Findings Of Fact At all times material to these proceedings, Respondent Albritton was licensed as a certified roofing contractor and held license number CC C015182. Mr. Albritton was the qualifying agent for Albritton Roofing, Inc. On or about May 30, 1985, Albritton Roofing, Inc. submitted a proposal to Inter-Urban Developments, Inc., to install a tile roof on the single-family residence which was being built for Ernani and Giorgina Grilli in Cape Coral, Florida. Inter-Urban Developments, Inc., was the general contractor for the construction of the custom home being built for Mr. and Mrs. Grilli. The proposal reflected that Albritton Roofing, Inc. was willing to install a roof on the Grilli residence. The roof was to consist of the following: a thirty pound base felt, a ninety pound felt which was to be hot mopped, and a Monier tile roof covering. The tile was to be placed on the roof by using the mud application system. The tiles which had to be cut would be sawed and mitered. The proposed cost of the roof was to be $8,370.00. When the general contractor decided that the tiles could be broken instead of cut, the price was reduced to $7,588.00 The modified proposal was accepted by the general contractor and Albritton Roofing, Inc. It was agreed that the work would be completed in a workmanlike manner, according to the standard practices. In the City of Cape Coral at the time the roof was installed on the Grilli residence in 1985, the standard practice of local roofers was to apply tiles over a thirty pound base felt and a hot mopped ninety pound felt roof with a mud system. The tiles were decorative in nature and were used to keep the sun off the true roof, the hot mopped, ninety pound felt. Fewer tiles were used per square under this method of application and a head lap of one and one-half inches was used during the tile application. Although Cape Coral was without a building code, the head lap requirement was set forth in the county building code. In addition, pursuant to local practices, tiles were marked and broken with a trowel when it was necessary to use a smaller tile. Instead of sawing and mitering the tiles together for a finished look, the mud was used over the top of the tiles in the areas where they were to be joined. Upon completion of the installation, the roof was accepted by the general contractor and the owners of the property. A three-year guarantee of all materials and workmanship furnished by Albritton Roofing, Inc. was issued on October 28, 1985. The guarantee expressly excepted acts of God or accidents from its provisions. On March 18, 1987, the owners of the residence had a pre-installation inspection of the roof made by the installers of a solar pool heating system. During the inspection, it was discovered that many of the roof tiles were loose. The owners were immediately informed of the situation and were advised that the solar heating company would not be responsible for the condition of the roof. After the solar pool heating system was installed on the roof, the owners notified the Respondent Albritton that the roof tiles were loose, and that they wanted Albritton Roofing, Inc. to honor its guarantee. When one of the Respondent's employees went to view the roof, he discovered that solar panels had been installed on the roof. When the employee saw that changes had been made to the roof, he leapt to the conclusion that the loose and broken tiles on the roof were caused by the solar heater installers or other people walking on the roof tiles. However, in spite of the belief that the tile damage was not caused by faulty materials or improper workmanship, Albritton Roofing, Inc. replaced a whole pallet of the Monier tiles on the Grilli roof, free of charge on April 28, 1987. After the tiles were replaced by Albritton Roofing, Inc., the owners continued to experience problems with loose and sliding tiles. In July 1987, Mr. and Mrs. Grilli made a written demand upon Albritton Roofing, Inc. to honor the guarantee and to properly secure the roof tiles. In response to the written demand, Albritton Roofing, Inc. stated that the tiles had been cemented down as they were supposed to have been, and that the problem of loose tiles was caused by the solar panel installers, who broke the tiles loose from the cement when they walked on the roof. Albritton Roofing, Inc. took the legal position that the repairs needed were not caused by faulty materials or workmanship. Thus, the guarantee did not apply in this situation. In August 1987, the roofing inspector for Cape Coral completed a roof inspection at the Grilli residence. It was the inspector's opinion that every section of the roof had loose tile. From his visual inspection, the inspector was able to observe that tile had begun to slide down past the two inch head lap on various areas of the roof. Many of the hip and ridge tiles were loose. In response to the inspector's written report, which opined that the mud might not have been placed at the proper locations under the tiles or that there might have been a problem with the mud mixture, an inspection was completed of the roof by C.A. Wunder, Jr. of C.A. Wunder Engineering, Inc. on behalf of Albritton Roofing, Inc. In September 1987, Mr. Wunder completed his inspection by climbing a ladder and checking tiles within arms's reach in three areas. The inspection revealed that tiles were loose in large areas of the roof. An examination of some of the loose tiles revealed that all of these tiles had mud under them and that the bond between the mud and tile had been broken. It was suggested that people walking on the roof or strong winds provided uplift which broke the bond between the tiles and the mud. On December 7, 1987, a roof inspection was completed by D.H. Gracey on behalf of Mr. and Mrs. Grilli. Mr. Gracey is a roofing consultant who testifies in litigation matters as an expert witness. Dr. Gracey observed that sixty percent of the tiles were loose and had no bond against slippage or wind uplift. Another inspection of the roof was conducted by Jack Hurlston, a certified roofing contractor hired by the Department on August 2, 1989. During the inspection, approximately seventy-five percent of the tiles were loose due to lack of adhesion. In some areas, one bed of mud was used to hold two tiles. Insufficient mud was used in setting tile caps on hips. Hip caps had been stretched leaving insufficient head lap. The proper way to apply the mud on roof tiles in Cape Coral in 1985, was to place the mud about halfway down each tile about four or five inches from the bottom of the tile. Sufficient mud beds had to be placed underneath the tiles as well in order to attach them to the roof. The Respondent Albritton was on site while the tile was being installed on the Grilli residence in 1985. The employee of Albritton Roofing, Inc. who installed the tile on the Grilli residence failed to consistently follow the Respondent's instructions that mud be placed on each tile in a certain spot before the tile was bonded to the roof. The installer's failure to follow instructions for the application of the mud was misconduct which contributed to the roof's decline. In addition, the use of one mud bed to hold two tiles in some areas was a defect in workmanship under the applicable local standards during the time the roof was applied. The owners of the residence have been harmed by the misconduct in that they have loose tiles which continue to slide down the roof and occasionally fall into the yard. The tiles will eventually fail to protect the ninety pound felt from sun damage. The tile roof was applied for this purpose in addition to its cosmetic benefit. No notice of mitigation or aggravation was submitted to the Hearing Officer at the formal hearing.
Recommendation Based upon the foregoing,, it is RECOMMENDED: That the Respondent, as the qualifying agent, be found guilty of having violated Section 489.129(1)(m), Florida Statutes, by failing to adequately control construction activities which resulted in misconduct by the tile installers who failed to properly apply the mud beneath the tiles in some areas of the roof. As a result, there are loose tiles on the roof which were caused by the faulty workmanship. That the Respondent be found not guilty of all of the other alleged violations in the Administrative Complaint. That the Respondent be required to pay a $500.00 fine as set forth in Section 21E-17.001(19)(b), Florida Administrative Code. The reason the lower end of the fine scale is recommended by the Hearing Officer is that the misconduct by the installers was not readily observable by the Respondent during his inspection of the tile roof cover. In addition, the Respondent consistently acted in good faith in his attempts to negotiate with the owners of the roof. DONE and ENTERED this 29th day of March, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 29th day of March, 1990. APPENDIX TO RECOMMENDED ORDER Petitioners's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1 - #3. Accepted. See HO #6. Rejected. Inconsistent with other, accepted testimony of other witnesses. See HO #6. The relevant point, that loose roof tiles were discovered in March 1987, is accepted. Accept that Albritton issued a three-year guarantee. See HO #5. Accept that tiles were replaced on the roof after March 1987. See HO #8. Accept that the owners continued to experience problems with loose and sliding tiles, and made a written demand to Albritton to honor the warranty. See HO #9. Reject the proposed finding that replacement tiles were a different color. Not proved by competent substantial evidence. Rejected. Improper lay opinion. Contrary to fact. See HO #4. Accept the first two sentences. See HO #11 and #12. Reject third sentence. Irrelevant. Reject fourth sentence. Lack of proper factual foundation on which to base his conclusion. Accept that D.H. Gracey examined the roof. See HO #13. Reject his opinion that the tiles were laid over a sub-roof. Contrary to fact. See HO #4. Reject the opinion of D.H. Gracey. Mr. Gracey approached the problems regarding the roof as if it were a product's warranty case. His opinions did not aid the trier of fact in the determinations which had to be made in these proceedings. His opinions that the tiles were not installed as per the manufacturer's recommendations were irrelevant. Reject the first sentence. Irrelevant. Accept the second sentence. See HO #13. Rejected. Irrelevant. Reject that sixty percent of the tiles were loose. The rest of the paragraph is accepted. See HO #14. Rejected. Irrelevant. Rejected. Not probative of anything. Irrelevant. Rejected. Speculative. Rejected. Irrelevant to the issues in this proceeding. Accepted. See HO #19. Rejected. Irrelevant. Rejected. Contrary to proof established at hearing. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #3 and #4. Rejected. Contrary to fact. See HO #16 - #18. Copies furnished: Andrea Bateman, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Thomas M. Brondstetter, Esquire 1617 Hendry Street Post Office Box 2397 Fort Myers, Florida 33902 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether Petitioner is entitled to reimbursement of its attorneys' fees and costs under section 120.595(3), Florida Statutes, from its successful prosecution of a rule challenge in DOAH Case No. 12-1944RX.
Findings Of Fact In DOAH Case No. 12-1944RX, Petitioner challenged Florida Administrative Code Rules 69O-170.017 and 69O-170.0155 and incorporated forms OIR-B1-1699 (Form 1699) and OIR-B1-1655 (Form 1655). These rules generally relate to fixtures and construction techniques that mitigate wind loss and earn homeowners a discount on the wind portion of their homeowners' insurance premium. The most important of these rules, Form 1699 consists of two matrices: one matrix provides discounts for mitigative fixtures and construction techniques applied to existing residential construction (i.e., predating the 2001 Florida Building Code), and the other matrix provides discounts for mitigative fixtures and construction techniques applied to new residential construction (i.e., subject to the 2001 Florida Building Code or any of its successors). The Final Order invalidates the matrix applicable to existing residential construction, but not the matrix applicable to new residential construction. The Final Order concludes that the omission from Form 1699 of discounts for increased wind resistivity for doors modifies and contravenes the law implemented and is arbitrary. The Final Order finds other omissions from Form 1699--i.e., discounts for increased wind resistivities for windows and increased impact resistivities for doors--but these findings served the purpose of partly justifying the invalidation of the entire form for the omission of a single set of discounts substantially affecting Petitioner--i.e., the discounts for increased wind resistivities for doors. (Findings as to the interdependency of all of the discounts provided the remaining justification for invalidating the entire form for the omission of a single set of discounts.) Form 1655 advises homeowners of the availability of discounts applicable to the wind portion of their homeowners' insurance premiums for various mitigative fixtures and construction techniques. The Final Order invalidates Form 1655 in its entirety. The main reason is that Form 1655 fails to notify homeowners about the availability of discounts for fixtures and construction techniques that increase the wind resistivity of windows and doors. An additional reason is that Form 1655 mentions shutters as the sole fixture to increase the impact resistivity of windows and doors, misleadingly implying that shutters are the sole fixture or construction technique for increasing the impact resistivity of windows and doors. Rule 69O-170.017 incorporates by reference Form 1699. The Final Order denied Petitioner's request to invalidate rule 69O-170.017 because the rule incorporates the still-valid, existing-construction matrix in Form 1699. Rule 69O-170.0155 incorporates by reference several forms. The Final Order invalidates only rule 69O-170.0155(k), which is the subsection that incorporates Form 1655. Petitioner commenced its rule challenge to obtain a wind-premium discount for homeowners who purchased and installed its bracing system on their existing, nonglazed garage doors in order to increase their wind resistivity. The thrust of Petitioner's challenge was thus to the omission from Form 1699 of any discounts for fixtures and construction techniques that increase the wind resistivity of doors. Obviously, the shortcomings of Form 1655--and its adopting rule, rule 69O-170.0155(k)--were almost entirely derived from this omission from Form 1699. Respondents' liability for attorneys' fees and costs thus requires consideration only of its adoption of Form 1699 without any discounts for fixtures and construction techniques that increase the wind resistivity of doors. As noted in the Final Order, the establishment of discounts for all mitigative fixtures and construction techniques is a complicated process. The actuarial expertise necessary to complete this task resides in Respondent Office of Insurance Regulation (OIR), but is itself dependent on engineering expertise that is not found within either respondent, or at least was not in 2006 when Form 1699 was adopted. The engineering work underlying Form 1699 featured computer modeling, among other things, to project the salient features of storms that may be expected to strike various parts of Florida over thousands of years; as for impact resistivity, to project the trajectories and momentum of missiles that will be launched by these storms; to place in the path of these storms and missiles various forms of residential construction with relevant combinations of mitigative fixtures and construction techniques covering several factors, including the protection of windows and doors from impacts and the protection of windows and doors from wind (without regard to impacts); to project the damage states that will result from these modeled storms upon individual hypothesized residential buildings; and to project the economic losses--with particular emphasis on insured losses--that will result from these damages. The relevant timeframe for this case begins with Hurricane Andrew in 1992. As the Final Order describes, the Florida legislature and other federal and state agencies and organizations reacted swiftly and comprehensively to this storm and the catastrophic damage and loss that it caused. FEMA quickly published its analysis of, among other things, the relationship between construction and storm damage. In 2001, the legislature adopted the Florida Building Code (FBC), which required, among other things, new construction to meet wind loads specified in the code, based on projected wind speeds in different regions of Florida. Almost at the same time that the 2001 FBC went into effect, in March 2002, Applied Research Associates, Inc., published the Development of Loss Relativities for Wind Resistive Features of Residential Structures (2002 ARA Report). Procured by the Florida Department of Community Affairs, which, at the time, had considerable responsibilities in the adoption of the 2001 FBC, the 2002 ARA Report was a groundbreaking achievement in modeling the effects, in terms of reduced damage and loss, from various forms of mitigative fixtures and construction techniques, alone and in almost countless combinations. For present purposes, the focal point of the 2002 ARA Report were tables of loss relativities, which provided factors by which to calculate how different combinations of mitigative fixtures and construction techniques reduced wind losses. Taking these data, OIR's actuaries issued in January 2003 an informational memorandum and a precursor to Form 1699, which suggested premium discounts to be used by homeowners' insurers when filing insurance rates. (Then and now, insurers are permitted to use other data sources in setting their rates, but all but two of them use the suggested discounts in Form 1699.) In August 2004, Hurricane Charley struck Florida. A design wind event, like Hurricane Andrew, the timing of Charley, after the adoption of the 2001 FBC, proved the effectiveness of the 2001 FBC in requiring fixtures and construction techniques that demonstrably mitigated wind damage and loss. In 2006, respondents issued Form 1699 in its present form, eliminating a dampening factor that they had included in the precursor form three years earlier. (To allow insurers to adapt to the new rate-setting environment, respondents had halved the discounts in the precursor form.) The 2002 ARA Report claims to adhere to the statutory mandate contained in section 627.0629(1), to determine discounts for fixtures or construction techniques that "enhance roof strength, roof covering performance, roof-to-wall strength, wall-to-floor-to-foundation strength, opening protection, and window, door, and skylight strength." For reasons explained in the Final Order, "opening protection" is limited to the impact resistivity of windows and doors, and the "strength" of windows and doors (skylights being treated as windows) is limited to their wind resistivity. Unfortunately, the 2002 ARA Report collapsed opening protection and the strength of windows and doors into one category--opening protection--so ARA never developed loss relativities for fixtures and construction techniques that increased the wind resistivities of doors or, for that matter, windows. As noted above, respondents were entirely dependent on the work of ARA due to its specialized knowledge of the FBC and, more generally, its expertise in engineering and computer modeling. ARA, not respondents, possessed this highly specialized knowledge, which was necessary to generate the loss relativities, on which respondents, in turn, could rely to generate the legislatively mandated premium discounts. The omission of loss relativities for the strength of windows and doors--as a standalone category or within the category of opening protection--is not apparent in the richly detailed 2002 ARA Report. The above-described facts--coupled with the time- pressured nature of the task assigned to respondents--provide the reasonable basis in fact for the adoption of the portion of Form 1699 that has been invalidated. The factual justification for the adoption of the portion of Form 1699 that has been invalidated is greater than any legal justification that respondents may claim. The statute truly is a model of clarity--and succinctness. Reduced to its plainest terms, the statute calls for discounts for six categories of mitigative fixtures and construction techniques, and ARA and respondents addressed only five. However, some legal justification exists for the adoption of the portion of Form 1699 that has been invalidated. First, the legal mandate of section 627.0629(1) does not exist in a vacuum; it operates in the complex facts of engineers, computer programmers, and actuaries whose work is necessary to lend meaning to the statutory mandate. To this extent, respondents find some legal justification for the same reason that they find ample factual justification for the adoption of the portion of Form 1699 that has been invalidated. Second, the legislature itself missed a clear, early opportunity to remind respondents of their failure--obvious, perhaps, only in hindsight--to address the omitted sixth factor enumerated in section 627.0629(1). The precursor of Form 1699 likewise omitted discounts for fixtures and construction techniques that increased the wind resistivities of doors and windows. When, in 2006, the legislature mandated the adoption of full discounts, without any dampening, it easily could have forcibly reminded respondents that they--and their contractor-- had missed one of the six statutory discounts. The subtlety of respondents' legal error seems to have eluded the legislature, as well. Third, even in hindsight, the legal underpinning of the invalidation of the existing-construction matrix of Form 1699 is sometimes elusive, given the temptation to join ARA and respondents in analyzing wind resistivities under the factor of opening protection. As disclosed at the hearing, the Administrative Law Judge spent a considerable amount of time, in preparing the Final Order, misanalyzing respondents' treatment of the wind resistivities of doors from the perspective of opening protection. Repeated, close readings of section 627.0629(1), in the context of the complex materials presented in the 2002 ARA Report, eventually revealed the now-clear legal principle that the omitted sixth statutory factor--the strength of windows and doors--applied to wind resistivity (and opening protection was restricted to impact resistivity). And Petitioner itself joined in exactly the same misanalysis, both in its pleading and proof at the hearing in the rule challenge. Seeming to yield once more to this misanalysis, even in the fee hearing, Petitioner cross-examined OIR's lone witness with an emphasis on respondents' flawed decision, as described in the Final Order, to omit a discount for doors under opening protection.
The Issue Whether one or more of the following penalties should be imposed on Sylvia Allen: revocation or suspension of Ms., Allen's practice, imposition of an administrative fine and/or any other relief that the Petitioner deems appropriate?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against registered roofing contractors in the State of Florida. Sylvia V. Allen is, and has been at all times material hereto, licensed as a registered roofing contractor in the State of Florida. Ms. Allen holds State of Florida license number RC 0046666. Ms. Allen was at all times material hereto the qualifying agent and the President of Lakemont Construction, Inc. of Park 20 West, 1250 Blountstown Highway, 1236-C, Tallahassee, Florida. In early 1987, Ms. Allen submitted a bid to the Department of General Services (hereinafter referred to as the "Department") for the reroofing and waterproofing of the National Guard Armory building (hereinafter referred to as the "Armory") located in Winter Haven, Florida. The bid submitted by Ms. Allen was for $96,536.00. The Department accepted the bid submitted by Ms. Allen and entered into a contract with her on March 31, 1987. Because the contract price was less than $100,000.00, no bond was required to be posted. On April 20, 1987, a notice to proceed/mobilize was issued by the Department to Ms. Allen. On or about April 29, 1987, Ms. Allen mobilized. Work on the project began on May 11, 1987. The first work performed on the project pursuant to the schedule of work to be performed was the removal of the existing roof and the placement of a temporary roof on the Armory. On May 20, 1987, Ms. Allen submitted a pay request to the architect for the project, Mr. Shafer. This request was forwarded to Thomas Berley, a project director for the Department. Mr. Berley received the request on May 26, 1987. Upon receipt of the request, Mr. Berley notified Mr. Shafer that Ms. Allen needed to provide the Department with a bar chart showing work progress on the project before the pay request could be processed. Efforts were then begun to try to locate Ms. Allen to inform her of this requirement. Mr. Berley was informed by Mr. Shafer that Ms. Allen could not be located. Therefore, Mr. Berley telephoned Ms. Allen's place of business in Tallahassee. Her telephone had been disconnected. Mr. Berley instructed another project director of the Department located in Tallahassee to go the Respondent's office. Mr. Berley was advised that no one was at the office. Ms. Allen's subcontractors were contacted in an effort to reach Ms. Allen. Mr. Berley was informed that the subcontractors could not locate Ms. Allen either and that no contact had been made by them with Ms. Allen since May 26, 1987. Mr. Berley received a copy of a June 2, 1987, letter from Mr. Shafer to Ms. Allen requesting that she contact him. On June 4, 1987, Mr. Berley sent a letter to Ms. Allen advising her of obligations and giving her seven days to indicate why she was not on the job. This letter was sent certified mail and was signed for on June 11, 1987. Work on the project stopped during early June, 1987. A third and final letter seeking to contact Ms. Allen was sent to Ms. Allen but was returned unopened. Because of the failure of Ms. Allen to contact the Department or the project's architect and because of concerns about the ability of the temporary roof to prevent water damage, the contract for reroofing the Armory was terminated at midnight, June 14, 1987. The concerns about the ability of the temporary roof to prevent water damage to the Armory were legitimate concerns. A temporary roof is only intended to keep water out for a short period of time. Work on the project should not have been stopped while the temporary roof was on the Armory. Failure to pay the pay request would not justify Ms. Allen's actions. On June 16, 1987, Ms. Allen contacted Mr. Berley by telephone. Mr. Berley notified Ms. Allen that the Armory contract had been terminated. On June 19, 1987, the Department received a proposal to finish the project using Ms. Allen's subcontractors. The cost of completing the project was $8,000.00-$9,000.00 more than Ms. Allen's bid price. Leaving a temporary roof on the Armory for three weeks was excessive. Once work began on this project, the work should have proceeded continuously until the new roof had been completed. While the temporary roof was on the Armory excessive damage could have occurred resulting in structural damage as well as cosmetic damage. Ms. Allen's actions constituted abandonment of the job. Ms. Allen's actions also constituted incompetence in the practice of contracting. Ms. Allen has previously been issued a letter of guidance from the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Sylvia V. Allen be found guilty of having violated Sections 489.129(1)(k) and (m) , Florida Statutes. It is further RECOMMENDED that Ms. Allen be required to pay an administrative fine of $2,500.00 to the Petitioner. DONE and ENTERED this 1st day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1988. APPENDIX Case Number 88-1997 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 6-7. 5 8-9. 6 10. 7 11. 8 Hereby accepted. 9 12-13. 10 14. 11 15. 12-13 16. 14 6. 15 17. 16 19. 17-18 20. 19 18. 20 19. 21 21. 22 22. 23-24 23. 25 24. 26 Irrelevant. 27 25. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Sylvia V. Allen 110 Dixie Drive, D2 Tallahassee, Florida 32304 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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) ================================================================ =
Findings Of Fact At all times pertinent to the issues herein, Graciela Zara was a registered roofing contractor in the State of Florida having license number RC 0035417. Respondent qualified Rolando Lopez Roofing Corp. at all times material to the complaint. Roofing work was done on the building located at 8413 8415 Hardin Avenue; however, the roofing work was not done by Rolando Lopez Roofing, but rather by Chungo, an employee of M. G. Construction Company, the owner of the building. Certain materials for the roofing work were delivered to 8413-8415 Harding Avenue by Tops All Roofing & Building Products, Inc., and those materials were ordered by Rolando Lopez and/or Renee Garcia. Rolando Lopez Roofing performed roofing work at the the bank at Las Americas Shopping Plaza, 8500 N.W. 85th Street; however, there was no evidence presented that Rolando Lopez Roofing failed to obtain a permit for the work it performed. Tropical Roofing entered into a contract for roofing work at the home of Mr. Sosa, 3001 S.W. 96th Avenue, Miami, Florida. 2/ The work was subcontracted to and done by Rolando Lopez Roofing. Although a permit for the work was required, respondent failed to obtain a permit. The respondent was responsible for obtaining the permit because the contractor that performs the work is responsible for obtaining the permit. Leon Gomez entered into a contract with Rene Garcia for roofing work at 309 Pinecrest Drive. Rene Garcia performed the roofing work on the house and was paid for the work by Mr. Gomez. However, the permit for the roofing work was obtained by the respondent. Roofing work was performed at the home of Felipe Acosta, 401 Flagami Boulevard, Miami, Florida. The permit for the roofing work was obtained by respondent. The contract for the work was with Rolando Lopez Roofing. The roofing work was performed by Rene Garcia and other workers that Mr. Acosta did not know. Mr. Acosta does not know Rulando Lopez. The contract negotiations and the payment for the job were handled by Mr. Acosta's brother. Mr. Acosta did not know whether Rene Garcia or Rolando Lopez received payment for she roofing work, but he knows his brother paid one of them. The roofing work was performed pursuant to the contract with Rolando Lopez Roofing. On June 1, 1983, Rolando Lopez Roofing Corp. issued a check for $11,667.86 to Tops All Roofing & Building Products. The check was returned by the bank stamped "Account Closed." On September 16, 1983, Rolando Lopez was adjudicated guilty of issuing a worthless check in violation of Section 832.05. Mr. Lopez paid $5,000 in restitution to Tops All Roofing & Building Products, but he was unable to pay the remaining amount because he has been unable to get any work. There was no evidence that Rolando Lopez Roofing Corp. failed to pay creditors for materials furnished. Although Rolando Lopez failed to make full restitution to Tops All Roofing and Building Products for the $11,667.86 check that was returned, there was no evidence that the check was for building supplies furnished to Rolando Lopez Roofing. Rolando Lopez testified that the check was written for the benefit of his nephew, Rene Garcia, to be used as collateral. Further, there was no evidence that Tops All Roofing & Building Products had furnished any building materials to Rolando Lopez Roofing prior to June 1, 1983, the date of the check. There was no evidence presented that Rene Garcia was not licensed by the State of Florida as a registered or certified roofing contractor
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Respondent be placed on probation for a period of six months. DONE and ORDERED this 2nd day of January, 1985, in Tallahassee, Leon County, Florida. DIANE GRUBBS 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 2nd day of January, 1985.
The Issue Whether respondent committed gross negligence, incompetence, or misconduct in connection with the construction of the Lagos home; Whether respondent failed to properly supervise the job site activities during the construction of the home; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to this complaint, respondent was a registered residential contractor in the State of Florida, having been issued license number RR0030014, and served as the qualifying agent for John C. Greer, Incorporated. Respondent is now a certified contractor holding license number CB-C035168. In December, 1984, or January, 1985, John C. Greer, Inc., completed construction of a residential home located at 13907 Shady Shores Drive in Tampa, Florida. The respondent was the qualifying agent for John C. Greer, Inc., during the construction of the home and as such was responsible for its proper construction. On September 28, 1985, approximately nine months after the home was completed, Peter N. Lagos and Carol B. Lagos signed an agreement to purchase the home from John C. Greer, Inc., for $225,048.80. Respondent was not involved in the sale of the home. Indeed, respondent had left John C. Greer, Inc., in late May or early June of 1985 and Cathy Greer, respondent's wife and a certified residential contractor, was in charge of the business operations. The home is a two-story house consisting of 2700 or 2800 square feet of living space and a two-car garage. The first floor is concrete block construction and the second floor is frame construction with cedar siding. At the rear of the house on the first floor there is a lanai, or porch, which is covered by a flat-deck roof system. One end of the flat-deck roof system serves a dual function. It is the roof for the lanai and for a portion of the breakfast nook which extends into the lanai, and it is the floor for the balcony, or deck, which is connected to the second floor master bedroom. Sliding glass doors provide access from the master bedroom onto the deck. The portion of the roof which also functions as a deck was installed and intended to be perfectly flat with a zero pitch so that the deck could be utilized. The remainder of the roof system has a slight pitch. Before purchasing the home, Mr. Lagos noted that there were one or two fist-sized holes in the lanai ceiling and smaller holes in the breakfast nook ceiling by the air conditioning duct. He also observed stains on the ceiling by the recessed lights in the breakfast nook. The second floor deck had standing water near the sliding glass doors and also in a corner of the deck. Mr. Lagos was advised that a sheetrock man would repair the holes and everything would be corrected. Mr. Lagos reinspected the home prior to closing and was apparently satisfied with the repair work that was done. The Lagos' closed on the house on October 23, 1985, and moved in the next day. On the first night the Lagos' were in their new home it rained and water came out of the air conditioning register and through the lights in the breakfast nook. Mr. Lagos contacted John C. Greer, Inc. to correct the problem. Repairs were made in the first week of November, 1985, and the leaking stopped. The Lagos' had no apparent problem with leakage between November of 1985 and December of 1986. At the end of December, 1986, there was a substantial amount of rain. Mr. Lagos noticed that the ceiling in the lanai started to show signs of strain and buckling, and intermittently a small amount of water would seep through the breakfast nook ceiling near the lights. Mr. Lagos notified the Greers of the problem. By December, 1986, when Mr. Lagos notified the Greers of the problem, John C. Greer, Inc., had been dissolved. The corporation had built its last house in 1985 and had been dissolved after the one-year warranty period on the homes built by the corporation had expired. Therefore, when the problem with the Lagos house occurred there was no corporation, no qualifying agent, no liability insurance and no workers compensation insurance. Since there was no way for the corporation itself to correct the problem, the Greers advised Mr. Lagos to contact some contractors and get estimates of what it would cost to correct the problem. 1/ Mr. Lagos contacted Joseph Belt and Glen Kirkland, who are both certified general contractors, to provide estimates for the cost of repair. However, the repair work was ultimately performed by George Phillipson in 1988 at no cost to the Lagos'. There has been no further leaking and Mr. Lagos testified that Phillipson did "a beautiful job." 2/ There were several potential causes of the leak: (1) water ponding on the second story flat deck lanai roof; (2) improperly installed flashing; (3) water intrusion through the cedar siding and the lack of a vapor barrier behind the cedar siding. Initially, it was thought that there might be a leak in the roof itself or that the leak was caused by improper drainage of water from the roof. In March of 1987, 3/ Mr. Peter Scott, a professional engineer, inspected the flat deck roof while he was at the Lagos home to perform other work. Although it hadn't rained for two or three days before Mr. Scott observed the roof, there was still standing water on the roof deck. Regardless of any leaking, standing water on a roof is a problem because eventually the water will cause the roof membrane to deteriorate. Whether the form of the roof construction is ridge, pitch or flat, water should run to a drainage point where it will be collected and conveyed to the ground. Mr. Scott was of the opinion that a contractor building a flat deck should be especially concerned about storm water drainage. Besides the eventual destruction of the membrane, if water continues to collect on a roof it can rise above the flashing and cause leaking. However, in this case there was no evidence to establish that the standing water ever rose to that level. Although the ponding of the water on the second floor roof deck presented a problem, it was not the cause of the leak. The roof was tested by flooding and no leaking occurred. Mr. Kirkland testified that it appeared that some flashing had been improperly installed However, Mr. Kirkland admitted that when he inspected the roof deck area, someone had already taken apart the wall section and flashing. Therefore, he did not necessarily observe the flashing as it originally had been installed. Mr. Belt, who had the cedar siding removed to make an inspection, testified that there was no problem with the flashing and that the flashing appeared to be in reasonable shape. Mr. Phillipson also found that there was no problem with the flashing. Other than Mr. Kirkland's testimony that some flashing had been improperly installed, which testimony is rejected, there was no evidence suggesting that there was a problem with the flashing. The evidence established that the leakage of water into the house was caused by rainwater coming through the cedar siding. The cedar siding was attached directly to the wood frame. Both Mr. Kirkland and Mr. Belt were of the opinion that a vapor barrier should have been installed behind the siding. A vapor barrier is a film or sheeting that is placed over the frame and above the flashing. However, there was no code provision requiring that a vapor barrier be used in conjunction with the siding; the only code requirement was that the wall be moisture tight. George Phillipson inspected the Lagos home in early January, 1988. He observed standing water about a half an inch deep in an area approximately two feet by three feet in one corner of the deck roof. There was some siding separation, and the ceiling of the lanai showed indications of leakage. The ceiling was made of sheetrock, or greenboard. There was a brown stain about a foot in diameter on the ceiling, and in front of it the tape seam had separated. Because there were no signs of buckling, which would have been present if there had been a great deal of water intrusion, Phillipson concluded that he should look for a minor defect or irregularity as the source of the leak. Phillipson removed a two-foot by four-foot section of the sheetrock and examined the area of leakage from below. He also had the roof pulled back to check the plywood base. The plywood showed no signs of damage and the integrity of the built-up roofing was good. From his investigation of the house, Mr. Phillipson concluded that the leak was due to water coming through the cedar siding. Mr. Phillipson was of the opinion that the cedar had shrunk to some degree causing the caulking at the joints to separate. In a driving rain, water could get through the siding and into the wall cavity. When the deck was constructed a sill was placed on the plywood, including the inside of the wall cavity, and nailed down. Mr. Phillipson concluded that the water coming through the siding worked its way down to a nail which had pierced the sill and plywood and dripped down through the nail hole to the ceiling below. Mr. Phillipson concluded that the standing water on the roof deck had nothing to do with the leak. The standing water was located across the deck, approximately ten feet from the area where the leak occurred. From the location of the standing water, Mr. Phillipson concluded that it might have been caused by a ceiling joist failing to settle. Phillipson explained that often a piece of lumber is slightly bowed. The board is placed with the arch up, so that the middle will be higher. Normally, the board will settle or level itself. Sometimes, however, due to a knot in the center of the board or some other reason, the board does not settle and the area above the middle of the board remains slightly elevated. George Phillipson's testimony regarding the cause of the leak was the most persuasive of all the witnesses. He examined the problem areas more thoroughly than either Mr. Kirkland or Mr. Belt and he provided an analysis of the problems. Mr. Kirkland didn't do an in-depth analysis of the problem, and there was no need for him to do so. Although he looked at the house and prepared an estimate for Mr. Lagos, he admitted that his estimate was not based on any analysis of what was necessary to correct the problems, but was based on "all the things that Pete [Lagos] had requested us to perform." (T-62) When Kirkland was asked whether all the work included in the estimate was necessary he responded, "It would have brought the house up to the standards that Pete was looking for. At the time he explained to me what he'd wanted . . . . I don't think that it would have been necessary to do that to correct just that leak problem, to do everything that the proposal had covered. But he did ask me specifically for that. He pointed out exactly what he wanted me to do." (e.s.)(T-64) Since Mr. Lagos told Mr. Kirkland exactly what was to be done, there would have been no reason for Mr. Kirkland to analyze the source of the leakage or the reason for the ponding. Indeed, at one point Mr. Kirkland indicated that the leak was coming from the area of the roof where water was ponding, and he also suggested that there was a problem with the flashing. The totality of the evidence shows that Mr. Kirkland was incorrect on both of these theories. Further, Mr. Kirkland admitted that his opinion that work had not been completed properly was based on information relayed to him by Mr. Lagos rather than his own observations. (T-55) Mr. Belt's and Mr. Kirkland's testimony concerning the correct pitch for the roof is not accepted. Mr. Belt was of the opinion that the roof was improperly constructed because it did not have a minimum slope of 1/4" to one foot. Mr. Belt believed that this slope was required by code. However, the code section requiring a minimum slope of 1/4" to a foot referred only to liquid applied coatings. With other roofing materials a zero slope is acceptable. A liquid applied coating was not used on the Lagos roof, and it was not improper to construct the roof with a zero pitch. Nevertheless, there was clearly a problem with the drainage on the roof. Although the roof was intended to be a flat roof with zero pitch, at least a portion of the roof had a negative pitch slope back toward the house. Water did not drain properly. Respondent testified that the amount of ponding fell within industry standards and testified that the Home Buyers' Warranty Booklet (REx.#1) and the Home Owners Warranty Corporation Insurance/Warranty Documents (REx.#2) were the commonly relied upon performance standards in the industry. However, the Home Buyers' Warranty Booklet states that "[s]tanding water on flat built-up roof" is a deficiency and that the construction standard is that "water should drain from flat built-up roof, with minimum collecting." The Home Owners Warranty document states that "[s]tanding water on flat roof" is a possible deficiency and that the performance standard is, "[w]ater shall drain from flat roof except for minor ponding immediately following rainfall or when roof is specifically designed for water retention." The ponding water on the roof deck was a persistent problem. Mr. Scott observed standing water two or three days after it had rained. There was water ponding on the roof when Mr. Lagos first looked at the house in 1985 and there was a standing pond of water on the roof when Mr. Phillipson inspected the house at the beginning of 1988. The area of negative pitch was observed by Mr. Kirkland and Mr. Belt. The standing water on the roof was a deficiency and did not meet construction performance standards. With closer supervision this deficiency could have been prevented or corrected. The other problem with the house was that it leaked. The leak was a minor leak and was sporadic. It did not cause any damage except the staining of the lanai ceiling. Had vapor barriers been installed behind the cedar siding, the leak probably wouldn't have occurred. Nevertheless, there was no requirement that vapor barriers be installed behind the cedar siding. Cedar is quite suitable for an exterior wall and normally would be sufficient in and of itself to prevent the intrusion of water. Further, the placement of a vapor barrier directly behind the cedar siding could result in the cedar deteriorating more quickly. At the time of construction, it was not foreseeable that the leak which ultimately occurred would occur. Therefore, the installation of the cedar siding directly over the studs does not reflect incompetence or negligence in the construction of the home. Respondent's practice was to be on every construction job for which he was responsible at least once a week. Although this amount of time, in the abstract, may be sufficient to properly supervise construction activity, in this case the construction activities were not supervised as closely as they should have been. Respondent's own testimony revealed that he was not fully aware of the manner in which the house was constructed. He stated that he did not "know for a fact" whether or not the siding was installed directly over the studs. (T-105) He stated that he had not seen it. Although respondent stated that there was an effort to ensure that the deck would be flat, so that it could be utilized to the maximum, it is apparent that respondent failed to supervise the work closely enough to ensure that there was no negative pitch to the roof and that water would drain properly. At the time of the hearing, respondent had been selected Home Builder of the Year in Hillsborough County by the 1200 member builders' association. There was no evidence that respondent had ever had any prior complaints made against him or any disciplinary action taken against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent failed to properly supervise the job site activities of John C. Greer, Inc., in the construction of the Lagos home and reprimanding respondent for this offense. DONE AND ORDERED this 20th day of July, 1988, in Tallahassee, Leon County, 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 20th day of July, 1988.
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.
