STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1944

)

LAWRENCE M. STONER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Cocoa, Florida, on November 2-3, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Michael Egan, Esquire

ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

For Respondent: Elmo R. Hoffman, Esquire

215 East Central Boulevard Orlando, Florida 32801

ISSUE PRESENTED

Whether Respondent's license as a Certified General Contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set for the in the Administrative Complaint dated July 17, 1981.

This case arises from an administrative complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Respondent Lawrence M. Stoner, a certified general contractor, for alleged derelictions in connection with the construction and subsequent collapse of a condominium at Cocoa Beach, Florida in March, 1981. Although this case was consolidated for hearing with the case of Department of Professional Regulation, Construction Industry Licensing Board v. Bruce Alles, Case No. 81-2057, the parties announced at the commencement of the hearing that they had elected to hear this case separately. This case was originally noticed for hearing to be held on November 2, 1981. Petitioner filed a motion for continuance of the hearing on October 23, 1981 based on additional information that had been received subsequent to the filing of the Administrative Complaint. However, the matters sets forth in the motion were not considered to constitute good cause for continuance and the motion was denied.

The petition alleges that although a firm named Univel, Inc. entered into a contract with another company, Palm Harbor West, Inc. to construct the condominium project in question, Univel hired Respondent to pull the building permit in the name of the corporation for which he was the qualifying agency, Dynamic Construction Company, Inc. It further alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it is stated that the building collapsed in March, 1981 killing eleven persons and injuring twenty- three others, and that violations of the Southern Standard Building Code in the improper placement of steel rebars in columns, and inadequate thicknesses of floor slabs contributed to the collapse. Thus, the petition alleges grounds for disciplinary action against Respondent for acting as a contractor in the name of another, failing to notify Petitioner of his affiliation with another business organization, and failure to supervise the project. It also predicates discipline upon willful or deliberate disregard in violation of the applicable building codes in covering reinforcing steel without an inspection and deviating from approved plans and drawings. In his answer to the complaint, Respondent averred that pursuant to an agreement between his firm and Univel, Inc., his services were provided to Univel to serve as the general contractor for the project and that he did so, exercising proper supervision over construction, and that the building was built according to its engineering plans and drawings and applicable codes.

The parties entered into a pre-trial statement of the issues as follows:

1. Was there a duty under Florida Statutes 49.119(3)(b) for LAWRENCE M. STONER to notify the Department of Professional Regulation that he intended to affiliate with Univel, Inc. to do the Harbor Cay job?

2. Did LAWRENCE M STONER act in the capacity of a contractor under any name other than the names set forth in his contractor's certificate?

3. Did LAWRENCE M STONER have a duty to supervise and be responsible for the Harbor Cay project and, if so, did he supervise it and was responsible for that job?

4. Did LAWRENCE M STONER willfully or deliberately disregard Section 108.2 of the Southern Standard Building Code by covering steel in concrete columns on the Harbor Cay job prior to inspection, or did he willfully and deliberately disregard Section 114 of the Southern Standard Building Code by failing to follow plans and specifications calling for an eight inch slab thickness and/or by improperly

placing the steel rebar in the concrete columns?

At the hearing, Petitioner presented the testimony of fourteen witnesses and submitted fourteen exhibits in evidence. Respondent called three witnesses and submitted five exhibits. Respondent's Exhibit 5 is a late-filed exhibit received by agreement of the parties.

A Proposed Recommended Order filed by the Petitioner and Respondent's Summation have been fully considered and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.

FINDINGS OF FACT

1. Respondent, Lawrence M. Stoner, is a certified general contractor holding license numbers CG C005313 and CG CA05313, and was so licensed at all time pertinent to this proceeding. He is the qualifying agent for Dynamic Construction Company, Inc., and Atlantic Contracting, Inc., Cocoa Beach, Florida (Testimony of Respondent, pleadings, Petitioner's Exhibit 4)

   
   

2. Respondent has been the president of Dynamic Construction Company, Inc. since 1973. He formed Atlantic Contracting, Inc. in 1980, but it has been inactive and has never done business as a general contractor. Respondent is the sole employee of Dynamic Construction Company, Inc. Dynamic occupies one office in the offices of Univel, Inc., a general contracting firm in Cocoa Beach, Florida. Dynamic does not pay rent for the office, does not display company signs, nor does it have a telephone in its name. For the past three or four years, Dynamic has been associated with Univel according to an arrangement between Respondent and Kenneth Alles, Vice President of Univel, whereby Dynamic provided Respondent's services to Univel for the general supervision of construction projects. Under their oral agreement, the owner of a particular project would pay Dynamic a weekly sum through Univel for Respondent's services, and bonuses upon completion of a particular job for good performance.

   Respondent and Alles considered this arrangement to constitute a joint venture between the two general contracting firms. During the period Respondent was affiliated with Univel, he devoted his full time to its work which consisted of about a dozen projects. After approximately the first year of their association, Respondent began pulling the construction permits for the various jobs in the name of Dynamic Construction Company, Inc. Univel had a certified general contractor, David Boland, as its qualifying agent during that period until some time in late 1979. Additionally, Bruce Alles, a certified general contractor who is the son of Kenneth Alles, became a qualifying agent for Univel in the summer of 1979, but was inactive from about April, 1980 to April, 1981.

   In fact, from the time he became the qualifying agent, Bruce Alles did not perform any work as general contractor for Univel except one small remodeling job. Respondent has been in the construction business for approximately twenty years. The records of the Construction Industry Licensing Board fail to reflect that Respondent ever applied to be a qualifying agent for Univel, Inc., nor did he ever inform the Board of any intended affiliation with that firm. (Testimony of Respondent, K. Alles, B. Alles, Petitioner's Exhibits 4, 8)

   
   

3. On November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., whereby Univel agreed to construct a 118-unit condominium project to be known as Harbour Cay Condominiums at Cocoa Beach, Florida. The work was to be conducted in three phases, the first phase consisting of 45 units, the second 55 units and certain villas, and a third phase consisting of

   18 villas. Completion of the work was scheduled for April 30, 1982. The contractual cost of the Phase I portion of the project was set forth in the contract as $2,283,670, including a contractor's fee of 12% of such cost. The contract provided that payment of the contractor's fee was contingent upon provisions for payment of Towne Realty, Inc. under a separate agreement between that firm, Palm Harbor West, Inc., Ken Alles, and Scott Alles. Article 16 of the contract provided that each party shall approve the cost of the other to be charged to the project and in the event one party objected to such cost, the objecting party should be allowed to substitute its subcontractor, personnel or

   material supplier at a lesser cost, provided it did not delay completion of the project. On February 27, 1981, Dynamic and respondent as "Contractor" entered into an agreement with Palm Harbor West, Inc., Kenneth Alles, individually, and other corporations as "Developers" wherein it was agreed that the "Developers" would hold the "Contractor" harmless from third party claims arising from work performed by the Developers; personnel or agents on various projects, including Harbour Cay. (Petitioner's Exhibit 3, Respondent's Exhibit 5, Testimony of K. Alles)

   
   

4. On October 28, 1980, Respondent applied to the City of Cocoa Beach, Florida for a building permit in the name of Dynamic Construction Company, to construct a five-story, 45-unit condominium whose owner was listed as Palm Harbor west. The listed project name was "Harbour Cay" and the architect or engineer was shown to be William Juhn. The building department, City of Cocoa Beach, issued the requested permit number B5263 on December 5, 1980. Permit conditions included the statement "All construction shall conform to the Southern Standard Building Code and other requirements of the City of Cocoa Beach, Florida." (Testimony of Respondent, Straub, Petitioner's Exhibits 7, 11)

   
   

5. By Ordinance No. 608, dated October 18, 1979, the City of Cocoa Beach adopted the Standard Building Code as promulgated by the Southern Standard Building Congress International in 1979. Section 1601 of the Standard Building Code provides that all structures of reinforced concrete shall be designed and constructed in accordance with he provisions of Building Code Requirements for Reinforced Concrete, ACI 318 issued by the American Concrete Institute. Although Section 114 of the Standard Building Code purports to make it a misdemeanor for any person to violate the code or construct a building in violation of a detailed statement or drawing submitted and approved under the code, the Cocoa Beach Building Code, Article 1, Section 6-3 provides for penalties under a separate city ordinance for violating provisions of the standard building code or of the city building code. (Testimony of Straub, Petitioner's Exhibits 5B-C, 6, 14)

   
   

6. Section 106.5 of the Standard Building Code provides that whenever the work to be covered by a permit involves construction under conditions which, in the opinion of the building official, are hazardous or complex, the building official shall require that the architect or engineer who signed the affidavit, or made the drawings or computations, shall supervise such work and be responsible for its conformity with the approved drawings. Pursuant to this provision, the building official of Cocoa Beach determined that the Harbour Cay project was complex and that he did not have sufficient personnel to provide inspection services. Accordingly, he made arrangements with Respondent and the owner's representative at the site, Jack Bennett, to have the project's structural design engineer, Harold Meeler, perform such services and provide daily inspection reports to the City. Meeler assumed such functions under an oral agreement with Univel, Inc. He had either inspected or assisted city inspectors to inspect all Univel projects since 1977. (Testimony of Straub, Meeler, Respondent's Exhibit 4)

   
   

7. Two field superintendents supervised the on-site work at the Harbour Cay project One of these, Fred W. Rustman, was employed by Univel, Inc. and had fifty years experience. The other field superintendent was Patrick T. Alles, brother of Kenneth Alles, who was employed as a site superintendent by Towne Realty, Inc. a firm which owned Palm Harbor West, Inc. His immediate supervisor was Jack Bennett, also employed by Towne Realty, Inc., who served as the "owner's representative." Alles' function was to supervise the concrete and

   form work, and Rustman coordinated the balance of the job and approved vendor's bills. Rustman looked upon Bennett and Kenneth Alles as his immediate supervisors. Bennett primarily did office work such as pricing, insurance matters, time schedules, and the like. He described himself as the "anchor man" of the project who could always contact the other supervisory personnel because he stayed in place. Bennett conferred with Respondent on a daily basis and was of the view that Respondent had ultimate responsibility for the project because he was the general contractor. Kenneth Alles felt that he had ultimate responsibility for construction decisions for Univel, Inc. on the project, but looked to Respondent as having ultimate overall construction responsibility. (Testimony of Rustman, Bennett, K. Alles, Henderson, Petitioner's Exhibit 12, Respondent's Exhibit 1)

   
   

8. Respondent's functions with respect to the Harbour Cay project were varied. Although he relied upon the field superintendents for immediate supervision of construction, he conferred with them periodically for resolution of problems. Ordinarily, general contractors do not perform immediate supervisory functions at the construction site. Respondent reviewed subcontractor bids and recommended awards to be made by Univel, Inc. Univel, Inc. supplied construction personnel for the project. Respondent arranged for rental of equipment, and coordinated with the project engineers, architect, and city officials. He approved payments to subcontractors, and ensured the payment of other bills submitted by suppliers which had been approved by the field superintendents. Problems that arose were usually resolved by joint decisions of Bennett, Kenneth Alles, and Respondent. Respondent's office was approximately 1,000 yards from the job site and he made it a practice to visit the site at least three times a week. (Testimony of Respondent, K. Alles, Bennett, Rustman, Lilley)

   
   

9. Harold Meeler conducted frequent inspections of the project and rendered periodic reports reflecting such progress, commencing with garage construction in October, 1980. He was not aware of the identity of the general contractor and generally dealt with Bennett and the field superintendents. His general practice was to inspect in the late afternoon and dictate his reports in a tape recorder on site. The reports were later transcribed and submitted to Bennett. The city building officials expected these reports to be rendered on a weekly basis to him, but they were frequently slow in reaching his office. None of the reports included any indication of construction deficiencies, but merely related when the various construction stages had been completed. Testimony of Meeler, Bennett, Rustman, Straub, Respondent's Exhibit 3)

   
   

10. The construction schedule followed at the Harbour Cay site was to prepare reinforcing steel bars for the columns on Mondays and Wednesdays by securing them with steel stirrups on the ground. They were then placed in position within the forms for the columns. Although the specifications and drawings did not show how to place the bars, the number per column ranged from 4 to 8 bars as called for in the design specifications. It was noted by the reinforcing steel subcontractor that the columns were too narrow to adequately space 4 bars per column. However, the only way in which they could be and were placed was to align 4 bars down each side of the column. Generally, the design drawings for a construction project show detail as to spacing. It was noted that some of the bars at the Harbour Cay site were overbent. Meeler inspected the bars on the ground and after the concrete columns had been poured, but noted no deficiencies in his reports. However, he did give instructions on many occasions on placement and addition of bars. He was able to check the position of the bars in the concrete columns by reason of the fact that they extended out of the column into the next floor. The concrete floor slabs were poured two

    days a week after the steel had been set and the columns poured. Section 108.2(e) of the Standard Building Code provides that reinforcing steel of any part of a building shall not be covered or concealed without first obtaining the approval of the building official, the designing architect, or engineer. (Testimony of Rogers, Meeler, Bennett, P. Alles, Petitioner's Exhibits 1-2, 5a)

    
    

11. Patrick Alles, one of the field superintendents, did not start on the job until March 9, 1981, at which time the building had been completed through the third floor. On that day he observed hairline cracks in the slabs at the top and bottom of the columns. He was concerned and notified Meeler and Bennett of the existing condition. Meeler discussed the matter with A.M. Allen, a structural engineer who had actually done the design drawings, who joined him in an inspection. Allen told Meeler that there appeared to be no structural damage, but Alles thereafter added an extra line of 4 x 4 limber supports between the floors to reshore the building. Respondent was made aware of the problem but did not actually participate in the inspection and subsequent remedial work. (Testimony of Meeler, P. Alles, Respondent)

    
    

12. On March 26, 1981, a surveyor for A. M. Allen who had worked on the Harbour Cay building "layout", was on-site and observed that several of the building columns between the fifth floor and the roof line appeared to be deflected, and that one of the columns had a sag. He called this to the attention of Patrick Alles and they estimated the amount of deflection. Alles was of the opinion that one corner column was about 3/4" out of vertical on the north corner, and the surveyor estimated a 1 1/4" deflection. No action was taken with regard to the condition of the columns (testimony of P. Alles, Adams)

    
    

13. Meeler's last report, dated March 28, 1981, noted that on March 27th the roof slab was being poured. Subsequently the building collapsed and, shortly thereafter, Petitioner employed a registered professional engineer to conduct an investigation into the cause of the collapse. The engineer, Oscar Olsen, was accepted as an expert in structural engineering. He commenced his investigation several days after the collapse, at which time most of the debris had been removed from the job site. He inspected the broken slabs, columns, positions of rebar, thickness of slabs, and the steel stubbed out of the floor from the foundation and column locations which were still intact to determine the placement of steel, and number and size of bars. Comparing these with the specifications, he made an analysis of the design. He concluded that the primary cause of the building's collapse was a punching shear failure of the slab around the columns due to insufficient thickness of the slab, in combination with rather small columns. He attributed this deficiency to design failure. Although the design called for 8" thick slabs he found that in most cases the slabs were under the required eight inches varying from approximately

    7 1/2 to 7 5/8". "Shear" is a tendency for the slab to separate from the column and just slide down it. Although the slabs did not all meet the thickness requirements of the specifications, this fact would have had only a small influence on the building failure. The actual shear stress exceeded allowable tolerances by two to three times and therefore the slabs should have been designed to be about ten inches thick.

    
    

14. Steel bars in the columns coming out of the first floor level in several cases were considerably out of position in that they were too closely grouped, and in some cases, they were located completely over to one side of the column and in contact with the form. Such improper spacing violated Section

    7.6.3 of the American Concrete Institute Building Code Requirements for reinforced concrete (ACI 318-77) in that the clear distance between longitudinal bars was not at least one and a half times the diameter of the bar, or one and a

    half times the diameter of the bar, or one and a half inches. The spacing also violated Section 7.6.4 of the Code which requires that the clear distance limitation between bars applies also to the clear distance between a contact lab splice and adjacent splices or bars. This violation is based on bars projecting out of the slabs that lapped bars in the column cage that came down from above, and did not maintain the same clear distance between adjacent groups or bars.

    The ACI Code, in Section 1.1.1, states that the Code provides minimum requirements for design and construction of reinforced concrete structural elements of any structure erected under requirements of the general building code, of which ACI Code forms a part.

    
    

15. The improper placement of the reinforcing bars in the columns was not the initial cause of the building collapse, but could have aggravated the situation to some degree. Three of the columns were designed in such a manner that it would have been impossible for a contractor to meet the required ACI specifications, but the rest of them could have been done properly, although it would have been difficult to do so. Although the spacing problems can arise from the size of the reinforcing bars as designed by the engineer, it is normally the contractor's ultimate responsibility to ensure that the steel is properly placed and, if a problem in placement arises, he should call the matter to the attention of the engineer.

    
    

16. The fact that the Harbour Cay building had some variation in the plumb line on the fifth floor was not a contributing cause to the building's failure. (Testimony of Olsen, Hunter, Petitioner's Exhibits 10, 13-14)

    
    

17. The holes left by some 30 random concrete cores taken from slabs at the Harbour Cay site were measured by Warren Deatrick, Chief Engineer and Vice President of Universal Engineering and Testing Company, who is also the President of Orlando Concrete Contractors, Inc. The measurements showed that only three of the 30 cores were less than eight inches in thickness, being 7.5", 7.8", and 7.9" respectively. He noted that a number of other cores had been taken by others in the balcony areas which were designed to be approximately 1/2" less thick than the main floor slabs. Some of the main floor core holes measured more than eight inches in thickness, up to 8.4". Of the three situations involving less than eight inches in width, only the 7.5" core holes represented an excessive tolerance within reasonable construction practices, and it could have been caused by an inadvertent deflection or depression at the particular point. Due to the manner in which concrete settles in the forms and is troweled, there are always areas that tend to produce an uneven surface.

    
    

18. Concrete contractors uniformly point out problems in steel placement to the design engineers and follow his instructions as to whether or not to change its position because he is the person who knows what is necessary according to the design, and is familiar with the basic allowable tolerances. (Testimony of Deatrick)

    
    

19. On October 13, 1980, prior to the issuances of the building permit for the Harbour Cay project, the city engineer of Cocoa Beach reviewed the structural calculations for the project and found that they were in accordance with Chapter XII of the Southern Building Code Congress. (Respondent's Exhibit 2)

    
    

    CONCLUSIONS OF LAW

20. Petitioner, seeks to take action against Respondent pursuant to the following pertinent portions of Section 489.129, Florida Statutes.

    
    

    489.129 Disciplinary Proceedings. --

    (1) The board may revoke, suspend, ... the certificate or registration of a contractor to impose an administrative fine not to exceed the $1,000, place the contractor

    on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

    * * *

    (d) Willful or deliberate disregard

    and violation of the applicabale building codes or laws of the state or of any municipalities or Counties thereof.

    * * *

    (g) Acting in the capacity of a contractor under any certificate or registration insured hereunder except in the name of the certificate holder or registrant as set forth on the issued certificate or regis- tration, or in accordance with the personnel of the certificate holder or registrant as set for th in the application for the certi- ficate or registration, or as later changed as provided in this act.

    (j) Failure in any material respect to comply with the provisions of this act.

    
    

21. As heretofore stated, the parties entered into a pretrial statement of the issues which will be discussed individually below.

    
    

    2. Was there a duty under Florida statute 489.119(3(b) for Lawrence M. Stoner to notify the Department of Professional Regulation that he intended to affiliate with Univel, Inc. to do the Harbour Cay job?

    
    

22. This issue involves the application of Section 489.129(1)(j) as to whether Respondent failed in any material respect to comply with Subsection 489.119(3)(b), F.S. which states as follows:

    
    

    489.119 Business Organizations; Qualifying Agents--

    * * *

    (3)(b) The qualifying agent shall inform the department in writing when he proposes to engage in con- tracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same information to the depart- ment as required of applicants under this act.

    Respondent contends that he was engaged in a point venture with Univel, Inc., a certified contractor, and that therefore would be useless gesture for him to inform the State of this affiliation. He further maintains that Subsection 489.119(3)(b) contemplates a contractor qualifying a previously unqualified company and not a situation where both contractors are qualified. Petitioner disputes the fact that a joint venture was formed and asserts that Respondent actually was merely an employee of Univel, Inc. In any event, Petitioner claims that Respondent should have notified the State of his affiliation with Univel under Subsection 489.119(2), F.S. which requires a corporate application proposing to engage in "contracting" to apply through a qualifying agent.

    
    

23. It is manifest that in spite of Petitioner's arguments to the contrary, a joint venture was not formed with regard to the project in question. Aside from the fact that only Univel's name appeared on the construction contract and no mention was made of Respondent or his firm thereon, the facts do not show that the parties entered into a binding joint venture. One of the prerequisites of such an agreement is that the parties must have an express or implied provision for the sharing of losses. Tidewater Construction Company v. Monroe County, 146 So. 209 (1933) See generally section 682-687, Fla. Jur. 2d. Here the admitted arrangement was for Respondent's firm Dynamic Construction Company, Inc., to "lend" Respondent to Univel for the job and receive $500 a week for his services, plus possible bonuses for good performance. Although it apparently was recognized by the parties to the contract and by Respondent that he would serve as the general contractor for the Harbour Cay construction project, the fact remains that the general contractor named in the contract was Univel, Inc. and not Dynamic Construction Company, Inc. or Respondent. Section 489.105(3), F.S. defines "Contractor" in pertinent part:

    
    

    (3) "Contractor" means a person who is qualified for and responsible for the entire project contracted for and means the person who, for compensation, under-

    takes to, submits a bid to, or does himself or by others, construct . . . any building or structures . . . for others . . .

    
    

    It is apparent that under the above definition, Univel, Inc. through its qualifying agent, Bruce Alles, must be deemed the general contractor for the Harbour Cay project, even though some of the work may have been done by "others", and regardless of the fact that Dynamic through Respondent obtained the building permit from the City of Cocoa Beach. Respondent's action in this latter regard constituted an "affiliation" with Univel, Inc. which required that he notify Petitioner of such fact under Subsection 489.119(3)(b), F.S. and hence become its qualifying agent for the purposes of the Harbour Cay construction project. Not having done so, it is concluded that Respondent violated the foregoing statutory provision.

    
    

24. The second issue in dispute is stated as follows:

    
    

    Did Lawrence M. Stoner act in the capacity of a contractor under any name other than the name set forth in his contractor's certificate?

    This issue involves the alleged violation of Section 489.129(g), F.S. Assuing arguendo that Respondent and Dynamic performed in the capacity of a contractor for the Harbour Cay project, they did so in their own names because the building permit was signed by Respondent in the name of Dynamic Construction Co., Inc.

    This is sufficient to show that Respondent acted only in the name of the certificate holder in this matter.

    
    

25. The third issue is a follows:

    
    

    Did Lawrence M. Stoner have a duty to supervise and be responsible for the Harbour Cay project and, if so, did he supervise it and was he responsible for that job?

    
    

    Petitioner has alleged that Respondent violated Section 489.129(1)(j), F.S. by failing to supervise and be responsible for the Harbour Cay project as required under Sections 489.119(2) and 489.105(3) F.S. These statutory provisions deal with a definititon section and with applications to become a qualifying agent. Subsection 489.105(3) defines "contractor" in part as the "person who is qualified for and responsible for the entire project contracted for".

    Subsection 489.119(2), F.S. requires that a person proposing to engage in contracting as a corporation apply through a qualifying agent, and that such application must show:

    
    

    . . . the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business, and that he has authority to supervise

    construction undertaken by such business organization.

    
    

    Although the above two statutory provisions contemplate that a contractor will assume supervisory responsibilities for a construction project, neither provision specifically requires that a qualifying agent supervise and be responsible for a project of the qualifying firm. Further, there is no provision in Chapter 489 which delineates any specific duties and responsibilities of a qualifying agent in carrying out a construction project. Again, the mere definition of "qualifying agent" in Section 489.105(4), F.S. as "a person who possesses the requisite skills, knowledge, and experience to supervise, direct, manage, and control the contracting activities of the business entity with which he is connected. . . " does not by it s term impose any duties. In the absence of such specific requirement in Chapter 489, disciplinary action which is penal in nature cannot be imposed under Section 489.129(1)(j), F.S. Although it can be inferred from Chapter 489 that a qualifying contractor has general supervisory responsibility over a construction project, the remedy for his failure to properly supervises would necessarily have to be measured in terms of his culpability under existing statutes. An example of a ground for such failure to supervise might be found in Section 489.129(1)(m), F.S., which provides that a licensee may be disciplined upon proof of gross negligence, incompetency, or misconduct in the practice of contracting. However, this ground for discipline was not alleged by Petitioner and is therefore unavailable for application in this proceeding. In any event, the evidence shows that the Respondent provided general supervision over the construction project, albeit in a shared manner with others.

26. The final involves an alleged violation of Section 489.129(1)(d), as follows:

    
    

    Did Lawrence M. Stoner willfully or deliberately disregard Section 108.2 of the Southern Standard Building Code by covering steel and concrete columns on the Harbour Cay job prior to inspection, or did he willfully and deliberately disregard section

    114 of the Southern Standard Building code by failure to follow plans and specifications calling for an 8"

    slab thickness and/or by improperly placing the steel rebar in the concrete columns?

    
    

    In its post-hearing Proposed Recommended Order, Petitioner notes that there is nothing in the record to indicate that Respondent willfully or deliberately caused code violations of the job and therefore proposes that a recommendation be made that Paragraph 10c of the Administrative Complaint be dismissed. This view is adopted herein. Although the evidence showed that the steel rebar in the concrete columns was improperly placed, the plans and specifications did not set forth the manner in which such placement should be made, and therefore there can be no question of a failure to follow plans and specifications in that regard. As to the allegation that the plans and specifications were not followed in the requirement for an 8" slab thickness, the evidence establishes that except in one instance, the slabs were within acceptable tolerances. The evidence was insufficient to show that steel was covered in concrete columns prior to inspection by the inspecting structural engineer. There is no evidence to show that Respondent willfully or deliberately disregarded or violated applicable building codes.

    
    

27. It is considered that Respondent's established failure to inform Petitioner of his affiliation with Univel with regard to the Harbour Cay project warrants a suspension of his certified general contractor's license for a period of six months.

RECOMMENDATION

That the Construction Industry Licensing Board suspend the certified general contractor's licenses of Respondent Lawrence for a period of six months pursuant to Section 489.129(1)(j), Florida Statutes, for violation of Section 489.119(2)(b), Florida Statutes.

DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981.

COPIES FURNISHED:

Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

Elmo R. Hoffman, Esquire

215 East Central Boulevard Orlando, Florida 32801

Mr. James K. Linnan Executive Director Construction Industry

Licensing Board Post Office Box 2

Jacksonville, Florida 32301

Docket for Case No: 81-001944

Orders for Case No: 81-001944