Judges: LINDA M. RIGOT
Agency: Department of Business and Professional Regulation
Latest Update: Oct. 21, 1983
Summary: Defective roof system was not the responsibility of contractor who performed only the re-roofing work authorized under his contract with city of Miami.
82-3106.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3106
)
JOSEPH A. DEAN, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 25, 1983, in Miami, Florida.
Harold M. Braxton, Esquire, Miami, Florida, appeared on behalf of Petitioner Department of Professional Regulation, Construction Industry Licensing Board, and Respondent Joseph A. Dean appeared on his own behalf.
Petitioner filed an Administrative Complaint against the Respondent seeking to suspend, revoke or take other disciplinary action against him as licensee and against his license to practice contracting under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken against him, if any.
Petitioner presented the testimony of the Respondent, Roger Rojas and James
. Wager. Additionally, Petitioner's Exhibits numbered 1 through 14 were admitted in evidence, and Petitioner's Exhibit numbered 15 was admitted as a late-filed exhibit.
Respondent Joseph A. Dean testified on his own behalf and presented the testimony of James W. Wager. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.
Petitioner submitted proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Respondent is a registered residential contractor having been issued license number RR 0034888. He owns and qualifies Allstate Building Contractors, Inc.
Respondent submitted a bid to the City of Miami for renovation and roofing work on a 50-year-old home owned by Margaret Donlevy pursuant to the city's neighborhood rehabilitation program.
The Rehabilitation Specifications upon which Respondent bid were written by Roger Rojas, a rehabilitation estimator for the city. The portion of the Specifications pertaining to the roofing work reads only as follows:
Remove existing roof covering and replace damaged sheeting and rafters. Apply one 30 No. layer of felt, tin-tacked and then apply two layers of 15 No. felt moppedon. Flood coat and apply gravel (check roof decking (Allow $1.05 per foot) replacing dot decking.
Respondent was awarded the Donlevy job.
On October 17, 1980, Respondent and Donlevy entered into the one-page form contract being utilized by the city for its rehabilitation projects. The city's Agreement for Rehabilitation contains a date, the names of the contractor and the property owner, the price of the contract, and the deadline by which the work must be done. The Agreement contains no information regarding the work to be performed or the location of the job site. Rather, the Agreement recites the names of various documents, recites that those documents are the contract documents, and incorporates those documents by reference. Only the Agreement for Rehabilitation, the Specifications, and the Proceed Order were offered in evidence.
On October 17, 1980, the City of Miami issued its Proceed Order authorizing Respondent to commence work on the Donlevy residence no later than October 20, 1980, which work was required to be completed within 24 calendar days after starting construction.
On October 21, 1980, Rojas issued a Change Order on the Donlevy residence which contained the following Description of Work Change:
Replace rotted and deteriorated [sic] roof decking and rafters. 2. Upgrade entire electrical system. Install 3 duplex outlets in kitchen area. Move meter to outside of residence.
Rojas's authorization to approve the Change Order came from James W. Wager, the senior rehabilitation estimator for the Department of Community Development of the City of Miami.
On October 22, 1980, Respondent signed a Contractor's Final Invoice, Release of Liens, and Warranty which recited, inter alia, ". . .that the roof work performed is guaranteed for a period of five (5) years for both workmanship and materials. The undersigned will replace faulty materials or faulty workmanship within the period of the guarantee free of charge."
On October 24, 1980, Respondent issued a separate "Roof Guarantee" to Donlevy which provided as follows:
The Company guarantees its material and workmanship for five (5) years. It will replace faulty material or faulty workmanship within the period of the guarantee free of charge.
On October 28, 1980, the City of Miami issued its check to Allstate Builders in full payment of the Donlevy contract.
In performing the roofing work on the Don levy residence, Respondent took off all the existing roof covering, down to the bare deck; repaired all the rotten rafters on the top part of the roof truss that were visible; installed a new roof covering, applying one layer of felt and putting on two layers of 15 No. felt; installed flashing with 90 No. slate, and then laid gravel.
Both Rojas and Wager made frequent inspections during the time that Respondent was working on the Donlevy residence, Rojas because it was a job for which he had been assigned responsibility, and Wager because the Donlevy rehabilitation project was one of the first performed pursuant to the rehabilitation program of which Wager was in charge. Respondent successfully completed all interim inspections and the final inspection on the roofing work performed by him.
Several months after completion of the roofing work on the Donlevy residence, Respondent was advised that there was a leak over the carport area. He immediately responded and repaired that leak. While at the Donlevy residence, he noticed an abundance of leaves on the roof, apparently attributable to a large tree next to the house. He personally removed the leaves. He advised Rojas and Wager that the tree should be removed, since it created a potential for clogging the drain on the roof. He was advised there was no grant money for tree removal.
Wager described the roof on the Donlevy residence as being a strange roof. Although the roof was flat, it was not an average roof. Only one drain was located on the entire roof--a rectangular hole approximately four inches by three inches with a Philadelphia-type gutter. That drain system appeared to have been installed with the roof when the house was originally built, and Respondent's job specifications did not include any changes to the drain system.
In September 1981, a portion of the roof caved in. Although Respondent suggested an immediate inspection, the City of Miami employees desired to wait a few days.
On October 1, 1981, Respondent, Rojas and Wager met at the Donlevy residence and inspected the roof. Wager took the position that all repairs necessitated by the cave-in were covered by Respondent's warranty, and Respondent took the position that the cave-in was caused by a collapse of the roof system and was not related to any work performed by him. After heated discussion, Wager ordered Respondent off the property. On the following day, Wager caused to be hand-delivered to Respondent a letter advising Respondent that a replacement contractor had been engaged and that Respondent was to make no attempt to correct the damage to the Donlevy residence.
Between the time Respondent commenced working on the Donlevy roof in October 1980 and the time the cave-in occurred in September 1981, no citation was issued to Respondent for any defects in workmanship or materials, and no written complaints concerning any such defects were ever made. The only verbal complaint concerned the leak in the carport area, which Respondent immediately repaired. No leak occurred again at that site.
The cave-in was caused by the collapse of deteriorated wood, the weight of pooling water, and the size of the single drain (which probably became blocked by leaves).
Respondent's contract with Donlevy as the Specifications were written by Rojas did not include putting in a new roof system, and Respondent did not replace the roof system in the Donlevy residence. Respondent's warranty would not cover work not contracted for and not done by him. Petitioner's witnesses admitted that Respondent did not replace the roof system in the Donlevy house and further admitted that even with the roof covering cleared off, all the rafters (the component which collapsed) could not be seen in order to ascertain their condition.
The contractor who replaced Respondent received a Proceed Order from the City of Miami on October 2, 1981. Pursuant to instructions from the city, that contractor replaced the entire roof system and further installed a bigger drain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes (1981).
Although the Administrative Complaint filed herein contained only one count, it charges Respondent with two statutory violations. The first allegation is that Respondent is guilty of violating Section 489.129(1)(c), Florida Statutes (1979), by violating Section 455.227(1)(a), Florida Statutes (1979), in that Respondent failed to honor the warranty given to Donlevy. Petitioner has failed to sustain its burden of proving this allegation. Section 489.129(1)(c) authorizes the Construction Industry Licensing Board to discipline a contractor if the contractor is found guilty of violating Chapter 455.
Section 455.227(1)(a), Florida Statutes (1979), authorizes disciplinary action if the licensee has made misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. A review of the few contract documents offered in evidence in this cause reveals that the Rehabilitation Specifications only called for Respondent to replace damaged rafters, and the Change Order only called upon Respondent to replace rotted and deteriorated roof decking and rafters. No one paid for and no one contracted for Respondent to put in a new roof system at the Donlevy residence. Petitioner has failed to introduce any evidence to support the proposition advanced by it that Respondent was legally required to perform not-contracted-for and not-paid-for repair work in areas of the roof system not worked on by him prior to the cave-in because of the warranty that promises to replace faulty material or faulty workmanship.
All witnesses in this cause, including Petitioner's, agreed that Respondent had not been hired to replace, nor did he replace, the roof system, and the roof system is what caused the cave-in of a portion of the roof. Petitioner did not even introduce evidence to show that the portion of the roof where the cave-in occurred was a portion of the roof where Respondent performed any work at all other than the replacement of the roof covering. Even if Petitioner's position
were arguably correct that Respondent somehow had some legal liability to provide free services not contracted for, the highest level of Petitioner's argument is that there existed a dispute as to the terms of the contract with Respondent. Even if Petitioner were correct in its assertion that Respondent failed to fulfill the terms of the City of Miami's Rehabilitation Specifications or the terms of his contract with Donlevy or the terms of his warranty issued to Donlevy, then Respondent might be answerable in civil litigation to charges of breach of contract. Petitioner has failed to prove any relationship between an arguable breach of contract and the fraudulent representations with which Respondent is charged in this proceeding. In other words, breach of contract and fraud do not necessarily bear any relationship to each other. In the case at bar, there is no relationship. By failing to prove any misleading, deceptive, untrue or fraudulent representation made by the Respondent herein, Petitioner has likewise failed to prove any violation of Section 455.227(1)(a), Florida Statutes (1979), and therefore Section 489.129(1)(c), Florida Statutes (1979).
The Administrative Complaint also alleges that Respondent is guilty of a violation of Section 489.129(1)(d), Florida Statutes (1979), in that he willfully or deliberately disregarded and violated Section 10-22(g) of the Code of Metropolitan Dade County. Section 489.129(1)(d), Florida Statute's (1979), authorizes the Board to discipline a contractor if the contractor is found guilty of willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof. Section 10-22(g) of the Code of Metropolitan Dade County, Florida provides that it is unlawful for a contractor to:
(g) [Fail] to fulfill contractual obligations in connection with any contract or construction project arising out of the business for which he has been issued a certificate of competency by this board, including, but not limited to, payment for material furnished or work or services performed; provided, however, that no person found guilty of failure to pay creditors by a court of competent jurisdiction may be imprisoned, any other provision of this Code notwithstanding.
Since petitioner has failed to show that Respondent was issued a certificate of competency by whatever board is referred to in that section of the Code of Metropolitan Dade County, Florida, and since Petitioner has failed to show that Respondent failed to fulfill a contractual obligation, then Petitioner's failure to prove a violation of Section 10-22(g) of the Code of Metropolitan Dade County as alleged requires the conclusion that Petitioner has failed to prove a violation of Section 489.129(1)(d), Florida Statutes (1979).
RECOMMENDATI0N
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of
the allegations contained in the Administrative Complaint filed herein and
further dismissing the Administrative Complaint filed against him.
DONE and RECOMMENDED this 9th day of May, 1983, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT, 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 9th day of May, 1983.
COPIES FURNISHED:
Harold M. Braxton, Esquire
45 South West 36th Court Miami, Florida 33135
Mr. Joseph A. Dean
2475 North West 131st Street Miami, Florida 33167
Frederick Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
. K. Linnan, Executive Director Construction Industry Licensing
Board
Post Office Box 2 Jacksonville, Florida 32201
Docket for Case No: 82-003106
Orders for Case No: 82-003106
| Issue Date |
Document |
Summary |
|
Jul. 18, 1983 |
Agency Final Order
|
|
|
May 09, 1983 |
Recommended Order
|
Defective roof system was not the responsibility of contractor who performed only the re-roofing work authorized under his contract with city of Miami.
|
