The Issue Whether Respondent's activity and conduct in the performance of a roofing contract constitutes abandonment of that contract in violation of Section 489.129(1)(k), Florida Statutes (1979), and whether Respondent willfully or deliberately violated the Volusia County Building Code, thereby contravening Section 489.129(1)(d), Florida Statutes (1979), by failing to obtain a building permit prior to commencing construction of the subject project. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and Respondent, the Petitioner's proposed recommended order and the entire record compiled herein, I hereby make the following:
Findings Of Fact By its Administrative Complaint signed October 21, 1981, Petitioner, Florida Construction Industry Licensing Board, seeks to take disciplinary action against Respondent and against his license as a registered roofing contractor. Respondent, Leonard L. Clark, is a registered roofing contractor who holds License No. RC 0020933 which has been issued by Petitioner. Respondent does business under the entity Clark Roofing. On January 15, 1981, Respondent entered into a contract with one Mae Coogan, to reroof her residence. The contract specifically required Respondent to "replace any bad wood," and provide a ten (10) year workmanship warranty. (Petitioner's Exhibit No. 1.) Additionally, Respondent agreed to install a 1 x 2 inch strip and a brown aluminum facia at an extra cost of $200.00. (Petitioner's Exhibit No. 1 and testimony of John Coogan.) Mrs. Mae Coogan is an elderly woman and is incapacitated. Her son, John Coogan, who lives with her in her residence, advised her during the negotiations of the subject contract, and testified as a witness in the proceedings herein. Respondent and John Coogan's testimony establishes that construction on the subject project commenced on February 10, 1981, and ceased on March 28, 1981. At that time, based upon Respondent's representation that the job was complete, Mr. Coogan paid Respondent the entire $2,500.00 due under the terms of the contract. Shortly thereafter, Mr. Coogan discovered evidence of "bad" or "rotten wood." Mr. Coogan immediately apprised Respondent of this, whereupon Respondent initially told him that he would be back to the job site to take care of any problems that existed with the reroofing project. There is conflicting evidence as to whether or not there was a subsequent telephone conversation between Respondent and Mr. Coogan following a letter which Respondent found offensive. Respondent claims that there was such a conversation and that the parties became angry at each other. At that juncture, the parties were unable to resolve their differences. Efforts by the parties to resolve their differences reached a stalemate, and Respondent did not again visit the project site or otherwise inspect the claimed damaged by Mr. Coogan. Mr. Coogan, to substantiate his claim that there was in fact rotten or bad wood left exposed in the overhang, rafters and beams surrounding the roof, introduced several photographs which depicted the condition of the wood on the roof. (Petitioner's Composite Exhibit No. 3.) Respecting the fact that there was rotten wood, as claimed by Mr. Coogan, in the rafters and overhang, Respondent admitted the existence thereof. There is also a question about the possibility of rotten wood being covered by Respondent's employees and not replaced as required by the contract. The particular area in question is a portion of a flat roof which sagged in several places. Mr. Coogan claims that he had been advised that this was due to rotten wood underneath the shingles in an area in which he specifically claims to have asked Respondent to allow him to inspect the exposed-wood surface prior to the time in which it was covered with asphalt shingles. Respondent's workers covered this area of the roof without permitting Mr. Coogan the opportunity to inspect it. Mr. Coogan testified that the roof continued to sag in the identical places where it sagged prior to the reroofing. In this regard, Respondent admits that he might have agreed to allow Mr. Coogan an opportunity to inspect the exposed roof once the shingles were removed and prior to the time that he recovered (reroofed) the flat roof. Respondent further testified that this was not due to any effort on his part to conceal or otherwise hide rotten wood and, in fact, he claimed to have covered or replaced any bad or rotten wood. In this regard, Mr. Coogan noticed at least four water leaks from his roof prior to the time that Respondent reroofed his mother's house; however, he testified, on cross-examination, that he has not seen any leaks since Respondent has completed the subject project. Bob McConnell, Volusia County Building Inspector for approximately five years, inspected the roofing job completed by Respondent for Mrs. Coogan on July 28, 1981. Mr. McConnell found that the roofing job did not comply with the contract in the following regards: The 1 x 2 inch strip beneath the brown aluminum facia, called for as an extra, was not installed; There was visible rot in the sheathing; A short hip (rafter) was replaced with unsound wood; and A rafter tail had visible rot. In this regard, Mr. McConnell, while also reporting that there were soft spots in the built-up roof, could not testify with certainty that they were the result of wood rot. Respondent testified that he has tried to contact Mr. Coogan on several occasions to correct any claimed deficiency. Respondent stands, at this time, willing to correct any deficiency that exists or to correct any problem which stems from his deviation from the contract. In this regard, Respondent has offered, and no offers, to remove the shingles from the entire roof and allow for it to be inspected by Respondent or any designated roofing contractor whom Coogan or Petitioner selects. Respondent will replace any "bad" or "rotten" wood which he has been claimed to have covered. However, Respondent expects to be paid for reroofing this job in the event that in an inspection reveals that no "bad" or "rotten" wood was covered as Mr. Coogan and Petitioner claim. Inspector McConnell has known Respondent in excess of twenty-five (25) years and is unaware of any claim that Respondent has performed any unworkmanlike or "shoddy" roofing repairs. Finally, in this connection, Respondent introduced letters from three (3) area builders who attested to Respondent's excellent workmanship. (Respondent's Composite Exhibit No. 3.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent be placed on probation for a period of two (2) years and that the term of probation be suspended for a period of sixty (60) days, during which time Respondent shall be allowed an opportunity to return to the Coogan residence and replace any existing exposed "rotten" or "bad" wood which should have been replaced pursuant to the terms of the contract. In the event that the Respondent properly completes the replacement of the rotten or damaged wood on this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of the probation be suspended. In the event that Respondent fails to properly complete this project, following an inspection by one of Petitioner's agents, it is further RECOMMENDED: That the entire term of probation be instituted without the necessity of further hearing. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues in this case are whether Respondent engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Respondent is an individual living in Tampa, Florida. Respondent did not appear at final hearing and has not filed any post-hearing motions concerning his failure to appear. The Administrative Complaint filed by the Department makes the following allegations: Respondent was not registered or certified to engage in the practice of contracting. Respondent, doing business as J.D.S. Roofing, contracted with Vivian Virgil to perform certain roofing work, specifically, to remove and replace shingles and related work to reconstruct the roof on Virgil's home. A contract between the parties dated April 21, 2006, was signed by Virgil and Respondent (or his authorized representative). Virgil made two payments to Respondent in the amounts of $2,500.00 (via check number 1037) and $1,564.46 (via check number 1040). She also made a payment of $2,860.54 to The Home Depot to pay for materials ordered by Respondent for Virgil's roofing repairs. Respondent then made the contracted-for repairs and replacement of Virgil's roof pursuant to the contract.2 Virgil, however, was not pleased with the quality of the work. She is unable to get a warranty on the roof because Respondent's work was inferior. Virgil must have another contractor re-do the roof in order to get a warranty. Neither Respondent nor his company, J.D.S. Roofing, is or has ever been licensed by the State of Florida as a contractor. However, Respondent held himself out as a general contractor in his dealings with Virgil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, James Delaughter, is guilty of the unlicensed practice of contracting and imposing a fine of $5,000.00. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of April, 2008.
Findings Of Fact At all times material hereto Respondent has been a registered roofing contractor in the State of Florida, having been issued license number RC- 0042963. At no time material hereto did Respondent's license qualify "Energy Plus Roofing" with Petitioner. Notice of the final hearing herein was provided to Respondent at his last known address of record in Bradenton, Florida, as shown on his Election of Rights form. The notice was not returned by the post office as "undeliverable" or for any other reason. In April, 1988 Respondent entered into a contract to perform certain roofing work for John Beede at a contract price of $1,610. Respondent executed this contract on behalf of Energy Plus Roofing, and provided a ten year warranty on workmanship and materials. Beede paid the full contract price to Respondent for work performed, but Respondent failed to correct leaks in Beede's Florida room. In fact, after the job Beede had additional leaks in his Florida room. Respondent failed to respond to several calls from Beede for further corrective work under the ten year warranty. Finally, Beede had to have a "roof over" constructed to correct the leaks in his Florida room at an additional cost of $4,000. Respondent did not obtain any permit from Manatee County for the work he performed for Beede, although Manatee County requires contractors to obtain permits for such jobs in excess of $200. Additionally, Respondent did not register "Energy Plus Roofing" with Manatee County, although Manatee County does require such registration. In March, 1986 Respondent entered into a contract with Marie Allen for roof repair on her mobile home in Ruskin, Hillsborough County, Florida. Allen did not have any leaks in her roof at the time, but she was simply seeking preventive maintenance. Respondent contracted with Allen on behalf of Energy Plus Roofing to pressure clean her roof and "apply energy plus roof system to (her) existing roof" for a contract price of $1,000. Respondent provided a ten year warranty on workmanship and materials. After Respondent's crew pressure cleaned her roof, Allen began experiencing leaks, and she presently continues to have four leaks which she did not have before work was performed by Respondent. She has tried repeatedly to contact Respondent under the warranty, but has been unsuccessful. Respondent is not registered in Hillsbourough County, and he did not obtain any permits for the Allen job. Hillsborough County requires contractors to be registered and to obtain permits for jobs such as he performed on Allen's roof. The only name on Respondent's license is his own individual name, Emanuel Fred Mosley.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's registration for a period of one (1) year and imposing an administrative fine of $1,000 upon Respondent. DONE AND ENTERED this 4th day of May, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0442 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3-8 Adopted in Finding of Fact 4. 9 Adopted in Finding of Fact 5. 10-14 Adopted in Finding of Fact 6. 15-16 Adopted in Finding of Fact 7. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Emanuel Mosley 5707 5th Street East Bradenton, FL 33507 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue Whether Respondent's contractor license should be disciplined for alleged violations of Chapters 489 and 455, Florida Statutes.
Findings Of Fact Respondent, James Cooper, was at all times material to this action licensed by the State of Florida as a registered roofing contractor, having been issued license number RC0066905. Mr. Cooper's license is currently classified "Inactive, Issued (09/05/97)." Around March 1, 1996, Marshall Moran was contacted by Julia Jones regarding repairs to the leaky roof on her home located at 209 Cresent Drive, DeFuniak Springs Walton County, Florida. Ms. Jones' home was over one hundred years old with a steep metal roof. The roof she wished repaired was over the enclosed sleeping porch of her house. Over the last ten years, she had various contractors attempt to fix the leak in the sleeping porch roof. These attempts occurred, on average, more than one time per year. The leak always returned. Marshall Moran is an unlicensed and unregistered roofing contractor. Mr. Moran has been a roofing contractor since before the licensure requirements for contractors became law. He elected not to become licensed under those statutes. However, he did have the experience and skills necessary to repair Ms. Jones' roof. Marshall Moran discussed the job with Ms. Jones. Mr. Moran recommended the entire section of the roof be rebuilt and described the anticipated repairs. Ms. Jones would not allow the entire section of roof to be repaired. She thought only the small section where the leak was apparent needed repair. Unknown to Ms. Jones and prior to beginning the work, Mr. Moran contacted Respondent to tell him of Ms. Jones' job and to see if Respondent wanted to do the job. Respondent couldn't do the job with his crew but offered to allow Mr. Moran to "work under his license." Respondent was pursuing a large commercial roofing contract around the same time as the events at issue here. He wanted to keep Moran's crew together in order to be able to complete the large commercial job. He held the crew together by enabling Moran to do the construction at Julia Jones' residence in consideration for taking legal responsibility for the Jones' job. Respondent did not hire Mr. Moran as his employee. Respondent knew Mr. Moran was not registered or certified to practice contracting. He also knew Mr. Moran was well qualified to perform the work on the Jones' job. Respondent admits that he knew that he should not pull permits for anyone, but that he did it just this one time in order to keep the crew together. On March 15, 1996, Respondent obtained City of DeFuniak Springs, Florida, building permit number 1379 for the roof repairs to Ms. Jones' residence. On the application for said building permit, Respondent represented himself (doing business as Cooper Roofing and Repair) as the contractor of record on the aforesaid project. Respondent intended to and did eventually take legal responsibility for the Jones' job. However, he did not supervise Mr. Moran or his crew. Additionally, Ms. Jones was never informed of Respondent's involvement. More importantly, Ms. Jones never contracted with Respondent for either Respondent or his company to perform roof repairs on her home. On March 21, 1996, Mr. Moran provided an estimate for repair of the portion of Ms. Jones' roof she felt needed repair. The estimate bears the name of "AAA Metal Works" and "Marshall Moran." AAA Metal Works was Mr. Moran's company. The estimate does not reference either Respondent or his company. The estimated cost to repair Ms. Jones roof was $2,785. Based on the estimate, Ms. Jones entered into a contract with Mr. Moran and AAA Metal Works to perform the repairs to her roof discussed above. Moran and his crew substantially completed the repairs to Ms. Jones' roof in a few days. However, the roof continued to leak after Moran and his crew ended their work. The continuing leak was not due to any incompetence on the part of Respondent or Moran. Ms. Jones paid for the repairs with two checks made out to AAA Metal Works. The checks were in the amounts of $3,500 and $4,350. Respondent did not receive any of the money for the Jones' job. His only expense was the fee for the building permit. All other expenses were paid for by Mr. Moran. At no time during the formation or performance of the contract with Marshall Moran did Julia Jones have any contact with or knowledge of involvement by Respondent. In fact, Respondent only drove by the job site one time. As indicated, the roof continued to leak. Ms. Jones contacted Mr. Moran on approximately 5-6 occasions notifying him of the continued leaks. Mr. Moran would return to Ms. Jones' home and inspect the problems, but was unable to stop the leaks to Jones' satisfaction. It is not clear whether Mr. Moran kept Respondent informed of these continued service calls. Approximately one year after completion of the initial repairs on Ms. Jones' roof, Respondent received a call from Ms. Jones' tenant and friend, Sharon Jenks, who called posing as a potential new client. Ms. Jenks had gotten Respondent's name from the building permit. Ms. Jenks called Respondent because the house was still leaking approximately one year after the repair was done and intervening visits by Marshall Moran had not fixed the problem. Ms. Jenks arranged for Respondent to visit Ms. Jones' home. Respondent did not recognize the house when he arrived and drove past it. When Ms. Jenks showed Respondent the building permit bearing his name, Respondent showed surprise. He returned the next day with Mr. Moran. Respondent, Mr. Moran, Ms. Jenks and Ms. Jones all met regarding the continued leaking. Respondent and Mr. Moran told Ms. Jones that the metal on the roof was "bad" and needed to be replaced to stop the leaks on the "sleeping porch." Understandably, Ms. Jones did not want to deal any further with Mr. Moran or Respondent and would not permit them to make the recommended necessary repairs. Ms. Jones sued both Respondent and Mr. Moran in a civil action styled: Julia R. Jones v. James K. Cooper and Marshall Moran, Case Number 97-0040-CC, in the County Court of the First Judicial Circuit in and for Walton County, Florida. Following a judge trial, a Final Judgment was entered in favor of Respondent and Mr. Moran on December 9, 1997. Mr. Moran was charged with contracting without a license in violation of Section 489.127, Florida Statutes (1995), in State of Florida v. Marshall Moran, Case Number 97-0549-CF, in the Circuit Court of the First Judicial Circuit in and for Walton County, Florida. That charge was dismissed by Circuit Judge Lewis Lindsey on February 3, 1998.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Board should find Respondent guilty of violating Chapters 489 and 455, Florida Statutes, and impose an administrative fine of $500.00 on Respondent DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Willams and Holz, P.A. 458 West Tennessee Street Tallahassee, Florida 32301 J. LaDon Dewrell, Esquire 207 Florida Place, Southeast Ft. Walton Beach, Florida 32549 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is a roofing contractor licensed to practice in the State of Florida. Since January, 1982, he has been the qualifying agent for Tropical Clima-Coat Inc. (Tropical). On September 21, 1983, Tropical entered into a written contract with Bertha Guerry and her husband Joseph, in which it agreed, for $2,449.10, to perform the following roofing work on the Guerrys' residence, which was located at 2185 S.W. 38th Street in Fort Lauderdale, Florida: Remove loose gravel and dirt from existing roof surface/flat deck. Apply Tropical Clima-Coat's resin- based cement to fill holes and cracks in the roof surface. Apply acrylic primer to provide maximum adhesion for acrylic waterproofing. Apply acrylic waterproofing, creating a uniform, bonded, elastomeric, watertight surface. Apply White Acrylic Roof Finish as a durable, mildew-resistant wear barrier. The contract further provided that the Guerrys were to receive a "5 year, 100% warranty against leaks." The work specified in the contract was completed on October 31, 1983, and the Guerrys thereupon paid Tropical in full. Tropical, in turn, gave the Guerrys a written warranty signed by its Vice-President, which provided, in part, as follows: If within 5 years after Tropical Clima- Coat applies its Roof System to your roof, a leak develops because of the failure of our roofing system,* we will repair it free. * Damage excluded from warranty: Tropical Clima-Coat shall not be liable for any leaks or damage caused by riots or vandalism, termites or other insects, penetration of the roof or waterproofing system by nails; nor shall Tropical Clima-Coat be liable for leaks or damage caused by acts of God, including but not limited to: lightening, gale, hurricane, tornado, hailstorm, flood, earthquake, or unusual phenomena of the elements; nor from damage to roof due to settlement, distortion, dry rot, failure or cracking of the roof deck, walls, partitions, or foundation of the structure; nor defects or failure of materials used as a roof base, over which our waterproofing system is applied; nor by biological growth, traffic upon the roof or any similar cause. The warranty also contained the following provision prescribing the time and manner in which claims under the warranty had to be made: The owner of the roof will notify Tropical Clima-Coat immediately by certified mail, at its main office (3746 N.W. 16th Street, Ft. Lauderdale, Florida 33311) of any leaks alleged to result from causes not excluded from coverage by this warranty. Such notification must be mailed within 30 days of discovery of the need for repairs, and all correspondence must include the above Certificate Number. In June, 1986, Mrs. Guerry noticed that there was a leak in her roof above the living room. She telephoned Tropical and requested that it repair the leak in accordance with the warranty she and her husband had been given. Tropical responded promptly to Mrs. Guerry's request. It sent one of its workers to the Guerry residence and he patched the leak. Arrangements were made for the worker to return to the Guerry residence and pressure clean the roof. Pursuant to these arrangements, the worker came back to the residence and pressure cleaned the roof as he had promised. It took him two hours to complete the task. Following the pressure cleaning of the roof, Mrs. Guerry discovered that there were now leaks in the roof above the kitchen. Having made this discovery, she again telephoned Tropical and requested that it repair these newly-discovered leaks. As it had done in response to her previous telephonic request, Tropical dispatched a worker to the Guerry residence, albeit not as promptly as on the prior occasion. The worker applied black ceramic granules to the surface of the roof in an attempt to alleviate the problem. The Guerrys now had a black roof instead of the white roof for which they had contracted. Mrs. Guerry again telephoned Tropical and complained about the new color of her roof. Tropical responded by having a worker go to the Guerry residence and spray paint the roof white. The paint, however, did not adhere well to the granular material on the roof. Furthermore, Mrs. Guerry observed new leaks in the roof. On September 8, 1986, she telephoned Tropical to advise it of these recent developments. Respondent visited the Guerry residence the next day. He told Mrs. Guerry that Tropical intended to remove the granules and recoat the roof with an asphalt material imbedded with a polyester fabric for greater strength to prevent against leaks. He further assured her that, upon completion of the repair work, the roof would be white. On September 15, 1986, a crew of Tropical workers were on the Guerrys' roof with approximately 80 to 100 gallons of asphalt when a sudden, unexpected heavy rainstorm interrupted their work. The rainwater mixed with the asphalt and created "black goo," some of which fell from the roof onto the sides of the house, the porch, the driveway, the sidewalks, the grass, the bushes, and the trees. Tropical had its workers endeavor to clean up the mess that the rainstorm had created. They used mineral spirits in an attempt to remove the hardened remains of the "black goo" from the porch, the driveway and the sidewalks and swept the residue onto the grass, bushes and trees. In so doing, they contaminated the soil and killed the vegetation. Respondent was responsible for the decision to use mineral spirits in the cleanup effort. He did not realize, as he should have, that the use of this substance would result in environmental damage. The cleanup progressed slowly. Frustrated by the lack of substantial progress, Mrs. Guerry telephoned Respondent and demanded that he go to her home and do something about the situation. Respondent did not believe that his presence at the home would help matters any and he told Mrs. Guerry so. Nonetheless, on September 17, 1986, he paid his final visit to the Guerry residence. During his visit, Respondent met with Mrs. Guerry for approximately an hour and a half. Mrs. Guerry expressed to Respondent her outrage concerning the situation. Respondent recognized that Mrs. Guerry had a right to be annoyed and that Tropical needed to take action to remedy her plight. He wrote down on a piece of paper the following things that Tropical would do for the Guerrys: FIX ROOF LOOSEN SOIL W/RAKE 4. REMOVE "STICKINESS" FROM DRIVEWAY AND SIDEWALK 3. REMOVE BLACK FROM CHATTAHOOCHEE (STAINS WILL REMAIN) REMOVE "STICKINESS" FROM CHATTAHOOCHEE REMOVE STICKINESS FROM DECORATIVE WALL (STAINS WILL REMAIN) REMOVE STICKINESS FROM SIDEWALKING STONES REMOVE BLACK FROM CHAT @ BACK DOOR SOD- TO BE DETERMINED LATER Respondent indicated he would sign this document and he asked Mrs. Guerry to do the same to acknowledge their understanding and agreement as to the remedial action Tropical was to take. Mrs. Guerry refused. Nonetheless, the cleanup effort continued. Mrs. Guerry, however, did not permit Tropical to continue its repair work on the roof. Concerned about the damage that had been done to the vegetation on her property, Mrs. Guerry contacted a horticultural consultant, Robert G. Haelhle. Haelhle surveyed the property on September 18, 1986. Following his survey he wrote a letter to the Guerrys advising them of the following: On September 18, 1986, I visited the Guerry property at Mrs. Guerry's request. The landscape plantings are in real trouble due to a mineral spirits spill. Mineral spirits and water were used to clean up roofing tar that washed off the roof after a heavy rainstorm. The kerosene [sic] and water mixture washed over the lawn, around the base of a West Indian Cherry tree (very rare), an arborvitae, and a 165 foot Ixora hedge on the east and west sides of the house. The Ixora hedge is over 7 feet tall and 30 years old and would not be replaceable. The mineral spirits/water mix will poison the soil and eventually could affect the water table. All affected soil will have to be removed from the area before any new planting can be accomplished. The West Indian Cherry was starting to yellow and the grass was dying at the time of my visit. Time is of the essence to preserve the remaining plantings. The kerosene [sic]/water mix poisons the root system of the plants and does not allow for normal water penetration. I am not optimistic about the remaining plantings. I contacted Jane McCarthy of the Environmental Quality Board, tel: 765- 5881. She was to send an inspector to assess the soil damage at the site. Neither Tropical nor Respondent replaced the "plantings" that had been damaged or destroyed as a result of the cleanup effort. On September 22, 1989, Mrs. Guerry telephoned Respondent. She reiterated that she did not want any work done on the roof until she had an independent expert inspect it and provide her with guidance. That same day, Edward T. Weiner, a licensed architect hired by the Guerrys, inspected their roof. Based on his observations of the condition of the roof, it was Weiner's opinion that the repair work done by Tropical was unacceptable and that a new roof needed to be installed. He so advised the Guerrys by letter dated September 29, 1986. The Guerrys also hired an attorney, Craig W. Lekach, to furnish them legal advice and representation concerning their dealings with Tropical. On September 23, 1986, Lekach telephoned Respondent and instructed him to "get busy" with the repair work that needed to be done. The following day, Respondent telephoned Mrs. Guerry and told her that he was anxious to complete the repair work on her roof. Mrs. Guerry took the opportunity to again express her displeasure with the work Tropical had done. She also indicated that she had yet to hear from Weiner regarding his assessment of the condition of the roof. That same day, September 24, 1986, Respondent received word that a Broward County Environmental Compliance Officer had inspected the Guerrys' property and determined that mineral spirits used in the cleanup effort had contaminated soil on the property. Respondent was further informed that the excavation of the contaminated soil would remedy the situation. Having received permission from the Guerrys' attorney to proceed with the repair work, Respondent sent a crew to the Guerry residence on September 25, 1986, to vent the roof. Mrs. Guerry, however, did not allow the workers to install the vents. Another telephone conversation between Mrs. Guerry and Respondent ensued. Respondent reiterated that it was his desire to finish the work that needed to be done on the roof. Mrs. Guerry, in turn, indicated that she would not let Tropical continue its work on the roof until she had Weiner's report in hand and had the opportunity to further discuss the matter with her attorney, her son and others with whom she had consulted. The conversation ended with Respondent telling Mrs. Guerry that he would be waiting to hear from her. On September 26, 1989, Respondent wrote a letter to Attorney Lekach in which he complained that Mrs. Guerry was interfering with Tropical's efforts to make her whole. The letter read, in part, as follows: We do carry casualty insurance and I feel it may be best to supply you with the name and address of our agent and allow him to coordinate with Mrs. Guerry's homeowners agent. Truly, this situation is considered an "act of God" and I do not believe that we can adequately communicate with the customer as she is in such an excited state we now find her implacable. We would be glad to install the proper roof vents and do the final painting of her roof if she will permit us. If she will not, then we must close the file and direct her to our insurance company. This is really unfortunate! Sound roofing practices were utilized; we were careful to watch the weather and, although we had a sudden cloudburst, we did stay around to try to clean up. We have not been negligent and we have spent considerable time and money to resolve the situation. Please advise at your earliest convenience. Respondent next heard from Lekach on October 9, 1986. Later that same day, pursuant to Lekach's request, Respondent met with Lekach and discussed "the problems at the Guerry residence." The following day, Lekach sent Respondent a letter memorializing the highlights of their discussion. The letter provided, in part, as follows: You will be permitted access to the Guerry property for the following purposes: Inspection of the roof, cleaning of the yard which will include replacement of sod as necessary, replacement of topsoil as necessary, and removal of tar. The performance of the above shall neither be construed as an admission of liability on your part, nor an acceptance of this work as being satisfactory or complete. I agree, however, that it is imperative that steps be taken immediately to mitigate the damage. Further we will both be doing the following: obtain information about repair methods and costs for chattahoochee surface. obtain information about repair methods for the "staining" problem on walls and patio so that the area can be painted. review proposals for correction or replacement of roof, if necessary. There is going to have to be a certain amount of good faith between you and Mrs. Guerry if this situation is to be resolved without litigation. Accordingly, we are now permitting you access to the property in the hope that you will also attend to the other matters set forth above. Mrs. Guerry has been hesitant to accept a partial resolution of this problem without your commitment to complete all of the repairs and this is the reason that the cleanup was delayed in some respects. Hopefully, we will be able to work towards resolving all aspects of the damage. On October 11, 1986, Respondent dispatched a crew to the Guerry property to perform the excavation work that was necessary to remove the soil that had been contaminated by the mineral spirits used in the cleanup effort. On this occasion, the workers were given access to the property for this purpose and they removed and replaced the contaminated soil. On October 13, 1986, Tropical sent a crew to the Guerry property to inspect their roof. Mrs. Guerry would not permit the Tropical workers to enter the premises. She indicated that she would not allow the workers on her property to inspect or repair the roof until she had heard from all those with whom she had consulted regarding the matter. Having been denied access to the property by Mrs. Guerry, the workers left without performing their inspection. At no time thereafter did the Guerrys directly contact Tropical and request that the workers return to the residence to finish the repair of the roof. In the absence of any such direct communication from the Guerrys, Tropical did not attempt to do any further repair work on the roof after October 13, 1986. On October 6, 1986, the Broward County Environmental Quality Control Board had issued a notice of violation citing Tropical with discharg[ing] a substance (mineral spirits) to ground." A hearing on the charge was held before the Board on November 7, 1986. Respondent appeared on behalf of Tropical at the hearing. He admitted that Tropical was guilty of discharging a pollutant, to wit: mineral spirits, into the soil, although he explained that the violation was a product of ignorance on his part regarding the qualities of mineral spirits. Based on this admission of guilt, the Board imposed a $500.00 fine, which was subsequently paid by Respondent. In late 1986, the Guerrys filed with the Department of Professional Regulation a complaint against Respondent. An investigation of the complaint was conducted, following which an initial determination was made that there was "presently no probable cause to find that [Respondent] violated the contractor disciplinary statutes." Respondent was notified of this determination by letter dated May 14, 1987. This determination of no probable cause was subsequently reversed. On January 11, 1989, an administrative complaint was filed by the Department charging Respondent with wrongdoing in connection with the work performed on the Guerry home. The Guerrys no longer own the home. The property was purchased by Broward County in furtherance of the County's airport expansion project. Respondent has previously been disciplined by the Construction Industry Licensing Board. In early 1987, Respondent was fined $500.00 for failing to obtain a permit as required by local law. In March, 1988, he was fined $1,500.00 for failing to call for all required inspections. In August, 1988, he was fined $500.00 for proceeding without a required permit, failing to obtain all required inspections, failing to reasonably honor a guarantee, and displaying gross negligence, incompetence or misconduct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of gross negligence and incompetence, in violation of Section 489.129(1)(j) and (m), Florida Statutes, in connection with his supervision of the cleanup of the Guerry residence; (2) suspending Respondent's license for six months and imposing a fine of $1500 for said violation; and (3) dismissing the remaining charges against Respondent that are set forth in the instant Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of November, 1989. STUART M. LERNER 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 11th day of November, 1989.
The Issue The issue for determination is whether Respondent, licensed as a registered roofing contractor, certified roofing contractor, and certified building contractor, committed various violations of Chapter 489, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against his licenses.
Findings Of Fact Respondent is Joseph H. Rayl, holder, at all times pertinent to these proceedings, of registered roofing contractor license no. RC 0034055; certified roofing contractor license no. CC C035625; and certified building contractor license no. CB C033206. Petitioner previously disciplined Respondent's license RC 0034055 through the imposition of a $250 fine by order dated July 11, 1985; and Respondent's license CB C033206 by suspension of license for six months and imposition of a fine of $2,500. Petitioner also found probable cause for three cases in 1987 that were closed with letters of guidance to Respondent. Petitioner is the Department of Professional Regulation, Construction Industry Licensing Board, the state agency charged with the regulation of contractors in the State of Florida. Respondent was the qualifying agent for Unique Construction, Inc., (Unique) at all times pertinent to these proceedings. Further, Respondent has been the qualifying agent for Superior Roofing & Construction Inc., (Superior) since February, 1988. On June 19, 1984, Mary Lois Brining, owner of a day care center for children known as Town and Country Schools of Bradenton in Manatee County, Florida, entered into a contract with Respondent to reroof the day care center. Respondent's personnel arrived at the school and removed the roof. Heavy rainfall then caused extensive damage to the interior of the facility and Brining complained to Unique. A representative of the company assured her that the situation would be resolved. Brining later paid Unique $623 to paint the school's interior, in addition to the cost of the roof replacement. While Respondent was never present during the construction, his workmen finished the roofing project on June 26, 1984. When leaks to the roof developed after completion of the job, Brining advised Unique of the leakage on numerous occasions. No action was taken by Respondent or Unique in response to Brining's telephone calls about the roof's leakage. Water leakage also damaged the carpet in Brining's facility, which she replaced at a cost of $2,000. In 1988, Brining finally hired another roofing company to correct the roof leakage. Helen M. Hayes, a resident of Gulfport, Florida, contracted with Unique to reroof the flat portion of the roof to her home on April 12, 1984, for a sum of $2,890. The job was finished on April 15, 1984. Two days later, the roof leaked. Hayes advised Unique and a representative came to the house and attempted to stop the leaks. After every rain, the roof leaked and Hayes would advise Unique. She never saw or spoke with Respondent. Finally, after 22 contacts with the company over a period of two and a half years, Hayes contacted local government building authorities. The building inspector for the City of Gulfport inspected the roof and told the company to replace it. Unique's workmen removed the roof in July, 1986, and left the house uncovered. That same day 10 inches of rain fell in the area of the residence, resulting in extensive damage to the home's interior and clothing which Hayes had stored in the home. Hayes called the police. The police called the building inspector who, in turn, called the roofing company. On July 28, 1986, Unique completed replacing the roof on Hayes' house. That new roof still leaks, the floor to the house is cracked from the leakage, the carpet has been saturated with water, plaster from the ceiling is falling to the floor, and there are water stains on the ceiling and walls throughout the residence. The proof further establishes that the City of Gulfport, located in Pinellas County, Florida, retained a private contractor to conduct an inspection of Hayes' roofing job in July of 1986. That inspection established that the roof should be replaced with a roof complying with building code requirements. Notably, while Unique obtained permits for the job, no final inspection of the project was ever obtained by Respondent's company in accordance with the Southern Building Code adopted as an ordinance by the City of Gulfport. James Oliver Prince is a resident of Lake Hthchineha, a settlement located in Polk County, Florida. He has never met Respondent. Prince entered into a contract with Unique in September of 1985. The reroofing job was completed on or about September 26, 1985. Leaks developed with the onset of the first rain after the completion of the job. Prince notified Unique and a representative came out to the residence to attempt to repair the roof and stop the leaks. This procedure continued on numerous occasions until November of 1987 when Prince attempted to contact Unique regarding the roof's leakage only to be informed that the telephone had been disconnected. Prince tried to locate Unique at the various offices listed on his contract, but received no answer. Eventually, due to the seriousness of the leaks and his inability to contact Unique, Prince hired a carpenter and replaced the roof at a cost of approximately $6,000. As established by testimony of Charles Fant, fire chief and building official for the City of Treasure Island, Florida, Unique obtained a construction permit for a reroofing job for the home of Vincent Ferraro located at 62 North Dolphin Drive in that city. The city has adopted the Southern Building Code as a city ordinance. However, the company never obtained the required final inspection for that job as required by the building code. On August 13, 1986, Carl and Ludie Buice of Bellview, Florida entered into a contract with Unique for a reroofing job on their home. Carl Buice passed away in November of 1986 Later, their son assisted Ms. Buice when leaks developed in the roof by attempting to contact the roofing company. The son, Alfred Buice, was unable to contact Unique. He then contacted the local offices of the Better Business Bureau; thereafter a representative of Superior, Respondent's successor company to Unique, came to the Buice residence on or about May 25, 1988, and gave Alfred Buice a check for $200 in connection with money previously spent by Buice to repair leaks to the roof. Even after repairs, the roof continued to leak to the point that it began to cave in around the roof's edges. Eventually, Alfred Buice had his mother's residence reroofed by another contractor on March 21, 1989, for $5,800. Testimony of Petitioner's expert witness establishes that Respondent was grossly negligent in meeting his qualifying agent responsibilities to supervise financial activities and construction practices of Unique. Further, Respondent's subordinates, who actually carried out roofing activities, performed those tasks incompetently. Respondent failed to comply with existing construction industry practices to inspect jobs where successive complaints were lodged by customers.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's licenses as a registered roofing contractor, certified roofing contractor, and certified building contractor. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County. Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-42. Addressed. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0750
The Issue Whether Respondent, Glenn V. Curry, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Glenn V. Curry, was a certified roofing contractor having been issued license C-3810. During times material hereto, Respondent was the qualifying contractor for Economic Roofing Company, 2538 Surinam Court, Holiday, Florida. On or about December 27, 1995, Connie Socash, an investigator with the Pinellas County Construction Licensing Board, observed two individuals performing roofing work on the structure located at 2024 Cleveland Street in Pinellas County, Florida. Adjacent to the Cleveland Street property was a truck from which the individuals were working. Affixed to the truck was a magnetic sign with the words "Economic Roofing" printed on it. When approached by Ms. Socash, the two people performing the roofing work stated that they were subcontractors for Economic Roofing. One of the individuals performing the roofing work identified herself as Bonnie Sargent. However, neither of the individuals provided Investigator Socash with a roofing contractor's license or license number. After determining that Petitioner had not issued a roofing contractor's license to Bonnie Sargent, Investigator Socash issued a citation to the person identifying herself as Bonnie Sargent. The citation was issued to Ms. Sargent for subcontracting and performing "roofing work without a competency license as required by law." The citation, which was signed by Ms. Sargent, listed the following two options that were available to her: (1) pay a fine of $125.00 within a specified time period; or (2) appear at the Pinellas County Misdemeanor Courthouse on January 19,1996. Ms. Sargent chose the first option and paid the fine of $125.00 on or about January 9, 1996. After issuing the citation to Bonnie Sargent, Investigator Socash contacted Respondent regarding the Cleveland Street roofing project. Respondent refused to cooperate with Investigator Socash and failed to provide her with any information regarding the relationship of Bonnie Sargent to Economic Roofing. Prior to this case, Respondent has not been the subject of any disciplinary action by the Pinellas County Construction Licensing Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order: Finding Respondent, Glenn V. Curry, guilty of violating Section 489.129 (1) (e), Florida Statutes, and Chapter 89-504, Section 24 (2) (d), (e), (j), and (m), Laws of Florida as alleged in the Administrative Complaint. Imposing an administrative fine of $750.00. Suspending Respondent's roofing contractor's certificate for one year. Such suspension may be stayed subject to terms and conditions prescribed by the Pinellas County Construction Licensing Board. DONE and ENTERED this 27th day of August 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Ulmerton Road Largo, Florida 34643-5116 Glenn V. Curry 2538 Surinam Court Holiday, Florida 34691 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
The Issue At issue in this proceeding is whether Respondent committed the offense 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, Carlos Morejon, was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified building contractor and as a registered residential contractor, having been issued license numbers CB C056745 and RR 0066530, respectively.3 In early 1993, following the landfall of Hurricane Andrew, Respondent and Sergio Casiano, a family friend, resolved to "start a company" to engage in contracting. At the time, Casiano was not certified or registered to engage in contracting, a circumstance known to Respondent; however, he apparently had years of experience in the construction trade. Conversely, Respondent, although certified and registered, was lacking in experience. According to Respondent, both he and Casiano would bid or contract jobs, and Casiano (variously described by Respondent as his field manager, superintendent, supervisor, or foreman) would actually oversee the construction, subject to Respondent's supervision "as much as my abilities" allowed.4 The Moreno job Pertinent to this case, Henry and Ester Moreno own, and have owned since approximately 1986, a single-family residence located at 8361 Southwest 47th Street, Miami, Dade County, Florida. As sited, the home is located in unincorporated Dade County. In early October 1993, the Morenos were driving in their neighborhood when they observed a house being re-roofed with a clay roof tile of a color and style they wanted installed on their home. The Morenos stopped and inquired of the owner regarding the contractor, and the owner advised them he would have the contractor contact them. That evening, Casiano telephoned the Morenos and arranged to meet with them at their home. At the meeting, the Morenos explained that they wanted to replace their existing shingles with clay roof tiles, and discussed price with Casiano; however, no agreement was reached. Before he left, Casiano gave them his business card. The card identified Casiano as the "manager" of a business described as follows: C.M. STATE BUILDING CONTRACTOR ROOFING CONTRACTOR CC# 19424 / CBC # 056745 Between Respondent and Casiano, "C.M." was understood to stand for Carlos Morejon. In August 1994, the Morenos finally resolved to have their home re-roofed, and they telephoned Casiano at the telephone number displayed on his business card. Casiano met with the Morenos on or about August 26, 1994, at which time they entered into a written agreement to remove and replace their existing roofing material. The agreement named Carlos Morejon as the contractor and Henry and Ester Moreno as the owners. Type of construction was noted as residential; project location was noted as 8361 S.W. 47th Street, Miami, Florida; and the owners' telephone number was noted as (305) 226-0503. Contract price was $6,200. The agreement was signed by Mr. and Mrs. Moreno, as owners, and Sergio Casiano, as project supervisor.5 Upon execution of the agreement, and consistent with its terms, the Morenos gave Casiano a check for fifty percent of the contract price ($3,100). The check, at Casiano's direction, was made payable to his order. Under the terms of the agreement, the balance of the contract price was to be paid as the work progressed. On August 30, 1994, with information provided by Casiano regarding the Moreno project, Respondent completed and signed a permit application, and submitted it to the Metropolitan Dade County Building and Zoning Department. The application identified the job address as 8361 S.W. 47th Street; the improvement as re-roofing, with a value of $6,000; and the owners' name and address as "Henry Moreno & Esther," 8361 S.W. 47th Street, Miami, Florida, with a telephone number of 226-0503. The application was also signed by Esther Moreno, as owner. The application was approved and the permit (number 94148351) was issued on August 31, 1994.6 Consistent with the terms of the agreement, the old roof material was removed, and the roof prepared to accept the new tile; however, cement roof tile was delivered instead of clay tile as requested by the Morenos. When advised of the error, Casiano removed the cement tiles from the job site, and on January 20, 1995, ordered clay tile from Metro Roof Tile, Inc. (Metro Roof), a local manufacturer of roof tiles. The clay tile was promptly delivered and installed. Up to that date, the Morenos had paid Casiano $5,650 of the contract price,7 with the balance of $550 due on final inspection. Casiano neglected to pay Metro Roof for the clay tile installed on the Moreno property, and on February 24, 1995, Metro Roof served the Morenos with a Notice to Owner stating that it had furnished materials for improvement of the property upon the order of Casiano. Subsequently, on April 5, 1995, Metro Roof filed a claim of lien against the property for the value of the clay tiles ($1,061.42), and served a copy of the claim of lien on the Morenos. Notwithstanding the pending claim of lien, as well as the lack of a final inspection, the Morenos met with Casiano on September 11, 1995, and inexplicably tendered to him the final payment ($550) that was due under the contract. Subsequently, the last inspection of the roof noted ten to fifteen loose tiles, and the project failed inspection. On November 22, 1995, Metro Roof, having failed to receive satisfaction of its lien, filed a civil action to foreclose its lien. The Morenos were duly served with a copy of the civil action, and on December 20, 1996, a "Final Judgment for Construction Lien Foreclosure" was rendered. The amount awarded was $1,234.42, and represented principal ($1,061.42), filing fee ($129.00), and service of process fee ($44.00). The Morenos satisfied the judgment by payment of the full amount awarded. The costs of investigation and prosecution At hearing, Petitioner offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $701.96, as of April 23, 1998. (Petitioner's Exhibit 10). Previous disciplinary action On March 28, 1995, Petitioner issued a Uniform Disciplinary Citation against Respondent imposing an administrative fine of $500 for failure to provide proof, in response to a random audit, of having completed all required continuing education requirements before renewing his license. (Petitioner's Exhibit 11).
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 violation alleged in Count I of the Administrative Complaint, and imposing, as a penalty for such violation, an administrative fine in the sum of $1,500; assessing costs of investigation and prosecution in the sum of $701.96; ordering the payment of $1,234.32 to Henry and Esther Moreno as restitution; and requiring Respondent to furnish the Construction Industry Licensing Board with proof that the Moreno roof work has successfully passed a final inspection. It is further RECOMMENDED that the Final Order dismiss Count II of the Administrative Complaint. DONE AND ENTERED this 10th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1998.
