STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-784

)

PETER C. SWEBELIUS, SR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Bearing Officer, James E. Bradwell, held a public hearing in this cause on June 21, 1977, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Paul Hagglund, Esquire

Hagglund, Matthews & Hagglund, P.A 1055 North Dixie Freeway

Post Office Drawer J

New Smyrna Beach, Florida 32069

The Florida Construction Industry Licensing Board (hereinafter Board) filed an amended administrative complaint against licensee Peter C Swebelius Sr., a registered, certified residential contractor who holds license no. CRC005629, seeking to suspend his license and his right to practice thereunder based on allegations set forth in detail hereinafter that the licensee was in violation of Chapter 501.204, Florida Statutes, as implemented by Rules of the Department of Legal Affairs, Chapter 2-15.03 in that:

A. The contractor deviated from and disregarded plans and specifications in a material respect without the consent of the buyers, Betty and Andrew Banko, with whom he had contracted to construct a home by: (1) omitting flashing around the upper and lower levels of their home causing severe water problems; (2) that

the contractor constructed a monolithic concrete floor contrary to the plans and (3) the contractor constructed the chimney in a shape contrary to the plan. Finally, it is alleged that due to various deficiencies in stair railings, the attic access and the garage beams violations of the Southern Standard Building Code has occurred and the owner-purchaser is unable to secure a

final inspection and certificate of occupancy from the Volusia County inspection department.

It is therefore alleged that the above conduct constitutes a violation of Chapter 468.112(2)(a), Florida Statutes for which the Board seeks to suspend the licensee's residential contractor's license for a period of six months.

Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis

   C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable

   
   

2. John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control.

   
   

3. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall

   occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project.

   
   

4. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57 (1), Florida Statutes.

   
   

6. The authority of the Board is derived from Chapter 468, Florida Statutes.

   
   

7. Insufficient evidence was adduced during the course of the hearing to establish that the Respondent Licensee, Peter C. Swebelius, Sr., engaged in conduct violative of Chapter 468.112(2)(a), Florida Statutes, which would warrant suspension of his residential contractor's license. Rather it appears that the contractor attempted to erect the Banko home as close as practicable to the plans and specifications despite conflicts between the two. Credible testimony was adduced lending support for the licensee's erection of a monolithic floor as opposed to the spreads or step footing as the plans called for. Other evidence revealed that flashing was in fact used in the construction of the Banko residence and that when requested, a certificate of occupancy will be granted. Respecting the chimney shape, it is true that the plans called for a different shape than that built. However, this, in the opinion of the undersigned, amounts to at best, a technical violation for which I shall recommend that a written reprimand be issued to the Respondent-Licensee.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND:

That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence.

RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J

New Smyrna Beach, Florida 32069

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY

LICENSING BOARD,

Petitioner,

vs. DIVISION OF ADMINISTRATIVE

HEARINGS, DOCKET NO. 76-784

PETER C. SWEBELIUS, SR.

CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069,

Respondent.

/

FINAL ORDER OF

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on October 7, 1977.

Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Each Board member was provided a complete transcript of the proceedings

of the administrative hearing prior to the meeting. Respondent was notified of the meeting so that respondent ore counsel might appear before the Board.

Respondent did appear.

The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on October 7, 1977 by

motion duly made and seconded voted to suspend for six (6) months the certified residential contractor's license of Peter C. Swebilius, Sr. It is therefore,

ORDERED that the certification of respondent PETER C. SWEBILIUS, SR., Number CR C005629 be and is hereby suspended for a period of six (6) months.

Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules.

Dated this 18 day of October, 1977.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

By: JOHN HENRY JONES, President

Docket for Case No: 76-000784

Orders for Case No: 76-000784