The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Preliminary matters At all times material hereto, Respondent, Juan Rodriguez, was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified general contractor, having been issued license number CG C005171. Respondent was licensed as an individual and not as the qualifying agent of any corporation or other business organization. At all times material hereto, Henry Pena was the sole officer and director of U.S.A. Henry Roofing Corp., a Florida corporation. Neither Henry Pena nor U.S.A. Henry Roofing Corp. (hereinafter jointly referred to as "Pena"), were registered, certified, or otherwise qualified under the provisions of Chapter 489, Florida Statutes, to engage in contracting in the State of Florida. Respondent was clearly aware of Pena's lack of licensure.1 The Zapata job Pertinent to this case, Oscar and Consuelo Zapata owned a one-story commercial building located at 59 Beacom Boulevard, Miami, Florida. On August 1, 1996,2 Mr. Pena, on behalf of U.S.A. Henry Roofing Corp., and Mr. Zapata entered into an agreement whereby U.S.A. Henry Roofing Corp. would replace the roof on the building in exchange for an agreed price of $18,200. A first payment of $8,000 was to be paid after the first inspection, and the balance of $10,200 was to be paid following the final inspection. Later in the month of August, Mr. Pena presented a building and zoning permit application, as well as a request for permit, to Mr. Zapata (as owner of the property) for signature. (Petitioner's Exhibit 8.) Following Mr. Zapata's signing, Mr. Pena delivered the forms to Respondent who signed as the contractor. Thereafter, on or about September 3, 1996, Respondent submitted the forms to the City of Miami to obtain a building permit for the re-roofing job. Respondent was not then, nor was he ever, under contract to make improvements to the Zapata property, and his sole involvement was to obtain a permit so Pena could proceed with the job. The permit was issued on or about September 5, 1996.3 On September 17, 1996, Pena began work on the roof, and ceased work the same day when the roof collapsed.4 With the discovery that Pena was not licensed or insured, Mr. Zapata ultimately contracted with another company (that was licensed) to re-roof the building for $16,000. That contract was duly fulfilled, and the re-roofing of the Zapata building was accomplished (notwithstanding the roof collapse) without financial loss to the Zapatas.5 Respondent's lapse of insurance coverage Respondent's liability and property damage insurance policy was terminated June 25, 1996, and was not reinstated until September 19, 1996. Respondent does not dispute the lapse in insurance coverage. (Petitioner's Exhibits 6 and 10, and Transcript, at pages 76-77, and 80-81.) The costs of investigation and prosecution At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totalled $306.09, as of January 27, 1999. (Petitioner's Exhibit 7.) Previous disciplinary action On January 18, 1996, the Department entered a final order which found the Respondent guilty of the violations set forth in a two-count Administrative Complaint issued March 25, 1993. (Petitioner's Exhibit 1.) In that complaint, the Department charged (in Count I) that Respondent violated the provisions of Subsection 489.129(1)(e), Florida Statutes, "by performing any act which assists a person or entity in engaging in the prohibited uncertified and unregistered practice of contracting, if the cerfificateholder or registrant knows or has reasonable grounds to know that the person or entity was uncertified and unregistered," and (in Count II) that Respondent violated the provisions of Subsection 489.129(1)(m), Florida Statutes, "by being found guilty of fraud, deceit, or of gross negligence, incompetency, or misconduct in the practice of contracting." Such charges were premised on a renovation contract Respondent held wherein he "subcontracted Nelson Echeverria [who was not a state licensed electrical contractor] to perform electrical work at customer's home for approximately $4,500.00." The final order found Respondent guilty of the charges, and imposed an administrative fine of $1,500 and costs of $1,433.03, to be paid within 30 days. On March 8, 1996, Respondent's license was suspended for failure to satisfy the penalty imposed by the final order; however, the penalty was then apparently satisfied and on June 19, 1996, the suspension was lifted and Respondent's license was reinstated.
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 the violations alleged in Counts I through III of the Administrative Complaint and imposing, as a penalty for such violations, an administrative fine in the sum of $5,000; assessing costs of investigation and prosecution in the sum of $306.09; and, suspending Respondent's licensure for a period of one year, followed by a two-year term of probation subject to such reasonable terms and conditions as the Construction Industry Licensing Board may impose. DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 May, 1999.
The Issue The issue for determination is whether Joseph J. Proctor committed violations of Chapter 489, F.S., relating to the practice of construction contracting, and if so, what disciplinary action should be taken.
Findings Of Fact Joseph J. Proctor has been a registered roofing contractor at all times material to this proceeding. His license number is RC 0026805. On or about June 13, 1985, Proctor contracted with Dawn Ladson to fix her roof and install two skylights at her home at 401 Basewood Avenue, Altamonte Springs, in Seminole County, Florida. A few days later, Proctor replaced the existing roof with shingles and installed the two skylights. Ms. Ladson paid him a total of $2,050.00 for the work. Her last payment, $500.00, was made on June 27, 1985. At that point, he was not finished, but asked for a payment and Ms. Ladson decided to pay the full amount. Installing the skylights required cutting holes in the roof. After placing the skylights Proctor did not come back to seal the interior; as soon as it rained, the roof leaked. After some cajoling by Ms. Ladson, Proctor came back and did some work on sealing the skylights. However, they still leaked. The skylights were still leaking approximately a year later when Ms. Ladson directed her complaints to the Department of Professional Regulation. At the instigation of Jerome Maynor, DPR Investigator, Ms. Ladson and Proctor executed an agreement dated September 11, 1986, specifying repairs to be done and monetary reimbursement to be made by Proctor. The agreement also specified that Proctor would obtain the necessary permits. Sometime later, Proctor returned to the Ladson home and replaced the skylights. After that they still leaked. Ms. Lads on asked Proctor to fix them again and he kept saying he would, but he never returned. Eventually the repairs were done by another company. Proctor never applied for a building permit, as required by Seminole County, for the work he did on Ms. Ladson's home. Proctor claims, unconvincingly, that he came back to fix the roof each time Ms. Ladson called. He admits that he did not pull the permits, but claims that the arrangement was that Ms. Ladson would handle the permits. He admits that he never saw a permit displayed on the site and it should have been.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered finding Joseph James Proctor guilty of violating subsections 489.129(1)(d) and (m), F.S., as charged and assessed an administrative fine of $750.00, as proposed by counsel for DPR. DONE and RECOMMENDED this 17th day of December, 1987, in Tallahassee, Florida. MARY CLARK 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 17th day of December, 1987. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph J. Proctor 514 Peachtree Lane Altamonte Springs, Florida 32701 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent failed to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes, and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the state agency responsible for enforcing the Florida Workers' Compensation Law, chapter 440, Florida Statutes, including those provisions that require employers to secure and maintain payment of workers’ compensation insurance for their employees who may suffer work- related injuries. Respondent is a Florida limited-liability company, having been organized on May 2, 2007. Mike Hawryluk has been the sole manager of the company. The company is engaged in roofing in the construction industry. When Respondent was established, a checking account was opened in the company name. Respondent maintained workers’ compensation insurance from June 1, 2007, until June 1, 2009. Mr. Hawryluk filed a notice of election to be exempt from the provisions of chapter 440. That exemption became effective on November 2, 2007. Mr. Hawryluk held three construction licenses: a general contractor license, #CGC1517558; a building contractor license, #CBC1254280; and a roofing contractor license, #CCC1328252. A general contractor is “a contractor whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part.” § 489.105(3)(a), Fla. Stat. A building contractor is “a contractor whose services are limited to construction of commercial buildings and single- dwelling or multiple-dwelling residential buildings, which do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building.” § 489.105(3)(e), Fla. Stat. A roofing contractor is “a contractor whose services are unlimited in the roofing trade.” § 489.105(3)(e), Fla. Stat. Due to declines in the economy, Respondent became insolvent in 2010, and the company went inactive. Respondent did not take formal steps to end its existence, but stopped filing annual reports. On September 23, 2011, Respondent was administratively dissolved by the Department of State, Division of Corporations for failing to file an annual report. No business was conducted by Respondent after the date of dissolution, until its reinstatement as discussed herein. In conjunction with the dissolution of the company, Mr. Hawryluk allowed his workers’ compensation owner’s exemption to expire on November 1, 2011. Mr. Hawryluk continued to use the CBC Roofing Company bank account as a personal bank account. That decision was made as a matter of personal convenience, and does not demonstrate that Respondent continued to either conduct business or engage its defunct corporate existence in any way. As the economy improved, and as his alternative job of selling internet domain names failed to pan out, Mr. Hawryluk decided to re-enter the construction business. The Division produced a series of building permits issued by Volusia County to Mr. Hawryluk under any of his three construction licenses, or to other companies under his control. The permits were obtained by Mr. Etheredge on June 10, 2015, in preparation for the final hearing. The permits were as follows: Applicant Parcel Address Permit Type Last Activity Mike Hawryluk 21 Julie Dr., Ormond Beach Residential 03/29/2010 Mike Hawryluk 54 Palm Dr., Ormond Beach Re-roof repair 04/08/2010 Mike Hawryluk 1712 Derbyshire Rd., Holly Hill Re-roof replace 05/15/2012 Mike Hawryluk 3 John Bulow Cir., Ormond Beach Re-roof 05/06/2014 CBC Roofing Co. Mike Hawryluk Mike Hawryluk 36 Seabreeze Dr., Ormond Beach Roof/combination 05/29/2014 Mike Hawryluk 80 Carol Rd., Ormond Beach Re-roof replace 05/29/2014 Mike Hawryluk 3070 Whisper Blvd., DeLand Re-roof repair 06/13/2014 Mike Hawryluk 3070 Whisper Blvd., DeLand Re-roof replace 06/20/2014 Mike Hawryluk 1313 Fairway Ave., Ormond Beach Re-roof replace 07/11/2014 Mike Hawryluk 225 Seminole Dr., Ormond Beach Re-roof replace 09/09/2014 Bruce A. Fizell 10 Dunes Cir., Ormond Beach Roofing 02/20/2015 Mike Hawryluk Subcontractor Mike Hawryluk 2577 John Anderson Dr., Ormond Beach Re-roof replace 03/12/2015 Mike Hawryluk 3296 Relay Rd., Ormond Beach Re-roof 03/18/2015 CBC Roofing Co. Mike Hawryluk Mike Hawryluk 309 Navajo Dr., Ormond Beach Re-roof replace 04/17/2015 There were no permits issued for the period from January 13, 2013 to November 8, 2013, the period during which Respondent was legally dissolved, and during which Respondent was not engaged in construction contracting.1/ The evidence in this case, including the permit record, provides clear and convincing evidence that Respondent was not conducting business, and was thus not an “employer” during the period from January 13, 2013 to November 8, 2013. Respondent was reinstated on November 8, 2013, and has remained active since. On November 13, 2013, Mr. Hawryluk reinstated his workers’ compensation owner’s exemption. On January 12, 2015, Petitioner's investigator, Robert Etheredge, conducted an inspection at a residential construction site at 225 Seminole Drive, Ormond Beach, Florida. He observed three people removing siding from the residence, identified as William Evans, Thomas Vance, and Marcos Proveda. There were two trucks parked at the site, one of which had a CBC Roofing sign affixed. Mr. Hawryluk was also at the site. Mr. Hawryluk stated that the three employees had been there for approximately one hour, and were being paid at a rate of $8.00 per hour. Mr. Etheredge asked Mr. Hawryluk for evidence that Respondent’s employees were covered by workers’ compensation insurance. There was none. Mr. Etheredge reviewed the Compliance and Coverage Automated System (CCAS), which is the statewide database for workers’ compensation information, to confirm Respondent’s status in the workers’ compensation system. Using the CCAS, Mr. Etheredge confirmed that Respondent had no workers’ compensation coverage on file for any employee of the company. He further noted that Mr. Hawryluk held an exemption from workers’ compensation for the period from November 13, 2013 to November 13, 2015. Mr. Etheredge also accessed the Florida Division of Corporations website to ascertain Respondent’s corporate status. He noted that Respondent had previously been dissolved, and then reinstated on November 8, 2013. After having gathered the information necessary to determine Respondent’s status, Mr. Etheredge contacted his supervisor and received authorization to issue a Stop-Work Order and Order of Penalty Assessment. The Stop-Work Order required Respondent to cease all business operations statewide. The Order of Penalty Assessment assessed a penalty, pursuant to section 440.107(7)(d), “[e]qual to 2 times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during periods for which it has failed to secure the payment of compensation within the preceding 2-year period.” The consolidated order was hand- delivered to Mr. Hawryluk, on behalf of Respondent, at 11:45 a.m. on January 12, 2015. The Stop-Work Order and the Order of Penalty Assessment, as amended, named CBC Roofing Company Mike Hawryluk, LLC, as the employer. The Stop-Work Order and the Order of Penalty Assessment, as amended, did not name Mr. Hawryluk as having violated the workers’ compensation law, either individually or “doing-business-as” CBC Roofing Company Mike Hawryluk, LLC. The Stop-Work Order was accompanied by a Request for Production of Business Records for Penalty Assessment Calculation, which required Respondent to “produce business records for examination and copying, for the period of 01/13/2013 through 01/12/2015.” On January 14, 2015, Respondent advised the Division, by letter, that it had terminated the three employees observed at the construction site, with the three having been paid a total of $25.50. In response to the Request for Production of Business Records, Respondent produced all records that it had for the period during which it was conducting business prior to January 1, 2015, consisting of bank records for the period of November 13, 2013 through December 31, 2014. Respondent did not produce records for the period from January 1, 2015 through January 12, 2015. The records provided for the period of November 13, 2013 through December 31, 2014, were sufficient to allow the Division to determine that there was no violation of workers’ compensation for that period. Thus, the Second Amended Order of Penalty Assessment did not calculate or assess penalties for that period. There were no business records produced for the period from January 13, 2013 to November 13, 2013, because Respondent was defunct, and business records did not and could not exist. Although section 440.107(7)(e) requires salaries of employees to be imputed for a period of the previous two years, Mr. Etheredge testified that Petitioner’s construction of the law has resulted in the situation in which: Sometimes I come across companies that only started six months ago. We do not go back further, that wouldn't make any sense. We only go to the inception of the company or two years, whichever happens to be greater. THE COURT: All right. And had the company started on November of 2013, would these records have been sufficient, the records provided to you been sufficient to calculate a penalty without the information? THE WITNESS: If there was also an accompanying record to indicate that the company actually started November 2013, then that would have been adequate, correct. Petitioner’s application of the law applies with equal force in this case, in which the evidence demonstrates conclusively that, for all practical purposes, Respondent “started” on November 8, 2013, after a period of dissolution and inactivity. In that regard, it makes no more sense to impute wages for non-existent employees while a company is defunct and demonstrably inactive than it does to impute wages for non-existent employees before a company is in existence.2/ The records were reviewed by Petitioner’s penalty auditor, Lyna Ty. Mr. Ty determined that the records were insufficient to establish the compensation paid to Respondent’s employees for the periods from January 13, 2013 to November 13, 2013, and from January 1, 2015 to January 12, 2015. Therefore, pursuant to section 440.107(7)(e), salaries were imputed for each of the three employees, and for Mr. Hawryluk for the period before the reactivation of his owner’s exemption, based on the statewide average weekly wage for the period for which “inadequate” records were provided. Mr. Ty used the “Scopes Manual” published by the National Council on Compensation Insurance to ascertain the classification of Respondent’s business, based upon the nature of the goods and services it provided. Mr. Ty originally determined that Respondent’s construction business fell within Class Code 5551 - Roofing. During the course of this proceeding, the Division determined that the more accurate Scopes Manual classification code for Respondent’s business was Class Code 5645, Carpentry - Construction of Residential Dwellings Not Exceeding Three Stories in Height. The calculations described herein are those that applied the correct class code, and which resulted in the 2nd Amended Order of Penalty Assessment that forms the basis for this proceeding. The salaries of Respondent’s three employees, as employees of a class code 5645 business, were imputed as though they worked full-time for Respondent from January 13, 2013 to November 13, 2013, and from January 1, 2015 to January 12, 2015, the periods for which “inadequate” records were provided. In addition, salary was imputed to Mr. Hawryluk for the period from January 13, 2013 to November 13, 2013, since his exemption had expired, and had not yet been reinstated. Since the records provided for the period of November 13, 2013 through December 31, 2014, were sufficient to demonstrate that Respondent did not fail to secure the payment of compensation, salaries were not imputed by the Division for that period. The imputed wages were then multiplied by two, pursuant to section 440.107(7)(e), resulting in a total imputed gross payroll of $292,385.44. The penalty for Respondent’s failure to maintain workers’ compensation insurance for its employees is calculated as “2 times the amount Respondent would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it failed to secure the payment of workers’ compensation required by this chapter within the preceding 2-year period or $1,000, whichever is greater.” The National Council on Compensation Insurance periodically issues a schedule of workers’ compensation rates per $100 in salary, which varies based on the Scopes Manual classification of the business. The workers’ compensation insurance premium was calculated by multiplying one percent of the $292,385.44 imputed gross payroll ($2,923.85) by the approved manual rate (which varied from $15.71 to $15.91, depending on the quarter), which resulted in a calculated premium of $46,162.35. The penalty was determined by multiplying the calculated premium by two, resulting in the final penalty of $92,324.70. On June 10, 2015, the Division prepared its 2nd Amended Order of Penalty Assessment assessing a monetary penalty in that amount against Respondent. The overwhelming weight of the evidence in this case demonstrates that Respondent ceased operation as a business engaged in construction contracting no later than September 23, 2011, and took no further action to conduct business until it filed for reinstatement on November 8, 2013. The Division failed to establish that Respondent was an “employer” for workers’ compensation purposes from January 13, 2013 to November 8, 2013. Respondent was not, during that period, “carrying on any employment” and, during the period of dissolution, had no employees. The Division established that Respondent was an "employer" for workers' compensation purposes beginning on November 8, 2013, because it was engaged in the construction industry and had one or more employees working for the company. Applying imputed wages in accordance with the formula described above, the penalty for the period from November 8, 2013 through November 12, 2013, is calculated by first applying the average weekly wage of $841.57 for each of the four employees, including Mr. Hawryluk, for a period of one week (though there is absolutely no evidence that the three employees observed on January 12, 2015, were employees from November 8, 2013 to November 12, 2013), which comes to $3,366.28.3/ Multiplying $3,366.28 by two, pursuant to section 440.107(7)(e), equals a gross payroll for the period of $6,732.56. One percent of the gross payroll ($67.33) times the approved manual rate for that quarter ($15.71) produces a premium amount of $1,057.75. That amount times two, pursuant to section 440.107(7)(d)1., results in a penalty of $2,115.50. The penalty correctly established in the 2nd Amended Order of Penalty Assessment Penalty Calculation Worksheet for the period from January 1, 2015 to January 12, 2015, is $2,754.36. The appropriate penalty for the full lawful period of imputation is $4,869.86.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty of $4,869.86 against Respondent, CBC Roofing Company Mike Hawryluk, LLC, for its failure to secure and maintain required workers’ compensation insurance for its employees for the periods of time set forth herein. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 11th day of September, 2015.
The Issue Whether Respondent committed the offenses set forth in Count I of the Administrative Complaint and, if so, the penalties which should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent was licensed by Petitioner as a certified general contractor in the State of Florida and held license number CG- C016730. At all times pertinent to these proceedings, Respondent was the qualifying agent for Bilo Homes, Inc. (Bilo), a corporation engaged in Florida in the business of general contracting with its principal place of business in Miami, Florida. At all times pertinent to these proceedings, Mr. and Mrs. Donald Huston resided at 29843 S.W. 149th court, Leisure City, Florida. On February 24, 1988, the Hustons contracted with Bilo to build an addition to their house for the sum of $20,000 pursuant to plans and specifications that had been prepared by an architect. The Hustons' existing house was valued between $30,000-$40,000. The contract called for a one-story room addition to be built on a concrete slab with stucco exterior and sheet rock interior. The addition was to have a sliding glass door and was to be connected to the existing structure by a tie beam. The roof of the existing house was to be reshingled to match the shingles on the addition. The project also involved electrical work and plumbing work. The contract was signed on Wednesday, February 24, 1988, and work began on Friday, February 26, 1988. The contract did not specify a time for the completion of the project. The following draw schedule was agreed to by the Hustons and Bilo: 20% of the contract price upon the acceptance of the contract by the Hustons; 10% of the contract price upon the pouring of the concrete slab; 10% of the contract price upon ice completion of the tie beam: 20% of the contract price upon the drying in of the roof; 10% of the contract price upon the completion of the rough mechanical work; 10% of the contract price upon ice completion of the shingling of the roof; 10% of the contract price upon the installation of the plumbing fixtures;; 10% of the contract price (the balance) upon completion of the job. The Hustons made payments to Bilo in the total amount of $14,000.00. These payments were broken down as follows: $4,000.00 paid on February 24, 1988, upon acceptance of the contract; $2,000.00 paid on March 22, 1988, upon the pouring of the concrete slab; $2,000.00 paid on April 5, 1988, upon the completion of the tie beam; $4,000.00 paid on April 18, 1988, upon the drying in of the roof; and $2,000.00 paid on June 25, 1988, upon the completion of the shingling of the roof. Before June 25, 1988, Respondent had asked the Hustons for the draw due upon completion of the rough mechanical work in addition to the draw due upon completion of the shingling. The Hustons refused to pay both draws because they were dissatisfied with the quality of Bilo's work. The Hustons engaged the services of a lawyer and, on June 29, 1988, presented Respondent with a list of items they wanted corrected before paying the draw for the rough mechanical work. Respondent and the Hustons disagreed as to when the items on the list should be corrected. Respondent contended that the items could have been corrected as part of the punch list prior to the final payment. The Hustons contended that the items should be corrected before Respondent received any further draws. This dispute is resolved by finding that while several of the items on the list could have been corrected as part of the final punch list, there were items on the list that should have been corrected by Respondent before he proceeded. Considering the very poor quality of work that went into this job, the Hustons were justified in their demand that Respondent make these corrections before receiving an additional draw. Respondent contends that the Hustons did not pay the draw for the rough mechanical work because they ran out of money. This contention is rejected as being contrary to the greater weight of the evidence. After the Hustons presented Respondent with the list and refused to pay the draw for the rough mechanical work, Bilo stopped work on the project. Bilo performed no work on the project after June 29, 1988. Prior to the work stoppage, Respondent hired K & H Plumbing as the subcontractors to the plumbing work on the Huston job. K & H Plumbing's work failed to pass a Metro Dade County tub and water pipe inspection because the work did not meet the South Florida Building Code. K & H never completed its work on the Huston addition and no final inspection of its work was approved. K & H Plumbing filed suit against the Hustons for the unpaid portion of their contract with Bilo. In addition, K & H Plumbing failed to properly replace wood decking which it had pulled up during the course of its work on the Huston job. Respondent had received funds which1 should have been used to pay K & H. Prior to the work stoppage, Respondent hired Tom Mentelos to perform the electrical subcontracting work on the Huston addition. The work performed, by Mentelos was substandard. His work failed to pass inspection by the Metro Dade County Building and Zoning Department on six different occasions. In addition to this substandard work, one of Mentelos' employees cracked the Huston's kitchen ceiling while working in the attic over the existing portion of the house. This crack was never corrected by Mentelos or by Bilo. Mentelos never completed his work on the Huston addition, although he was never fired by the Hustons. Mentelos filed a claim of lien against the Hustons in he amount of $2,000.00. The first claim of lien was released and Mentelos filed a second claim of lien against the Hustons in the amount of $2,623.00. Respondent had received funds which should have been used to pay Mentelos. Respondent obtained the roofing permit to build the new roof on the Huston addition and to reroof the existing roof. The roofing work involved a process commonly referred to as "hot mopping", a process which requires the services of a licensed roofing contractor. Respondent exceeded the scope of his licensure by engaging in hot mopping. Bilo's employees punched two unnecessary vent pipes through the roof and placed a flat piece of PVC material around the vent holes to keep the, roof from leaking. This is an improper and unacceptable construction practice. Bilo's employees damaged the existing screen porch while working on the roof. The metal flashing which connected the existing roof to the aluminum screen porch was taken off but was never replaced. As a result, the screen porch leaked, a problem that had not been corrected as of the time of the final hearing. While Bilo's employees were working on the roof of the existing structure, a rainstorm occurred which resulted in water stains to the ceiling of the Hustons' main structure. The workmen were not supervised by Respondent and were unprepared for the rain. Other than the water stains, no damage was done to the ceiling. To repair the ceiling stains would require a chemical coating, followed by repainting of the ceiling. The cost of the repair would be approximately $75.00. Bilo engaged in poor construction practice in constructing the exterior wall by facing the poorer grade side of the exterior plywood toward the outside as opposed to inside. The better construction practice is to place the poorer grade side toward the inside where it will not be exposed to view. There is a gap in the area where the metal flashing comes down the exterior side of the end gable and meets the top of the roof. In the work performed by Bilo, the piece of sheathing was above the bottom of the sill plate which caused a gap from one inch to five inches over a distance between eight and ten feet. This gap is a source of potential leaks. Bilo attempted to cover the v-notch in the area of the gag with tar pitch in an attempt to correct this deficiency. Both the gap and the attempted repair are unacceptable construction practices. Bilo had not cut vents in the soffits at the time it stopped work on the project. Without vent holes in the soffits, the job would have not passed inspection. Bilo could have, at little expense, cut the soffit vents at a later point in the job. The end member of the frame for the partition wall between the laundry room and the masonry wall is not pressure- treated wood. The South Florida Building Code requires that the wood used for the end member of such construction be pressure treated or that there be a barrier between the end member and the adjoining wall. Here, Bilo failed to exercise either acceptable option, and, consequently performed work that failed to comport with acceptable construction practices and did not meet code. The manner in which Bilo supported the timber girder that supports the roof trusses fails to meet code because the tie beam, into which this girder is pocketed for support, is improperly supported. A hole was knocked in the cement block wall that supported the tie beam when a plumbing vent was redirected. As a result of this hole, the tie beam rests on only approximately two inches of concrete, which is inadequate to support the tie beam and the timber girder. This work fails to comport with acceptable construction practices. Bilo failed to brace the roof trusses as required by the plans and specifications of the architect. This is an unacceptable construction practiced. Bilo cut into the roof truss without authority from the truss manufacturer or from a qualified engineer. Cutting into a truss can impair its structural integrity and is a violation of code. Respondent maintained at hearing that he would have been able to get approval from the truss manufacturer for the modification of the truss caused by the cut. Respondent did not have such approval as of the time of the final hearing, and there was no evidence, other than his unilateral expectation, to support this contention. The facia board on the eaves did not join properly because Bilo's workmen did not take the time to properly cut the boards with the aid of a square. Although this is a matter that could be corrected for approximately $25.00, this work, along with the other deficiencies detailed herein, demonstrates the substandard work that went into this project and establishes that Bilo failed to provide its workmen adequate supervision or adequate training. At hearing, there was a dispute as to how much time Respondent personally spent at the Huston job site. This conflict is resolved by finding that Respondent was personally on the job site for at least 30 minutes on days when work was progressing. When major items were being performed on the job, he spent more time on the job site. When minor work was being done, Respondent did not go to the job site on a daily basis. Regardless of the number of minutes or hours that Respondent spent on the job site, the conclusion is inescapable that Respondent failed to properly supervise his workmen in light of the low level of skill the workmen exhibited throughout the job. Respondent had the responsibility as the general contractor to properly supervise his workmen and his subcontractors. He failed to perform that responsibility. As of the final hearing, the Huston addition remained uncompleted. At the time of the work stoppage, it would have cost the Hustons more than $6,600 to complete the job, the difference between the contract price and the amount that the Hustons had paid Respondent. The evidence was clear that the Hustons had incurred damages as a result of their dealings with Respondent. The amount of those damages were not established with any degree of certainty. On or about July 15, 1988, Respondent filed a claim of lien against the Hustons' property claiming that Bilo was owed $8,350 for the work that had been done. Respondent has been a certified general contractor for fifteen years and has been certified as a general contractor in the State of Florida since 1980. Respondent's licensure had not been disciplined prior to the filing of the Administrative Complaint in this proceeding.
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 the provisions of Section 489.129(1)(h), (j), and (m), Florida Statutes, which imposes administrative fines in the amount of total amount of $5,000 for such violations, and which suspends his licensure as a general contractor for a period of six months. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, 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 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0765 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings in Section VI (A) are adopted in material part except to the extent that the proposed findings are subordinate to the findings made. (Section VI (A) pertains to facts established through Respondent's failure to respond to Request for Admissions.) The proposed findings in paragraphs 1 2, 3, 4, 14, 15, 16, 17, 18, 21, 22, 23, and 24 are adopted in material part. The proposed findings in paragraphs 5 - 10 are adopted in material part except to the extent that the proposed findings are subordinate to the findings made or are unnecessary to the conclusions reached. The proposed findings of paragraphs 11, 19, and 25 are adopted in material part except to the extent that the proposed findings are unnecessary to the conclusions reached. The proposed findings of paragraph 12, 26, and 27 are rejected to the extent that the proposed findings are conclusions of law. The proposed findings of fact in paragraphs 13 and 20 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 13, 16, 18, 19, 27, and 30 are adopted in material part. The proposed findings of fact in paragraphs 5, 17, 20, 21, 22, 23, 25, 26, 28, 29, 30, and 32, are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9 and 11 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are adopted in part and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraphs 12, 14, 33, 35, and 37 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 15 are adopted in part and are rejected in part as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 24 are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 34 are rejected as being the recitation of testimony. COPIES FURNISHED: regory A. Victor, Esquire 3225 Aviation Avenue Suite 400 Miami, Florida 33133 Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, Florida 32302 Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on January 4, 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, Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., is and has been at all times material hereto a certified roofing contractor in Florida, having been issued license number CCC 1326506 by the Construction Industry Licensing Board (hereinafter referred to as the “Board”). At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Ringold was certified as doing business as Alpha Restoration, Inc. (hereinafter referred to as "Alpha"), a Florida corporation. At the times material, Mr. Ringold was the qualifying agent for Alpha, which possesses a certificate of authority as a contractor qualified business in Florida, license number QB 40272. Alpha’s license was issued May 5, 2005, and it is scheduled to expire August 31, 2010. On or about November 7, 2005, Alpha, through its employee Harry Youdell, met with Jose Fons at Mr. Fons’ residence located at 9922 Southwest 2nd Terrace, Miami, Florida (hereinafter referred to as the “Residence”), to inspect the roof on the Residence. Mr. Fons had not been successful in obtaining approval from his insurance company for replacement of the hurricane-damaged roof. Alpha represented that it would assist Mr. Fons in negotiating with his insurance company to obtain approval for replacement of the roof, which Mr. Fons authorized, in writing, Alpha to do. On January 15, 2006, Mr. Fons and Alpha entered into a written agreement (hereinafter referred to as the “Contract”) whereby Alpha agreed to install a metal tile roof on the Residence in exchange for payment of $27,187.02, with possible increases for “additional payments & supplements,” from Mr. Fons. The Contract provided for a 50 percent material deposit to be paid to Alpha. By check dated January 15, 2006, Mr. Fons paid the 50 percent deposit totaling $13,600.00 to Alpha. At the time the Contract was entered into, Alpha told Mr. Fons that a permit would be applied for the following week and that construction would commence in February. Although there was unsubstantiated hearsay that Mr. Fons was informed that the metal tile roof Mr. Fons was purchasing had not been approved for use in Miami-Dade County, Mr. Fons credibly denied being so informed. The credible, non-hearsay evidence supports a finding that Mr. Fons was not immediately informed that metal tile roofs were not authorized in Miami-Dade County. Despite not providing written or verbal authorization to Alpha to wait more than 30 days after execution of the Contract to apply for the permit for the roof work, no permit was applied for by Alpha for the Residence roof work within 30 days after January 15, 2006. Nor did Alpha commence work of any kind on the project in January or February 2006. During the first week of March, having heard nothing more from Alpha, Mr. Fons called Alpha and inquired about the status of the project. Mr. Fons was told by Mr. Youdell that the metal tile roof had not been approved by the Miami-Dade Building Department (hereinafter referred to as the “Building Department”). Mr. Youdell told Mr. Fons it would take another 30 days to obtain a permit. As of April 2006, Alpha had not commenced work or contacted Mr. Fons. Therefore, Mr. Fons called and spoke to Mr. Youdell about the status of the project. Mr. Fons was again told that the metal tile roof had not been approved and that testing of the roof would take another 30 days. In fact, Alpha had not made application for any permit for the Residence roof job through April 2006. On May 11, 2006, approximately 114 days after receiving Mr. Fons’ deposit, Alpha finally submitted an application for the permit with the Building Department. The application was designated C2006169450 by the Building Department. In May 2006, Mr. Fons again contacted Alpha to inquire about the project, since no work had been started and he had not heard from Alpha. For the third time, Alpha told Mr. Fons that the roof had not gained approval from the Building Department and that another 30 days was needed. In June 2006, Mr. Fons again contacted Alpha. Work on his roof had not started and he had not heard from Alpha. Not surprisingly, Mr. Fons was told for the fourth time that the roof had not gained approval and there would be another 30-day delay. Mr. Fons, who was becoming frustrated with the delay, visited the Building Department and inquired about the project. He learned that Alpha had not applied for a permit until May 2006 and was told that the Building Department had “denied” it on May 16, 2006. Mr. Fons was not told by the Building Department that, despite the “denial,” the permit application remained open. By July 2006, Alpha had still not commenced work. Therefore, Mr. Fons contacted Alpha and requested a meeting to discuss alternatives to the metal tile roof. Obviously, Mr. Fons was aware that metal tile roofs were not approved for use in Miami-Dade County since entering into the Contract. While no work had commenced from January 15, 2006, when the written agreement was entered into and the deposit was made, through July 2006, Mr. Fons effectively agreed to wait for Alpha to attempt to gain approval for the metal tile roof from the Building Department. Having obtained Mr. Fons’ approval, Alpha could not have commenced work on the project through July 2006. On July 17, 2006, Alpha, through Mr. Youdell, met with Mr. Fons at the Residence. Because of the delays that had been caused by the failure of Alpha to gain approval of the metal tile roof from the Building Department and with assurances that the contract price would be the same, Mr. Fons agreed to accept, and Alpha agreed to provide, a tile roof. Alpha represented to Mr. Fons that the tile roofing material was in-stock, that a permit would be obtained within a week, and that construction would commence by mid-August 2006. Between July 25, 2006, approximately a week after the July 17, 2006, meeting, and August 7, 2006, Mr. Fons monitored the Building Department’s web-site to see if Alpha had applied for a permit for the tile roof. When there was no indication that the permit had been applied for, Mr. Fons called Alpha on August 8, 2006. Mr. Youdell told him that the permit had been applied for and it had not appeared in the computer system because the Building Department was backlogged. Mr. Youdell told Mr. Fons that Alpha would be at the Residence in ten days to at least clean up debris. As of August 18, 2006, no new permit had been applied for and no one from Alpha had been to the Residence. Consequently, Mr. Fons wrote and delivered a letter by facsimile addressed to Mr. Ringold, stating, in part, the following: After months of dealing with you, this is my formal request for a full refund of $13,600 paid to you January 15, 2006, with my personal check #6408. Said amount was a deposit for the contract for the replacement of the roof at my residence located at 922 SW 2 Terrace, Miami, FL. As you are aware of, Florida Statutes 489.126 demands that you apply for the necessary permits within 30 days after the initial payment (my payment to you on 1-15- 06 $13,600). Please do not call me, from now on all communications will be done in written form. If you fail to refund my deposit within 10 days, please be advised that I will file a complaint . . . . Since we are now in August, and you have not commenced work at my residence, this is my demand letter for a check in full refund of my deposit within 10 days of receipt of this letter. On August 24, 2006, after having received Mr. Fons’ August 18, 2006, letter, Alpha submitted an on-line application for a tile roof for the Residence. The matter was designated W2006262830. This permit application was not approved because Alpha failed to complete the application process. When he did not receive a response to his August 18, 2006, letter, Mr. Fons wrote a second letter to Alpha, which was mailed by certified mail on or about September 4, 2006. In the second letter, Mr. Fons indicated that the ten-day deadline set out in his previous letter had passed without response and he again requested the return of his deposit. On September 3, 2006, the original metal tile roof permit application was rejected by the Building Department. On September 8, 2006, the permit application, having been converted from a metal roof to a tile roof, was approved and issued as permit number 2006126043. On September 6, 2006, after Alpha had applied for and obtained a permit, Mr. Fons finally received a written response from Alpha to his August 18, 2006, letter. In the response, Mr. Ringold suggests the following: “At the signing of your contract you were aware that ‘Metro Steel Tile’ did not have Miami Dade approval and you were willing to wait for such to be approved. This made securing a permit in 30 days impossible and you were completely aware of that at the time.” Mr. Ringold’s understanding of Mr. Fons’ “understanding” has not been substantiated by the evidence presented in this case, and is, therefore, rejected. Mr. Ringold goes on to accurately suggest that Mr. Fons and Alpha had modified the agreement in July, when it was agreed that a tile roof would be placed on the Residence. Mr. Ringold then suggests that any delay in applying for a permit after July was due to the need to ensure that the tiles were delivered, facts Mr. Fons was not previously apprised of. Mr. Ringold ends the letter as follows: We have confirmed that your tile is acquired and have applied for your permit. Had we been informed that you were so concerned that your permit be pulled immediately we would have been more than happy to do so. We never worry about getting the permit in Dade County as they are very effective in issuing permits in a timely manner [a fact which Mr. Youdell was apparently not aware of, given his representation to Mr. Fons that the Building Department was back logged]. I do not understand the reason for the letter? We sincerely have always had your best interest at heart, and want to proceed with the install. I am confident that you will be pleased with the finished product. Please if you would contact me directly at . . . to discuss this matter. On September 11, 2006, Mr. Fons found a copy of permit number 2006126043, issued on September 8, 2006, on the door of the Residence. Other than a letter from Mr. Fons to Alpha dated October 23, 2006, requesting a list of subcontractors and suppliers used by Alpha, there was no further correspondence between Alpha and Mr. Fons. Nor did Alpha make any effort to fulfill its obligations under the Contract. Ultimately, permit number 20066126043, issued September 8, 2006, was cancelled based upon a February 7, 2007, request from Alpha. No work took place on the project for more than 90 days after the permit was issued. Based upon the foregoing, more than six months passed after the Contract was entered into without any work being performed by Alpha: January 15, 2006, to July 17, 2006. While the evidence failed to prove that Mr. Fons was fully informed at the time the Contract was entered into that the metal tile roofing he had selected was not approved for use in Miami-Dade County and, therefore, securing a permit would take some time to acquire, he was eventually informed of these facts. Ultimately, Mr. Fons acquiesced to the delay in commencing work between January 15, 2006, and July 17, 2006, when Mr. Fons and Alpha agreed to a modification of the Contract; in particular, to replace the roof on the Residence with a tile roof. There was, therefore, no “abandonment” of the project between January and July 2006. Between July 17, 2006, and February 2007, a period of eight months, no work was performed on the project. In fact, after early September 2006 there was no meaningful communication between Mr. Fons and Alpha. Viewing the evidence most favorably to Alpha, Alpha had informed Mr. Fons in a letter he received on September 6, 2006, that the tiles were available (the evidence failed to substantiate this claim; if the tiles had been “available” they would have been delivered directly to the Residence), the permit had been obtained, Alpha indicated its willingness to fulfill its obligation, and Alpha attempted to place the ball in Mr. Fons’ court by asking that he call to discuss the matter, and Mr. Fons had demanded a return of his deposit. Viewing the evidence most favorably to Mr. Fons, he had been waiting for eight months to have his roof repaired; he had on a monthly basis had to initiate contact with Alpha and every time he did, was told “it will be another 30 days”; Alpha had taken until May 2006 to make its first application for a permit, despite the fact that Alpha had represented to Mr. Fons that the permit would be obtained in January and that work would commence in February, the monthly representations that the permit had been applied for but was being held up by the Building Department. After renegotiating his contract, Mr. Fons was again told that the permit would be pulled within a week and that work would commence within a month. Despite these representations, no permit was applied for until after his August 18, 2006, letter was received and that permit was never approved. When Mr. Fons did finally complain and request the return of his deposit, although it had only been a month since renegotiating the type of roof to be placed on the Residence, Alpha did not respond until September 6, 2006, and only responded after finally obtaining a permit. Given these circumstances, the suggestion of Alpha that “[w]e sincerely have always had your best interest at heart, and want to proceed with the install” must have seemed disingenuous to Mr. Fons. Weighing the foregoing facts, it is ultimately found that simply “offering” to proceed, despite Mr. Fons’ demand for the return of his deposit, was simply too little, too late. Given the total eight-month delay in the project and all the misinformation Mr. Fons had been given by Alpha, and especially in light of the fact that Alpha had $13,600.00 of Mr. Fons’ money for which it had performed no work whatsoever, Alpha should have done more to attempt to fulfill the contract. Failing to do more under these circumstances constitutes an abandonment of the project to the financial detriment of Mr. Fons. On February 21, 2007, Mr. Fons contracted with another company to install a tile roof on the Residence. Work commenced February 23, 2007, and was completed March 5, 2007. Mr. Fons has suffered a loss of $13,600.00 as result of Alpha’s failure to fulfill its obligations under the Contract. The total costs of investigation incurred by the Department in this case, excluding costs associated with any attorney time, was $342.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Douglas J. Ringold, Jr., d/b/a Alpha Restoration, Inc., violated the provisions of Section 489.129(1)(g)2., (i), (j), and (m), Florida Statutes, as alleged in Counts I, II, III, and IV of the Administrative Complaint; imposing fines of $1,500.00 for Count I, $500.00 for Count II, and $2,500.00 for Count III; requiring that Mr. Ringold make restitution to Mr. Fons in the amount of $13,600.00; requiring that Mr. Ringold pay the costs incurred by the Department in investigating and prosecuting this matter; and placing Mr. Ringold’s license on probation for a period of one year, conditioned upon his payment of the fines, restitution to Mr. Fons, payment of the costs incurred by the Department, and any other conditions determined to be necessary by the Board. DONE AND ENTERED this 10th day of February, 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 10th day of February, 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 Paul Buschmann, Esquire Hinshaw & Culbertson, LLP One East Broward Boulevard, Suite 1010 Fort Lauderdale, Florida 33301 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 disciplinary action should be taken against Respondent's license to practice contracting number RC 0054458, based on the violations of Section 489.129(1)(j), (k), (h), (p) and (m), F.S., alleged in the five count Administrative Complaint.
Findings Of Fact Since July 1968 and at all times material, Respondent Ronnie Boles, was licensed as a registered roofing contractor in the State of Florida, having been issued license number RC 0054458, and was registered to do business as "Ronnie Boles Roofing Company." On January 8, 1990 Ronnie Boles, doing business as Ronnie Boles Roofing and Construction, contracted with William C. Martin to construct two pole barns at 10550 N.W. 36th Lane, Gainesville, Alachua County, Florida. The contract price was $21,000.00. There is no evidence that "Ronnie Boles Roofing and Construction" was authorized through a valid contractor to construct pole barns. Respondent's roofing contractor license also did not permit the construction of pole barns. On January 12, 1990, Ms. Jean H. Martin, wife of William C. Martin, issued a personal check to the Respondent for $10,000 as partial payment on the January 8, 1990 contract. The Respondent delivered some materials to the site for use in the construction of the aforementioned pole barns, but never began construction. Mr. Martin attempted to have the Respondent construct the pole barns for over three months without success. The value of the materials provided by the Respondent was approximately $2,000.00, Mr. Martin attempted to have the Respondent refund the $8,000.00 balance of the money Ms. Martin previously paid Respondent on the uncompleted contract. Eventually, Mr. Martin retained attorney Ron Holmes who filed a civil suit against the Respondent based on the aforementioned contract. A judgment for Mr. Martin was obtained in the amount of $9,374.36 on October 1, 1991. Mr. Holmes has attempted to collect the judgment for Mr. Martin on several occasions without success. The Respondent has been actively uncooperative. As of the date of the formal administrative hearing, Respondent had paid no portion of the aforementioned judgment. Mr. Martin filed a complaint against the Respondent with the Department of Business and Professional Regulation. Tom Bishop, Department of Business and Professional Regulation Investigator, investigated the case and mailed the Respondent a notification letter on April 20, 1992. In addition, Mr. Bishop left two messages on the Respondent's answering machine. The Respondent did not respond to the notification letter or the phone messages left by Mr. Bishop. The Department of Business and Professional Regulation has accumulated $22.40 in initial investigative costs, $267.50 in investigative costs, and $605.90 in legal costs associated with prosecution of this cause as of the date of Petitioner's Proposed Recommended Order, totalling $895.80.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order which provides as follows: Finds Respondent guilty of all violations as set out above. Requires Respondent to pay a collective fine of $5,000.00; Requires Respondent to pay restitution to Mr. Martin of $9,374.36; Requires Respondent to pay costs of investigation and legal fees in the amount of $895.80; and Suspends Respondent's license for three years, thereafter renewal of his license to be subject to proof of Respondent's compliance with requirements (2) - (4) inclusive. RECOMMENDED this 1st day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1497 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1 Rejected as unnecessary. 2-9 Accepted as modified to remove rhetoric and cumulative material. Respondent's PFOF: None Filed. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ron Boles Route 2 Box 417 Alachua, Florida 32615 Richard Hickok, Executive Director Construction Industry Licensing 7960 Arlington Expressway Jacksonville, Florida 32211-7467 Jack McRay, Esquire 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 Whether the Respondent aided and abetted an unlicensed contractor by obtaining a permit for a roofing job performed by the unlicensed contractor; Whether the work on the job failed to fully comply with the local building codes; Whether the Respondent gave a guarantee on the job and thereafter failed to reasonably honor the guarantee; and Whether Respondent failed to properly supervise the job site activity.
Findings Of Fact At all times material to this action, Respondent was licensed by the Construction Industry Licensing Board as a registered roofing contractor, holding License No. RC0030450. Carol Kilgore is the daughter of Beula Relihan, who owns a rental home located at 207 East Selma in Tampa, Florida. Mrs. Relihan is 86 years old, and for several years Mrs. Kilgore has been managing the property. In early 1987, Mrs. Kilgore was involved in obtaining estimates to replace the roof at the rental home. After obtaining estimates from contractors listed in the yellow pages, which Mrs. Kilgore felt to be high, Mrs. Kilgore responded to an advertisement for roofing work located in the Money Saver. She called the number listed in the advertiser, talked to Leroy Rison, and asked him to come to the house and give her an estimate. On or about February 26, 1987, Leroy Rison and his nephew, Gary Terrell, visited Mrs. Kilgore after looking at the job site, and wrote out an estimate for replacing the roof of $1,650.00. Mr. Terrell wrote the proposal which reflected the work to be done, the price, and the proposed beginning and finishing date. However, before any contract was entered into, Mrs. Kilgore discovered that neither Rison or Terrell were licensed contractors. She explained that she wanted only a licensed contractor who could pull the permit to perform the work. Although Mr. Terrell and Mr. Rison are willing to work for a homeowner if the homeowner will obtain the permit, Mrs. Kilgore insisted that she wanted a licensed contractor. Therefore, Mr. Rison recommended the Respondent, and later called the Respondent to advise him of the job. The next day, February 27, 1987, Respondent met Mrs. Kilgore and wrote a contract proposal on a form with a printed heading "MacDill Roofing", to which in handwriting was added "& Services." Respondent operates under the name of, and is the qualifying agent for, MacDill Services. The contract prepared by the Respondent merely copied the proposal submitted by Terrell and Rison, including the same price and the same misspelled words. The contract was accepted and signed by Ms. Kilgore's mother. Mrs. Kilgore paid Respondent $650.00, with the balance to be paid upon successful completion of the contract. Work was scheduled to begin the following day, Saturday, February 28, 1987 and be completed by Monday, March 2, 1987. The following Saturday work began. Respondent obtained the permit for the job, and apparently purchased the materials and had them delivered. Leroy Rison worked on the job and hired the laborers. Gary Terrell also worked on the job. One of the men Rison hired, Earl, worked for a roofing company during the week but did not have a license. Mr. Rison could not remember the name of any of the other men who worked on the job. Leroy Rison was not an employee of MacDill Roofing or MacDill Services, but he had worked for Respondent on other occasions. Although Respondent contends that he went by the job site on three or four occasions, staying at the job site between 1 and 2 hours on each occasion, his testimony is not credible. Charles Doty, who was the tenant in the rental home, had received a leg injury which forced him to stay home during this entire period of time. The only time Mr. Doty was gone was for an hour and half on Saturday to attend a therapy session. Mr. Doty never saw Respondent on the job site, although he had heard Respondent's name mentioned by Mr. Rison. Mrs. Kilgore also visited the job site on several occasions and she never saw the Respondent at the job site. Respondent simply did not supervise the job site activities. On March 3, 1987, the roof was scheduled for final inspection by the building department. Mrs. Kilgore went to the house to wait for the building inspector. After several hours, she left to get a soft drink. She was gone only five minutes, but when she returned, she discovered that the building inspector had come and gone, and a "green tag", indicating that the house had passed inspection, had been left on the porch. Mrs. Kilgore was very upset because she felt that the roofing work had not been done properly. She went to the building supervisor at City Hall and asked him if he could send the inspector back to the house so that she could point out the problems. The building supervisor agreed to send the inspector back to the house. The building department inspector was Terry Scott. On March 3, 1987, Mr. Scott had approximately 20 or 25 inspections to do. When he first went to the house he just looked around quickly and left a green tag. He admitted that a thorough inspection was only done if a homeowner complained. When Mr. Scott returned to the house on March 3, 1987, he still did not do a thorough inspection. However, he did issue a "red tag" which listed certain deficiencies that would have to be corrected before the roof could pass inspection. The red tag required that the contractor "replace bad wood where needed and install drip-edge where needed." Normally, when a red tag is issued, the contractor corrects the deficiency and calls for another inspection. That did not occur in this case. On April 9, 1987, Inspector Scott met Mr. Park at the job-site to discuss problems with the roof. On that day, a more thorough inspection was performed. Another red tag was issued and the following deficiencies were noted: "Bad wood not replaced--Wall flashing not properly installed. Flashing around chimney not proper--Felt under drip-edge." Respondent did not correct these deficiencies and never called for another inspection. The permit expired without the roof being approved by final inspection. Although not all the deficiencies noted in the inspection constitute code violations, the Tampa Building Code does require that rotten wood be replaced and the contract specified that the rotten decking would be replaced. Nevertheless, after Respondent completed the job, rotten wood remained in place. The replacement of the rotten wood was noted in both red tags. Respondent never attempted to correct this deficiency. On the day the property initially passed inspection, March 3, 1987, Respondent called Mrs. Kilgore and requested the remaining $1,000 owed on the contract price. Mrs. Kilgore refused to pay the Respondent since she was dissatisfied with the work and the first red tag had issued. At some point, apparently after the red tag issued in April, Respondent decided that he was not going to get any more money from Mrs. Kilgore. Other than asking for the money on March 3, 1987, Respondent has not attempted to collect the remainder of the money from Ms. Kilgore; however, he has also not attempted to correct the code violations and other deficiencies. Since Respondent did not collect the remainder of the money owed, Respondent did not pay Leroy Rison, and Mr. Rison did not pay the laborers who performed the work. As the contractor on this job, Respondent had full responsibility for ensuring that the work was done properly and that the roof passed final inspection. Respondent failed to supervise the work on the job, and the re- roofing was not done in a workmanlike manner. In essence, Respondent abdicated his responsibilities as the contractor on the job, and allowed the work to be performed by unsupervised unlicensed persons. The roofing material used was supposed to be fiberglass shingle guaranteed for 20 years. There was no evidence presented that something other than the material specified was used or that the shingles were not installed in accordance with the manufacturer's specifications. The roof did not leak after the work was completed. No evidence relating to a guarantee, other than the guarantee related to the shingles, was presented. Respondent has previously been disciplined by the Construction Industry Licensing Board. On September 10, 1986, a 61 paragraph Administrative Complaint was filed against Respondent which alleged, among other things, willful violation of local law; failure to qualify a firm through which he was operating; gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting; failure to discharge supervisory duties as a qualifying agent; and aiding and abetting an unlicensed person to evade the provisions of Chapter 489. On March 26, 1987, Respondent signed a stipulated settlement with the Department of Professional Regulation admitting to all the allegations set forth in the Administrative Complaint. The stipulated disposition was that Respondent's licensure would be suspended for two years and indefinitely thereafter until an administrative fine in the amount of $3,000 was paid. The stipulation was adopted by Final Order of the Construction Industry Licensing Board rendered June 9, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revocation of Respondent's license as a registered roofing contractor. DONE and ORDERED this 25th day of October, 1988, in Tallahassee, Florida. DIANE A. GRUBBS 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 25th day of October, 1988. APPENDIX The following constitutes rulings on the Petitioner's Proposed Findings of Fact. 1.-4. Accepted, generally except the date of February 26, 1987 appears to be the appropriate date, rather than February 7, 1987, in that the estimate from Larry Rison was obtained one day before the contract was entered into with Respondent. Accepted, generally. Accepted as true, but unnecessary and irrelevant, since Rison and Terrell did not enter into a contract for the job. 7.-14. Accepted. 15. Accepted as true; however, the last two sentences were considered unnecessary. 16.-19. Accepted, generally. First sentence accepted, sentences two and three rejected as irrelevant to the issues in this case. Rejected as redundant and for the reasons set forth under Proposed Finding of Fact No. 6. First sentence rejected as not supported by the evidence, second sentence accepted, except as to Respondent's intent. Third and fourth sentences accepted in general. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Francis A. Park 6109 South MacDill Avenue Tampa, Florida 33611 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times relevant hereto, the Respondent, Rex Alaniz, held a registered roofing contractors license, Number RC 0042021, issued by the State of Florida, Construction Industry Licensing Board (hereinafter "the Board"). The Respondent's registered address with the Board was initially 1813 Ocean Drive, Jacksonville, Florida, then changed to 23 Seatrout, Ponte Vedra Beach, Florida. The Respondent's license reflected that he was doing business as "Rex Alaniz Roofing and Remodeling Company." During June 1984, the Respondent was doing business as Alaniz & Sons Roofing Company," a name unregistered and unqualified with the Board. Ms. Audrey Kelly met the Respondent through an as placed in the "Westside Shopper," and advertising newspaper in Jacksonville. The ad stated in part as follows: "Raindrops falling on your head? . . . labor guaranteed . . . State Licensed. . . Alaniz & Sons Roofing Company. Rex Alaniz 246-0265 if you have a leak and cannot sleep, check the rest and then get the best for less. . ." Ms. Kelly called the number listed in the advertisement and met with Buddy Clark on June 5, 1984. Mr. Clark stated that he represented Alaniz & Sons Roofing Company. After Mr. Clark looked at Ms. Kelly's roof, Ms. Kelly signed a contract for the repairs to be completed. The contract provided in part that Alaniz and Sons Roofing Company would repair and seal all exposed areas in the roof and that a one year guarantee on workmanship was included. The total contract price was $735. Ms. Kelly paid Clark $200 as an initial payment on the contract. On June 7, 1984, Respondent went to Ms. Kelly's home to repair the roof. After working approximately two and one-half hours, Respondent told Ms. Kelly that he had repaired the roof. Kelly then paid Respondent the balance of $535 which remained on the contract. On June 19, 1984, a light rain fell on Jacksonville and Ms. Kelly's roof leaked again. Ms. Kelly contacted Respondent and Respondent told her that she should wait until it rained harder so that any additional leaks could be repaired at one time. About three weeks later, a heavy rain fell and the roof leaked a lot. After the heavy rain, the Respondent went out and looked at the roof but did not perform any work on it. Respondent told Kelly that the problem was wind damage and suggested that Kelly contact her insurance company. An inspection by Ms. Kelly's insurance company revealed no wind damage to the roof. Therefore, Kelly repeatedly called Respondent, reaching his answering service, but Respondent did not return her calls. The roof continued to leak until Kelly hired another roofer who replaced the entire roof. Ms. Kelly complained to the State Attorney's office about Respondent's failure to honor the warranty on the contract. In April 1984, Mr. Otis McCray, Jr. discovered three leaks in the roof of his home and called Rex Alaniz. The Respondent went out and looked at the roof and informed Mr. McCray that he could fix it. On April 28, 1984, Mr. McCray entered into a contract with Respondent to repair the three leaks in the roof for a price of $500. A one year guarantee was included in the contract. Approximately one week after the contract was signed, Respondent told McCray that the roof had been repaired. McCray then paid Respondent the full contract price of $500. After a rainfall which occurred during the week following the completion of the repair work, McCray noticed that all three of the areas were leaking again. Thereafter, McCray called the Respondent's office approximately 5 or 6 times, leaving messages with either the receptionist or Respondent's answering service concerning the leaks. McCray also had his wife telephone the Respondent, thinking that perhaps the Respondent would respond to "a woman's voice." The Respondent failed to return any of McCray's calls and failed to return to fix the roof. Mr. McCray ultimately hired someone else to put a new roof on his home. In February 1986, the Respondent entered a negotiated plea to the offense of schemes to defraud in the Circuit Court of Duval County, Florida. The failure to properly perform the repairs and honor the promised warranties in the Kelly and McCray projects were included as a part of the offenses charged. The Respondent was ordered to pay restitution to Ms. Kelly and Mr. McCray. As of the date of the hearing, the Respondent had not made restitution to either Mr. McCray or Ms. Kelly. Douglas Vanderbilt, an investigator for the Department of Professional Regulation, attempted to serve papers upon the Respondent in November of 1985. During such attempt to serve the Respondent, Mr. Vanderbilt discovered that Respondent was no longer living at 23 Seatrout Street in Ponte Vedra Beach and had moved from that address approximately two years prior to November of 1985. At no time material hereto, did Respondent report to the Board a change of address from 23 Seatrout Street, Ponte Vedra Beach. The Respondent has been disciplined by the Board for misconduct twice in the recent past. On November 15, 1984 final action was taken by the Board to suspend Respondent's license for one year, effective January 2, 1985. On November 7, 1985, final action was taken by the Board to suspend Respondent's license for ninety days, consecutive to the one year suspension effective January 2, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED THAT a final order be issued requiring Respondent to pay an administrative fine of $1,000 and suspending Respondent's license for a period of five (5) years from the date of the Final Order in this case. Provided, however, that said suspension will be terminated early without further action by the Board, at any time that Respondent shall both pay said fine and provide written proof satisfactory to the Board's Executive Director of having paid restitution of $500 to Otis C. McCray, Jr. and $735.00 to Audrey L. Kelly. DONE and ORDERED this 6th day of August, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day August, 1986. COPIES FURNISHED: Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Rex Alaniz 1612-5th Street, South Jacksonville, Florida 32250 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 321301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in Findings of Fact 9 and 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 5. 12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 5. 14. Adopted in Finding of Fact 6. 15. Adopted in Finding of Fact 6. 16. Adopted in Finding of Fact 6. 17. Adopted in Finding of Fact 7. 18. Adopted in Finding of Fact 7. 19. Adopted in Finding of Fact 7. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 8. 23. Adopted in Finding of Fact 8. 24. Adopted in Finding of Fact 8. 25. Adopted in Finding of Fact 8. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) ================================================================ =
The Issue Whether Respondent was negligent in the practice of engineering as a result of alleged deficiencies in a porch addition to a residential structure, as alleged in the Administrative Complaint.
Findings Of Fact Based upon the evidence, the following Findings of Fact are made: Petitioner is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes (2004). Respondent is, and has been at all times material to this matter, a licensed professional engineer in the State of Florida, having been issued License No. PE 12217. Pursuant to the terms of a stipulation entered into between Respondent and the Board of Professional Engineers (Board) on a prior matter, Respondent provided the Board with a list of all Respondent's projects completed at 6- and 18-month intervals. One of these projects was a Terks Contracting Construction, Inc. (Terks Contracting), project for a screened porch addition. Respondent testified he was retained for the purpose of producing drawings containing specifications for the contractor for the slab, supports, spanning members, the connectors, and other elements. Respondent is the engineer of record for the Terks Contracting's covered porch addition to an existing single- family house. Respondent analyzed the windloads for the wood joists, wood beam, and the uplift supports. He calculated not only the gravity load, but considered the uplift load, as well. The analysis of windloads are covered by Tables 1606.2A and 1606.2B of the FBC. Petitioner testified he used these tables in his design of the covered porch. These tables are a simplified version of the standards of the American Society of Civil Engineers, Chapter 7-98 (ASCE 7). Respondent's determination of the components and cladding wind pressure are not inconsistent with the standards of the ASCE 7, which is the windload provision of the FBC. Respondent's calculations state that the rafters experience a uniform uplift load of 34 pounds per linear foot (plf) for the interior zones, and 38.4 pounds per square foot (psf) and 30.1 psf, respectively, for the endzones. Respondent is not mistaken in treating the overhang area and the endzones as two different areas adjacent to each other. To the extent the endzone (or edge zone) has higher wind pressures, Respondent calculated that the new structure would not adversely affect the existing house, if the new joists were attached to the top plate of the existing house. Respondent's calculations and drawings do not adversely affect how the covered porch addition affects the existing structure. Respondent's plan calls for the new joists to be connected to the top plate, which is part of the wall of the existing house, using a Simpson H 2.5 connector and to be set along side the existing truss members. The new joists were not attached to the existing trusses. In addition, a nailing pattern was selected for the plywood sheathing panels that accounted for variable wind pressures using the higher endzone windload for the entire area. However, Aranegui testified that he did not make any calculations to determine if, in fact, the specifications in the drawings were inadequate or incorrect. Petitioner's witness testified that he did not inspect the structure or speak with Respondent regarding the design of the structure. Aranegui did not take issue with Respondent's specifications for components or materials for the structure. Petitioner presented no evidence that there had been any complaints about the integrity of the structure, that the structure was deficient or unsafe in any manner, or that the structural elements as shown on the plans and, as built, did not meet engineering or FBC requirements. Aranegui testified that his opinions were based solely on two documents: the plans for the additions, Petitioner's Exhibit 1; and Respondent's calculations, Petitioner's Exhibit 2. Petitioner's expert witness testified that his concern came from his review of the paper calculations done by Respondent, and he believed the calculation sheet (not the plans) did not show consideration of windloads or complete analysis. However, Aranequi did not identify any requirement that these calculations be shown on paper and not just on the plans, nor did he identify any engineering practice imposing a duty on Respondent to write these calculations down. As noted below, there is convincing evidence that these concerns were considered and addressed by Respondent in the plans. Aranegui testified that his concern arose from his belief that the entire project in question should have been treated as a large overhang. However, Aranegui did not identify any provisions of the building code requiring Respondent to treat the screen porch addition as an overhang and did not identify any specific engineering practice that imposed a duty on Respondent to approach the design of the project as a large overhang. Aranegui's opinions were based on the assumption that because the plans and the calculation sheet he reviewed did not, in his opinion, show that certain matters were considered, they were not, in fact, considered in the design of the structure. Aranegui also testified he did not find an actual error or miscalculation in Petitioner's Exhibit 2. The evidence is convincing that the design of the porch addition was sound and safe and met all required structural requirements. The evidence is not clear and convincing that Respondent was negligent in the practice of engineering in a porch addition to a residential structure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, James Tippens, P.E., not guilty of negligence in the practice of engineering as alleged and that the Administrative Complaint filed in this cause be dismissed. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 5th day of May, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Jawdett I. Rubaii, Esquire 1358 South Missouri Avenue Clearwater, Florida 33756 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
