STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-3307

)

AULTON DAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 1, 1983, in Pensacola, Florida.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: John Westberry, Esquire

Suite 304, Rhodes Building

41 North Jefferson Street Pensacola, Florida 32501

INTRODUCTION AND BACKGROUND

By administrative complaint filed June 28, 1982, the Respondent was charged with multiple violations of Chapter 489 of the Florida Statutes. Specifically, the Respondent was charged with violating Section 489.129(1)(d), Florida Statutes (1979), by deliberately disregarding and violating the applicable building code in Escambia County, Florida. Respondent was also charged with a violation of Sections 489.129(1)(j) and 489.129 (1)(g) in that he was doing business in the name of a company which he had failed to qualify pursuant to Florida Statute C. 489.119 (1979). Lastly, the Respondent was charged with the violation of Section

489.129(1)(i), Florida Statutes (1979), in that his general contractor's license was disciplined by the Escambia County Contractor's Competency Board.

At the formal hearing on the above charges, the Petitioner called as its witnesses Mitchell Lalas, Samuel F. Johnson, Jr., Alfred L. Cooper and Douglas Parham. The Respondent testified on his behalf and called no further witnesses. The Petitioner offered and had admitted seven exhibits. Petitioner's Exhibits 1 through 6 were admitted in their entirety and for all purposes, Petitioner's Exhibit 7 was admitted only as to the testimony of the Respondent before the Escambia County Contractor's Competency Board.

Counsel for she Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent, Aulton Day, is a registered building contractor having been issued License No. RB0013056.

   
   

2. On April 8, 1981, doing business as Day Homes, Incorporated, entered into a contract with Mitchell Lalas and his wife Cynthia A. Lalas. (See Petitioner's Exhibit 2). By the terms of the contract, the Respondent agreed to build a block retaining wall and fence at the Lalas residence for a contract price of $8,750.90.

   
   

3. The contract referred to a "plan" of the fence but the plan was not offered into evidence. By the express terms of the contract, the Respondent agreed to provide, in relevant part:

I propose to install block fence as shown on plan:

1. Inside level

2. Drain on left side

3. Post 8' apart

4. Wood 76" x 6' high

5. 2-1/2" metal rods in footing

6. 1/2" metal rods and blocks filled with concrete every 3rd course

7. Cap posts

8. Posts 76" apart

9. Plaster, seal, paint all visible blocks (swirl design)

10. A/c drain under patio

11. East side of house 5 courses 6' high wood with stepdown to top of front brick gate post

12. 12' gate

13. Dead men anchors off each post

14. Raise a/c unit.

1. The primary purpose of the retaining wall was to hold fill dirt which was to be used to level the back yard of the Lalas home. The Lalases also planned to construct a swimming pool in the back yard. The Respondent was made aware prior to entering into the contract of the proposed leveling and plan for, a swimming pool. Also, prior to entering into the contract, the Respondent represented to Mr. and Mrs. Lalas that he was experienced in building this type of retaining wall and fence.

   
   

2. On July 9, 1981, just prior to completion of the fence, Mr. Lalas noticed substantial cracking in the east side of the retaining wall. That portion of the wall was also leaning badly. The Respondent was notified and on July 10, the Respondent, along with a block mason, came out to inspect the fence. At the Lalas home on July 10, the Respondent, after observing the cracking and leaning, would not agree to repair the fence. A few days later, a second meeting occurred at the Lalas home with Mr. Lalas, the Respondent, and Mr. Cooper, of the Escambia County Contractor's Competency Board. At this meeting, Mr. Day again did not agree to repair the wall. After the second meeting, Mr. Lalas had no further discussions with Mr. Day regarding repair of the wall.

   
   

3. On December 31, 1981, the entire east side of the fence collapsed. This caused a large washed out area near the back eastern corner of the Lalas home. (See Petitioner's Exhibit 3).

   
   

4. The wall collapsed as a result of a combination of design and construction deficiencies. The retaining wall was supposed to hold a certain amount of fill dirt. The retaining wall, as constructed by the Respondent, had no dead man anchors as called for in the contract. Even with the dead man anchors, there would still have been design deficiencies but the fence would probably not have collapsed. Prior to the wall cracking, a front-end loader being used by another contractor to place fill dirt behind the retaining wall struck the east fence and broke a one by six board in the fence portion above the retaining wall. This could not and did not cause the retaining wall to crack and collapse.

5. Prior to construction, the Respondent discussed the Lalas retaining wall with a Mr. Parham, a building official for Escambia County. Mr. Parham suggested to the Respondent that he contact someone who knew how to design such a wall. There was no evidence that the Respondent consulted such a design professional, such as an engineer, prior to construction of the fence. He performed no calculations to determine the load factors on the retaining wall. Prior to entering into the contract, the Respondent estimated the number of courses of blocks which would be required in the retaining wall. He did not shoot a grade to determine the necessary height of the wall. After construction began, the Respondent's foreman on the job, Mr. Batson, shot a grade and determined that the original estimate as to the number of blocks would not be high enough. Respondent, after discussing this problem with Mr. Lalas, instructed Mr. Batson to add more blocks in order to make the retaining wall higher.

   
   

6. During construction, Mr. Curtis Batson, Respondent's foreman, recommended to Respondent that the footer of the block retaining wall be enlarged. Mr. Batson felt that enlarging the footer from 16" wide by 8" deep to 48" wide by 12" deep would eliminate the need for the dead man anchors. The Respondent agreed with Mr. Batson and asked him to speak with Mr. Lalas about the change. Mr. Batson made the recommendation to Mr. Lalas, who agreed with enlarging the footer, but did not agree to leave out the dead man anchors. The dead man anchors were not installed and Respondent was aware they were not installed.

   
   

7. From the beginning of negotiations through completion of the regaining wall, the Respondent represented to Mr. Lalas that he had the expertise to construct a retaining wall like that required by Mr. Lalas. The Respondent also represented he had had prior experience in constructing this type of wall. Mr. and Mrs. Lalas relied upon the Respondent to construct a wall which structurally and aesthetically would serve the purpose communicated by Mr. and Mrs. Lalas to Mr. Day. Respondent was aware that Mr. and Mrs. Lalas had no expertise or experience in constructing retaining walls and fences.

   
   

8. The Respondent has been licensed as a registered building contractor since January, 1973, holding License No. RB0013086. In April, 1981, Respondent was doing business as Day Homes, Incorporated. As of February 25, 1983, Day Homes, Incorporated had never been qualified as required by Florida Statutes 489.119(2) and (3)(1979).

   
   

9. On October 13, 1981, Respondent had his certificate of competency as a general contractor suspended for one year by the Escambia County Construction Industry Competency Board.

   Respondent's actions, in connection with the Lalas contract and job, was the basis for the suspension.

   
   

10. Escambia County Ordinance 80-2 Section 6(f)(10) provides that failing to diligently prosecute the work and complete contracts within a reasonable time shall constitute cause for warning or suspension or revocation of a certificate of competency by the Escambia County Contractor Competency Board.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

    
    

12. Florida Statute 489.129 (1979) empowers the Construction Industry Licensing Board to revoke, suspend, or otherwise discipline the license of Respondent if he is found to be guilty of any one of those enumerated acts listed in Section 489.129.

    
    

13. The administrative complaint charges Respondent with three basic violations of Section 489.129, Florida Statutes.

    
    

    1. Count I charges Respondent with a willful and deliberate violation

       of the applicable building code

       in violation of Section 489.129(1)

       (d) by failing to construct the fence in accordance with the con- tract and failing to correct con- struction defects in a timely manner.

    2. Count II charges Respondent with violations of Sections 489.129(1)

       (j) and 489.129(1)(g), Florida Statutes, by doing business under

       a company name he failed to qualify and doing business in a name other

       than that which appears on his license.

    3. Count III charges Respondent with a violation of Section 489.129(1)(i), Florida Statutes (1979), in that disciplinary action was taken by

       Escambia County against his license.

       
       

14. Section 489.129(1)(j) , Florida Statutes, provides that failure in any material respect to comply with the provisions of Chapter 489, Florida Statutes, shall serve as a ground for discipline by the Board. Florida Statute 489.119(2) provides in relevant part:

    (2) If the applicant proposes to engage in contracting as a partner- ship, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent; the application shall state the name of the partnership and of

    its partners, the name of the corpora- tion and of its officers and directors, the name of the business trust and

    its trustees, or the name of such other legal entity and its members; and the applicant shall furnish evidence of statutory compliance

    if a fictitious name is used. Such application shall also show that 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 organiza- tion. The registration or certifica- tion, when issued upon application

    of a business organization, shall be in the name of the qualifying agent, and the name of the business organiza- tion shall be noted thereon.

15. Florida Statute 489.129(1)(g) provides as a further ground for discipline:

    
    

    Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name

    of the certificate holder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificate holder or registrant as set forth in the appli- cation for the certificate or registra- tion, or as later changed as provided in this act.

    
    

    By doing business in the name Day Homes, Incorporated, and failing to qualify Day Homes, Incorporated as required by Florida Statute 489.119(2)(1979) , the Respondent has violated Sections 489.129(1)(g) and (1)(j)(1979), and is, therefore, guilty of the violations charged in Count II of the administrative complaint.

16. The Construction Industry Licensing Board may discipline a contractor's license if the contractor is found guilty of:

    
    

    Disciplinary action by any municipality or county, which action shall be reviewed by the state board before the state board takes any disciplinary action of its own.

    
    

17. On October 13, 1981, Respondent's Certificate of Competency as a general contractor was suspended for one year by the Escambia County Contractor Competency Board. This action constitutes a violation of Section 489.129(1)(i), Florida Statutes (.1979), by Respondent, and thus Respondent is guilty of the violation as charged in Count III of the administrative complaint.

    
    

18. Florida Statute 489.129(1)(d) provides as a grounds for discipline:

    
    

    Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

    Escambia County Ordinance 80-2 provides that a contractor may be disciplined if he fails to "diligently prosecute the work and complete contracts within a reasonable time." Diligently is defined as "in a diligent manner."

    
    

    The word "diligent" is defined as:

    diligent, a. 1. steady in application to business; constant in effort or exer- tion to accomplish what is undertaken; assiduous; attentive; industrious; not idle or negligent; applied to persons.

    2. Steadily applied; done with care and constant effort; careful; pain- staking; as, make diligent search. Webster's New Twentieth Century Dictionary, 2nd Edition P. 511 (1980)

    
    

    Section 6 (f)(10) of Escambia County Ordinance 80-2 then applies not only to the time lines of work performed but also to the care given the work itself.

    
    

19. In the instant case, Respondent knew from the beginning that Mr. and Mrs. Lalas were relying upon his knowledge and expertise to provide them with a structurally sound retaining wall. Prior to beginning construction, an Escambia County

    building official recommended to Mr. Day that before building such a wall, Mr. Day should consult a person knowledgeable in designing such retaining walls. Mr. Day did not contact such a design professional and did not do any calculations himself to determine what load factors the retaining wall would have to withstand. The contract called for dead man anchors and their primary purpose was to enable the retaining wall to withstand the load of the fill dirt, moisture) and other factors placing a load on the retaining wall. During construction, Mr. Day, along with his foreman, decided to increase the size of the footer and to omit the dead man anchors. The evidence did not establish that Mr. Lalas agreed to omit the dead man anchors. However, regardless of whether Mr. Lalas agreed, the decision that the dead man anchors were not needed was made by Mr. Day and his foreman. This decision was made without the benefit of calculations to determine if in fact the larger footer was adequate to carry the anticipated load on the wall.

    
    

20. Just as the wall was completed and fill was placed behind the wall, cracks appeared in the retaining wall and the wall began to lean badly. Mr. Day was immediately notified. Upon reviewing the problems, Mr. Day took the position that the cracking and leaning was caused by the wood fence above the retaining wall having been struck by a front-end loader placing fill dirt. There was no evidence that Mr. Day consulted an engineer or made calculations to determine if such a blow could, in fact, cause the retaining wall to crack and lean. Mr. Day, who was aware that no dead man anchors were installed, took no steps to determine what was in fact causing the substantial cracking and leaning. He also failed to take steps to correct the problem.

    
    

21. By failing to calculate anticipated load factors and then omitting dead man anchors, Mr. Day failed to diligently prosecute the work of constructing a structurally sound retaining wall. He further failed in this regard by refusing to fully investigate and repair the substantial cracking and leaning of the wall in a timely manner. This cracking and leaning should have caused Respondent to question the structural soundness of the wall. Especially since Respondent had done no calculations to determine if in fact the wall as he designed and constructed it would withstand the anticipated loads. As a result of Respondent's failure to timely repair the structural problems, the wall collapsed some five months after the problems appeared. The Respondent is, therefore, guilty of the violation charged in Count I of the administrative complaint.

    
    

22. Penalty: License revocation is an extreme and drastic penalty which should be applied only in the most flagrant oases. Taylor v. State Beverage Department, 194 So.2d 321 (.Fla. 2d DCA

1967). In the instant case, the Respondent attempted to construct a retaining wall which would be aesthetically pleasing and structurally sound. The omission of dead man anchors was due to a conclusion they were not required and not a desire to cut corners or cheat Mr. and Mrs. Lalas in any manner. Mr. Day met width Mr. Lalas on two different occasions but failed to vigorously pursue correction of the obvious problems. The Respondent went beyond his area of expertise in constructing. such a retaining wall without the benefit of a design professional but attempted to reinforce the wall sufficiently to carry the anticipated loads. The Respondent's' Certificate of Competency has already been suspended by the Escambia County Contractor Competency Board for a period of one year. There was no evidence of any prior disciplinary actions against Respondent's license. Accordingly, it is concluded that the appropriate penalty in the instant case is a $500 administrative fine and probation for one year.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Board enter a final order finding the Respondent guilty of the violations alleged in Counts I, II, and III of the administrative complaint and imposing an administrative fine of

$500. It is further recommended that the Respondent be placed on probation for a period of one year under such conditions as the Board deems appropriate to ensure that the Respondent does not engage in the design of structures requiring professional or engineering design expertise outside his knowledge and expertise as a general contractor.

DONE and ENTERED this 20th day of June, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

John Westberry, Esquire Suite 304, Rhodes Building

41 North Jefferson Street Pensacola, Florida 32501

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. James Linnan Executive Director Post Office Box 2

Jacksonville, Florida 32202

Docket for Case No: 82-003307

Orders for Case No: 82-003307