registered, or certified, pursuant to Chapter 489, Part II, Florida Statutes, as an electrical contractor. Mr. Usher works under the name of "J" Squared Construction ("J" Squared). Rose Linthicome is the owner of Divine Connections Realty, whose business address was 2108 Third Avenue, Crestview, Florida. As a result of Hurricane Ivan, Ms. Linthicome's building located on Third Avenue sustained damage to the roof. Ms. Linthicome contacted Norcross Construction Company (Norcross) to get a bid for the roof repair. Norcross asked Mr. Usher to prepare a proposal for the work as a subcontractor, which Mr. Usher did. After receiving the proposal from Mr. Usher, Norcross submitted a bid to Ms. Linthicome, but the cost was well beyond the amount which Ms. Linthicome's insurance paid for the damage. Ms. Linthicome could not afford to use Norcross to repair the roof. Mr. Usher approached Ms. Linthicome and told her that he could do the work as "J" Squared for less than the amount bid by Norcross, if Ms. Linthicome would pull the permits as the building owner. Ms. Linthicome agreed for "J" Squared to do the work for labor costs of $26,400.00. Ms. Linthicome was to pay for materials and supplies. The total cost for the new roof system and materials was not to exceed $52,400.00 Mr. Usher prepared the contract for the new roof system. The contract was titled "'J' Squared Subcontract Agreement." In the contract Ms. Linthicome was referred to as the contractor. The contract set forth the work to be performed as follows: "J" Squared is subcontracted to do a complete roof rip out and new roof system installation on the existing structure. This includes the rip out and the new installation of a new roof system: THE RIP OUT INCLUDES: The removal of ceilings, lights, fans, vents, smoke alarms and any other item attached to the ceilings. The removal of the existing plywood, trusses, and debris of the old roof, and Any and all other aspects that are considered reasonable and necessary to be performed in order to remove the roof and prepare the structure for the new roofing system. THE NEW INSTALLATION INCLUDES: The Installation of New Trusses manufactured by Freeport Truss Company, The Installation of New Plywood and felt paper to dry in the new roof system, The Installation of Rat Runs, Blocking, Hardware, Strapping to meet code, The Installation of New 20 Year Architectural shingles, The Installation of New Rain Gutter System, The Building of the Front Porch Cricket and New Ceiling with arched entry, the Installation, building or attachment of any and all aspects of a typical roofing system redo, The Re attachment of all existing ceilings. (Moving the garage ceiling to the inside front room and replacing Garage ceiling with Sheet Rock, The Reinstallation of all fixtures, lights, fans, smoke alarms, etc on the existing new ceilings, The Installation of new communications, network and other plugs and outlets as agreed to on 10/04/05, and Any and all other aspects that are considered reasonable and necessary to be performed in order to pass inspections and for the new roofing system to be considered as complete. Ms. Linthicome did not tell Mr. Usher that she was a licensed contractor, and Mr. Usher's testimony that he thought that Ms. Linthicome was a licensed contractor is not credible. It was never intended that Ms. Linthicome would supervise the installation of the new roof system. It was always the intent of Mr. Usher and Ms. Linthicome that Mr. Usher would directly supervise the work. As the building owner, Ms. Linthicome could pull the building permit, but Mr. Usher could not pull the building permit because he was not a licensed contractor. Mr. Usher ordered the trusses from Freeport Truss Company and requested that Ms. Linthicome write two checks to the Truss Company, one check for $9,000.00 and one check for $6,000.00. Ms. Linthicome also gave Mr. Usher a check made out to "J" Squared for $8,4000.00 for the initial payment for labor. Mr. Usher hired the laborers to work on the project. He intended to subcontract with an electrician to perform the electrical work on the project. Mr. Usher and his crew removed the roof and failed to complete the project. In the investigation and prosecution of this case, the Department incurred costs in the amount of $369.09, excluding costs associated with an attorney's time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Usher violated Subsections 489.127(1)(f) and 489.531(1), Florida Statutes; imposing an administrative fine of $10,000; and assessing investigative costs of $369.09. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2007.
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 30th day of August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue The issues are based upon an administrative complaint brought by the State of Florida, Department of Professional Regulation against Phillip E. Sheffield, Respondent. In particular, Respondent is said to have violated the building code of the City of Jacksonville, Florida by failing to obtain a building permit before commencing construction work related to a roofing project and building the roof to a slope that was contrary to that local building code. For violations of the City of Jacksonville building code, Respondent is said to have violated Section 489.129(1)(d), Florida Statutes, by willful or deliberate violation and disregard for the applicable building code of the municipality. Finally, Respondent is said to have violated Section 489.113(3), Florida Statutes by failing to subcontract roofing work.
Findings Of Fact Respondent is a registered residential contractor having been issued license number RR 0034888. He owns and qualifies Allstate Building Contractors, Inc. Respondent submitted a bid to the City of Miami for renovation and roofing work on a 50-year-old home owned by Margaret Donlevy pursuant to the city's neighborhood rehabilitation program. The Rehabilitation Specifications upon which Respondent bid were written by Roger Rojas, a rehabilitation estimator for the city. The portion of the Specifications pertaining to the roofing work reads only as follows: Remove existing roof covering and replace damaged sheeting and rafters. Apply one 30 No. layer of felt, tin-tacked and then apply two layers of 15 No. felt moppedon. Flood coat and apply gravel (check roof decking (Allow $1.05 per foot) replacing dot decking. Respondent was awarded the Donlevy job. On October 17, 1980, Respondent and Donlevy entered into the one-page form contract being utilized by the city for its rehabilitation projects. The city's Agreement for Rehabilitation contains a date, the names of the contractor and the property owner, the price of the contract, and the deadline by which the work must be done. The Agreement contains no information regarding the work to be performed or the location of the job site. Rather, the Agreement recites the names of various documents, recites that those documents are the contract documents, and incorporates those documents by reference. Only the Agreement for Rehabilitation, the Specifications, and the Proceed Order were offered in evidence. On October 17, 1980, the City of Miami issued its Proceed Order authorizing Respondent to commence work on the Donlevy residence no later than October 20, 1980, which work was required to be completed within 24 calendar days after starting construction. On October 21, 1980, Rojas issued a Change Order on the Donlevy residence which contained the following Description of Work Change: Replace rotted and deteriorated [sic] roof decking and rafters. 2. Upgrade entire electrical system. Install 3 duplex outlets in kitchen area. Move meter to outside of residence. Rojas's authorization to approve the Change Order came from James W. Wager, the senior rehabilitation estimator for the Department of Community Development of the City of Miami. On October 22, 1980, Respondent signed a Contractor's Final Invoice, Release of Liens, and Warranty which recited, inter alia, ". . .that the roof work performed is guaranteed for a period of five (5) years for both workmanship and materials. The undersigned will replace faulty materials or faulty workmanship within the period of the guarantee free of charge." On October 24, 1980, Respondent issued a separate "Roof Guarantee" to Donlevy which provided as follows: The Company guarantees its material and workmanship for five (5) years. It will replace faulty material or faulty workmanship within the period of the guarantee free of charge. On October 28, 1980, the City of Miami issued its check to Allstate Builders in full payment of the Donlevy contract. In performing the roofing work on the Don levy residence, Respondent took off all the existing roof covering, down to the bare deck; repaired all the rotten rafters on the top part of the roof truss that were visible; installed a new roof covering, applying one layer of felt and putting on two layers of 15 No. felt; installed flashing with 90 No. slate, and then laid gravel. Both Rojas and Wager made frequent inspections during the time that Respondent was working on the Donlevy residence, Rojas because it was a job for which he had been assigned responsibility, and Wager because the Donlevy rehabilitation project was one of the first performed pursuant to the rehabilitation program of which Wager was in charge. Respondent successfully completed all interim inspections and the final inspection on the roofing work performed by him. Several months after completion of the roofing work on the Donlevy residence, Respondent was advised that there was a leak over the carport area. He immediately responded and repaired that leak. While at the Donlevy residence, he noticed an abundance of leaves on the roof, apparently attributable to a large tree next to the house. He personally removed the leaves. He advised Rojas and Wager that the tree should be removed, since it created a potential for clogging the drain on the roof. He was advised there was no grant money for tree removal. Wager described the roof on the Donlevy residence as being a strange roof. Although the roof was flat, it was not an average roof. Only one drain was located on the entire roof--a rectangular hole approximately four inches by three inches with a Philadelphia-type gutter. That drain system appeared to have been installed with the roof when the house was originally built, and Respondent's job specifications did not include any changes to the drain system. In September 1981, a portion of the roof caved in. Although Respondent suggested an immediate inspection, the City of Miami employees desired to wait a few days. On October 1, 1981, Respondent, Rojas and Wager met at the Donlevy residence and inspected the roof. Wager took the position that all repairs necessitated by the cave-in were covered by Respondent's warranty, and Respondent took the position that the cave-in was caused by a collapse of the roof system and was not related to any work performed by him. After heated discussion, Wager ordered Respondent off the property. On the following day, Wager caused to be hand-delivered to Respondent a letter advising Respondent that a replacement contractor had been engaged and that Respondent was to make no attempt to correct the damage to the Donlevy residence. Between the time Respondent commenced working on the Donlevy roof in October 1980 and the time the cave-in occurred in September 1981, no citation was issued to Respondent for any defects in workmanship or materials, and no written complaints concerning any such defects were ever made. The only verbal complaint concerned the leak in the carport area, which Respondent immediately repaired. No leak occurred again at that site. The cave-in was caused by the collapse of deteriorated wood, the weight of pooling water, and the size of the single drain (which probably became blocked by leaves). Respondent's contract with Donlevy as the Specifications were written by Rojas did not include putting in a new roof system, and Respondent did not replace the roof system in the Donlevy residence. Respondent's warranty would not cover work not contracted for and not done by him. Petitioner's witnesses admitted that Respondent did not replace the roof system in the Donlevy house and further admitted that even with the roof covering cleared off, all the rafters (the component which collapsed) could not be seen in order to ascertain their condition. The contractor who replaced Respondent received a Proceed Order from the City of Miami on October 2, 1981. Pursuant to instructions from the city, that contractor replaced the entire roof system and further installed a bigger drain.
Findings Of Fact Petitioner was registered by the State of Florida as a roofing contractor in October 1976, and this registration remained in effect until it expired June 30, 1977. It has never been renewed. Subsequent to obtaining his registration, Respondent gave up his business and started working for another licensed roofing contractor. Not having need for his license, the Respondent did not renew his registration when it expired in 1977. In 1984, Respondent agreed to replace the roof on the residence of Mr. and Mrs. Snow in Sarasota. Mr. Snow is a friend of Respondent's brother and Respondent and Snow agreed the former would do the job for $5,000. Respondent guaranteed the roof for two years. Snow paid the $5,000 for which he had contracted and Respondent replaced the roof. At the time this work was done Respondent held an active license in Sarasota County (Exhibit 9) but was not licensed by the City of Sarasota when he replaced the roof on Snow's residence. Nor did Respondent first obtain a building permit from the City of Sarasota required for the roofing job. After the work was completed Snow became unhappy with the roofing job and Mrs. Snow wanted more gutters added. Respondent had replaced the gutters and drains. He added forty feet of gutter to the rear of the house to replace the ten feet of gutter he removed. He also replaced the drains but, Mrs. Snow was not satisfied. Following the repair, a leak showed up and the Respondent was called to fix it. Upon inspecting the roof and the leak, Respondent concluded the leak was coming from the screen room over the pool and was not from an improperly laid roof. Snow complained to the Sarasota Building Inspection Department who investigated and preferred charges of alleged violation against Respondent for failure to obtain a permit and for working in Sarasota without a city license. Criminal charges were also brought against Respondent for doing the roof work on Snow's residence without having an occupational or city contractor's license to do so. Respondent was found guilty of this charge and placed on probation. Respondent subsequently applied for and was issued a City of Sarasota license as a roofing contractor and obtained a permit for the roofing job on the Snow's residence. A final inspection by Sarasota Building Department concluded the work was done in full compliance with Sarasota Code. Respondent readily acknowledges that he did not have, initially, a valid license when he did the Snow's roof, that he failed to obtain a permit for this job, and all other charges, except that involving an improperly installed roof.
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
The Issue By Administrative Complaint filed on March 24, 1982, the Petitioner, Department of Professional Regulation, charged the Respondent, David Morton, with specific violations of Florida Statutes and Section 81-64 of the City of Hollywood Ordinances. The charged violations generally involve the alleged failure of Mr. Morton to obtain building permits prior to performing roofing repairs and failure to honor and make good certain guarantees that he gave on two roof repair jobs. Petitioner presented the testimony of Carol Glovan, of the City of Hollywood Building Department; Maurice Segall, complainant; and Hershal K. Deuchare, complainant. Petitioner's Exhibits 1 through 7 were received into evidence. Respondent failed to appear and, therefore, presented no witnesses or documentary evidence on his behalf. The counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact Respondent is a registered roofing contractor having been issued License No. RC0030473. David Norton was first licensed as a registered roofing contractor in July, 1977. License No. RC0030473 was issued to David Morton qualifying David Morton Roofing, 6422 Southwest 24th Street, Miramar, Florida 33023. Since qualifying David Morton Roofing, the Respondent has changed business addresses but has not qualified any other business name for the purpose of performing work under his license. On May 8, 1980, the Respondent contracted with H. Deuchare to perform repairs on the roof of the Deuchares' home located at 5521 Buchannon Street, Hollywood, Florida. The contract price was $500. The written contract dated May 9, 1980, and attached as a part of Petitioner's Composite Exhibit No. 3, reflects that the name in which the Respondent was doing business at that time was "David M. Roofing." The contract also provided for a one-year guarantee against faulty material and workmanship. Respondent performed the roof repairs on the Deuchare home but failed to obtain a permit for the work as required by Section 81-64, City of Hollywood Ordinances. After completion of the work, the roof continued to leak, and after two calls from Mr. Deuchare, the Respondent came out and attempted to repair the work. Following this repair effort, the roof leaked worse than before. After continuing calls, the Respondent finally got the leak fixed. However, during the course of making the final repair, the Respondent removed tiles from the roof and broke certain of the tiles. Following completion of the repair, Respondent did not put the tiles back in place and refused to come back and replace the broken tiles. The Respondent made a total of three repair visits to the Deuchare home and on the occasion of each call, was very cordial. On April 22, 1981, Respondent contracted with Maurice Segall to perform roof repairs on the Segalls' home located at 4400 Lincoln Street, Hollywood, Florida. The contract price was $1,075.00. The contract which is attached to Petitioner's Composite Exhibit 4 is dated April 22, 1981, and reflects that the Respondent was doing business in the name of David M. Roofing. The contract also provided for a guarantee for seven years against faulty material and workmanship. The Respondent performed the work on the roof but failed to obtain a building permit prior to beginning the work as required by Section 81-64, City of Hollywood Ordinances. A building permit was later obtained after the repairs were completed. After the Respondent performed the work, the roof continued to leak, and after many calls, Respondent sent someone out to make additional repairs. After Mr. Segall initiated an action with the county licensing board, Mr. Morton did come out and do the roof over again and performed the work in a proper manner. Mr. Morton did obtain a proper hermit prior to performing the work the second time. No charge was made to Mr. Segall for the work performed in redoing the job. Following this work, the roof did not leak.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Construction Industry Licensing Board enter a Final Order finding Mr. David Morton to have violated Florida Statutes 489.129(1)(d) and Florida Statutes 489.119. It is further recommended that the Board impose an administrative fine upon the Respondent of $250 and that the Respondent be placed on probation for a period of six months. RECOMMENDED this 11th day of April, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 11th day of April, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306 Mr. David Morton 6432 S.W. 24th Street Miramar, Florida 33023 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Post Office Box 2 Jacksonville, Florida 32202
