STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, ) FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1532

)

GEORGE MORRISON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November B, 1982, in Ft. Myers, Florida. The issue for determination at the hearing was whether the respondent's license as a registered residential contractor should be suspended, revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint filed on March 8, 1982.

APPEARANCES

For petitioner: John O. Williams

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Allan T. Griffith

Griffith & Griffith, P.A.

9150 South Cleveland Avenue, Suite 1 Ft. Myers, Florida 33907

INTRODUCTION

By an Administrative Complaint filed on March 8, 1982, respondent George Morrison was charged with violating Florida Statutes, Section 489.129(1)(d) and

(m) in that he deliberately disregarded and violated the applicable building code and was guilty of gross negligence in the practice of contracting. The factual allegations of the Complaint are that a residence which respondent contracted to construct had structural deficiencies causing it to sway and be in danger of collapsing. Specifically, it was charged that an inadequate number of 2" x 12" boards were used in the pilings in that they did not properly support the structure, that the minimum number of nails to support the joist and spreader system were not installed and that washers were not installed on the bolts and none of the bolts were properly tightened.

At the hearing, petitioner presented the testimony of Thomas J. Feeney, Jr., the owner of the subject residence; Cheryl Hall, with First Federal of Ft. Myers; and George E. Blain, the Building Official for the City of Sanibel.

Petitioner's Exhibits 1 through 5 were received into evidence. The respondent testified in his own behalf and also presented the testimony of Douglas Hale, a carpentry subcontractor for the respondent; and, by way of deposition, Charles

1. Wonder, a professional engineer. Respondent's Exhibits A through E were received into evidence.

   
   

   Subsequent to the hearing, the parties submitted proposed recommended orders. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. At all times pertinent to this proceeding, respondent George W. Morrison was a registered residential contractor holding license number RR 0021945.

      
      

   2. On April 28, 1979, respondent entered into a contract with T. Joseph Feeney to construct a residence and pool on Sanibel Island "according to plans and specifications approved and signed by both parties" for the sum of

      $100,200.00.

      
      

   3. Construction on the residence was begun by respondent in late August, 1979. In January, the Feeneys desired to move into the home because they were having difficulty locating rental property. At that time, construction was not completed and neither a final inspection nor a Certificate of Occupancy had been obtained. Although construction had not yet been completed and respondent advised Mr. Feeney that it would be against the law to move into the house before a Certificate of Occupancy was obtained, Mr. Feeney and his family moved into the house on or about January 12, 1980.

      
      

   4. During the first week of occupancy, Mr. Feeney noticed that there was a sag in the bearing wall of the kitchen and that the house "swayed considerably." According to Mr. Feeney, after he was advised by Mr. Benson, a structural engineer, to either move out of the house or to "shore the house up, he attempted to contact the respondent. Mr. Feeney could not recall whether this occurred in late January, February or March of 1980. Being unable to contact the respondent, Mr. Feeney found his carpenter, Doug Hale, and explained the problem to him. Hale saw respondent that same day and respondent instructed Hale and his crew to go out to the Feeney residence that afternoon and shore the house up. Mr. Hale did notice a deflection and observed that one span was sagging down a small amount. He observed that the bridging work had been nailed from the top and recalled that the bottom nailing was to be performed after the house had settled. When performing the preventive shoring, Mr. Hale noticed that the bolts had been properly installed with washers. The bolts would have been retightened after the wood had dried and before calling in for a final inspection.

      
      

   5. Upon learning of the structural deficiencies in the Feeney residence, respondent hired his own structural engineer, Charles Wunder, and took the plans and specifications for the Feeney residence to him. Mr. Wunder found that the original drawings, plans and specifications caused the deflection problem in

      that the framing members used for the ledger beams were not of sufficient strength to hold up in the area where they were placed. Wonder's remedial plan was to use additional beam supports and steel flitch plates. He so advised the respondent by a letter dated February 12, 1980 and an attached sketch for the remedial work.

      
      

   6. After receiving Mr. Wunder's plans to remedy the structural defects, respondent ordered the steel plates and had them delivered to the Feeney residence. When respondent went there to perform the work, Mr. Feeney informed him that he wanted the work performed according to Mr. Benson's plans and blueprints. Benson's plans were much more involved and extensive, and respondent did not have the materials available to perform the work.

      Thereafter, an impasse occurred between Mr. Feeney and the respondent as to the manner in which the structural remedial work should be performed, and respondent was terminated by Mr. Feeney on or about April 13, 1980. Both respondent and his engineer, Mr. Wonder, believed that Mr. Benson's plans were "overdesigned" and massive compared to what needed to be done to make the residence structurally sound. Respondent testified that his engineer's plans for remediation would result in a cost of about $1,000.00. Mr. Feeney testified that he incurred costs of approximately $21,000.00 to have the remediation work performed according to Mr. Benson's plans. There was evidence that at least a portion of this figure was attributable to decorative and swimming pool work, as opposed to structural work.

      
      

   7. In late February or early March, 1980, after the preventive shoring had been completed by Doug Hale, the Building Official for Sanibel, George E. Blain, inspected the Feeney residence at Mr. Feeney's request. Mr. Blain found that the flooring and joist system had been installed according to the plans and specifications submitted and approved for the building permit. He could not give an opinion as to the cause of the deflection of the beams, but felt that there appeared to be a problem with the construction which could be corrected in the normal construction phase. A violation of the Southern Standard Building Code would occur only if the problem were not corrected at the time of final inspection, and this project had not yet been called up for such final inspection. While Mr. Blain found that some of the bolts were not properly placed or tightened at the time of his inspection, he found nothing to indicate that the required number of nails were not in place.

      
      

   8. After his inspection, Mrs. Blain wrote a letter to the respondent expressing his opinion that extensive remedial work was necessary to stabilize the floor support system of the Feeney residence. Respondent was instructed to have a registered engineer examine the floor support system and submit a report detailing the requirements necessary for loads stability. This report was to be received by Mr. Blain's office prior to the commencement of any corrective work by the respondent. Mr. Blain never received a response from the respondent to his March 5, 1980 letter. Respondent explained that he did not receive this letter from Mr. Blain until some time near the time that he and Mr. Feeney had reached an impasse situation with regard to the manner in which the remedial work was to be done. He therefore did not respond to Mr. Blain's letter because he did not believe that he would be performing the work.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Administrative Complaint charges that respondent deliberately disregarded and violated the applicable building code and that this is proof and continued evidence that respondent is guilty of gross negligence in the practice

      of contracting in violation of Sections 489.129(1)(d) and (m), Florida Statutes, (1979). The factual allegations in support of such charges are that

      
      

      The residence was completed on or about April 20, 1980, but displayed violations of the building code in that the building had structural deficiencies causing it to sway and be in danger of collapsing . . .

      
      

      It was specifically alleged that an inadequate number of boards were used in the pilings, that the minimum number of nails to support the joist and spreader system were not installed and that washers were not installed on the bolts at the top of the pilings and that the bolts installed were not properly tightened.

      
      

   10. The burden in this proceeding rests with the Department of Professional Regulation, Construction Industry Licensing Board to prove, by competent and substantial evidence, the factual allegations of the Complaint and to prove that such allegations, if proven, constitute grounds for disciplinary action. Here, the petitioner has failed to prove the material factual allegations of the Administrative Complaint.

       
       

   11. First, there was no evidence that the Feeney residence, as charged in the Complaint, was "completed" on or about April 20, 1980, or, if it was, that it displayed violations of the building code on or about that date. In any event, the testimony in this case illustrates that Mr. Feeney had terminated his contract with the respondent prior to April 20, 1980, and that the construction on the Feeney residence was never called up for final inspection while the respondent was still on the job. Moreover, there was no competent, substantial evidence that there was an inadequate number of boards used in the pilings or an inadequate number of nails to support the joist and spreader system. The evidence regarding the bolts and washers was not sufficient to demonstrate any violation of the Southern Standard Building Code. The evidence is clear that the construction work on the Feeney residence had not been completed either at the time the Feeneys illegally moved into the residence or at the time of the Building Official's inspection in early March. The evidence is also clear that respondent followed and did not deviate from the construction plans and specifications provided by Mr. Feeney and approved by the City Building Department. The petitioner's own witness, Building Official Blain, testified that there were no violations of the building code since construction was not yet completed and that any apparent construction problem could be corrected in the normal construction phase. Given these facts, it cannot be concluded that respondent willfully or deliberately disregarded and violated the applicable building code, as prohibited by Section 489.129(1)(d), Florida Statutes.

       
       

   12. Upon learning of the possibility of structural deficiencies in the Feeney residence, respondent immediately sent his carpentry subcontractor to the site to perform preventive shoring. He also consulted a professional engineer for suggestions as to how to perform the remedial structural work, and attempted to abide by the suggestions he received. He was prevented from doing so by Mr. Feeney, who, instead, wanted him to follow Mr. Benson's plans for the remedial work. Mr. Benson was not called as a witness in this proceeding. The only evidence as to the reasonableness or propriety of Mr. Benson's plans came from the respondent and his engineer, Mr. Wonder, who considered Mr. Benson's plans to be "overdesigned" and massive compared to the work needed to be done to make the residence structurally sound. Given this evidence, it cannot be concluded that respondent is guilty of gross negligence in the practice of contracting.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against George Morrison on March 8, 1982, be DISMISSED.

Respectfully submitted and entered this 10th day of March, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 10th day of March, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street (Suite 204) Tallahassee, Florida 32301

Allan T. Griffith, Esquire Griffith & Griffith, P.A.

9150 S. Cleveland Ave. (Suite 1) Ft. Myers, Florida 33907

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director

Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32202

Docket for Case No: 82-001532

Orders for Case No: 82-001532