STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Construction )

Industry Licensing Board )

)

Petitioner, )

)

vs. ) CASE NO. 83-2535

)

IRA L. VARNUM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 13, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ira L. Varnum, pro se

Post Office Box 3100 Deland, Florida 32720

The issue for determination at the final hearing was whether the contractor's license of the Respondent should be suspended, revoked, or otherwise disciplined for allegedly failing to supervise construction undertaken by a business organization which he qualified, willfully violating the building codes of the City of Deerfield Beach, Florida, and practicing contracting in a grossly negligent or incompetent manner.

At the final hearing, Petitioner's Exhibits 1-3 an Respondent's Exhibit 1 were offered and admitted into evidence. Ira L. Varnum, Raymond Orsi, Alan A. Reese, Hector Vergara, James O. Power and Kenneth Koch testified for the Petitioner. Paul Gale testified for the Respondent.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced a final hearing, they were adopted and are reflected in this Recommended Order. To extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally,

proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. During 1981, a five-story, ninety-eight unit condominium was constructed in Deerfield Beach, Florida. This condominium was called the "Beach House". The prime contractor on the Beach House project was "Morelite Construction Company." The licensed general contractor who qualified Morelite Construction Company at the time of the Beach House project and who was closely involved with that job was Mr. Raymond Orsi. The engineer who designed the Beach House was Mr. Alan Reese.

   
   

2. Morelite Construction Company hired as a subcontractor "General Contractors of Florida, Incorporated," which firm was qualified by Respondent at the time of the Beach House project.

   
   

3. At the time of the Beach House project and final hearing in this case, Respondent was licensed as a contractor as alleged in the Administrative Complaint, was qualifying agent for General Contractors of Florida, Inc. (hereafter GCOF) and responsible for that firm's work.

   
   

4. GCOF was hired by Morelite as the "shell contractor." GCOF's contract called for GCOF to do all the concrete and masonry work in building the Beach House. GCOF was to build the structural shell of the building, leaving all plumbing, electrical, and finish work to be done by other parties. More specifically, GCOF was to construct all the plywood frames for the numerous concrete beams and columns for the Beach House, to assemble the steel reinforcing rods inside those forms, and then pour the concrete into the forms. The steel and concrete was supplied by Morelite. GCOF was also responsible for constructing the numerous concrete block walls throughout the condominium and pouring the concrete floors on each of the five levels of the condominium building. The floor joists and floor form work were done by other firms, and GCOF's responsibility was to pour concrete slabs on top of those joists and to assure proper thickness of the slabs.

   
   

5. GCOF's contract called for the firm to construct plywood forms for the various concrete beams and columns on the Beach House, to assemble inside those forms the steel in reinforcing rods, and to pour the concrete into the forms. The steel and concrete was supplied by Morelite, but all labor and know-how was supplied by GCOF. As admitted by Respondent, after removing the plywood forms on numerous beams that had been assembled and poured by GCOF, it was discovered that extensive honeycombing on the bottom of the beams had occurred. Irregular void and pitted areas at the bottom of the beams were found where there should have been solid concrete. It was apparent that the honeycombing was caused by the failure of the concrete to reach the bottom of the forms.

   
   

6. Although the Respondent asserted that the honeycombing was caused by an improper concrete mix which was supplied to him, slump tests performed by an independent testing laboratory from concrete as it as being delivered and used by Respondent, show that the concrete Respondent was using was in the range that would be required to properly form the beams.

   
   

7. Acceptable construction practice calls for a contractor doing concrete work such as Respondent's firm to repair honeycombing within several days of removing the plywood forms in order to minimize rusting of reinforcing steel.

   The honeycombing was obvious to the naked eye and with a minimal degree at supervision by GCOF, it would have been immediately corrected.

   
   

8. The honeycombing occurred because of Respondent's failure to sufficiently "vibrate" the concrete during the pour. Concrete is vibrated by placing a rapidly vibrating cylinder in the concrete as it is being poured into the form. The vibration tends to cause the crushed aggregate in the concrete to work its way around obstacles such as reinforcing bars and down to the bottom of the form. The honeycombing problem on this project was approximately ten times worse than would normally be expected on similar jobs of similar design and complexity. Ten percent of the concrete on this job was effected with honeycombing, whereas, normally only one percent of the concrete is affected. These voids and honeycombs constitute a violation of Section 2506.4 and 2506.6 of the South Florida Building Code which was in effect in Broward County, where the Beach House is located, when the project was being built.

   
   

9. The Respondent received some off-color defectively mixed concrete and for one day concrete delivery was prematurely stopped. However, this occurrence was limited to one or two particular beams, and in any event did not involve the honeycombing problems, unfilled wall cell problems, or other problems alleged in the Administrative Complaint.

   
   

10. GCOF's contract called for GCOF to place reinforcing steel in the concrete block walls throughout the project at a spacing of approximately four feet, and then to fill each such cell with concrete. Concrete block walls divided the condominium apartments from one another, and also constituted the exterior walls of the condominium building. The concrete block walls rested on the poured concrete beams for each floor. The walls were of the common variety of concrete blocks commonly seem throughout South Florida. Each such block contains holes or cells. The design called for having, approximately every four feet, a vertical series of blocks in which tee-holes were vertically aligned with one another from top to bottom of the wall. A long piece of reinforcing steel bar was then placed in the vertical series of block cells and the entire vertical series of cells was filled with solid concrete poured from above.

    There was a failure, however, to comply with the requirement concerning these reinforced masonry cells. On a typical section of this job, approximately 30 or more such vertical cells could be expected to be unfilled. In the same typical section of a comparable job where solid construction practices were being observed, approximately four or five cells could be expected to be unfilled.

    The cell problem on this project, as stated by one expert, was "grossly out of line."

    
    

11. Moreover, in numerous cases the "cleanout holes," which were required by contract, were not present. There was a significant occurrence of instances in which reinforcing steel was not placed in the cells as required. The failure to fill the cells constituted a violation of Section 2704.10(d) of the Broward County Building Code in force when the Beach House was built.

    
    

12. The honeycombing and unfilled cell errors occurred in GCOF's work over the course of approximately five months during which several floors of the building were being built and were seen throughout all three floors of the structure.

    
    

13. GCOF's contract required that firm to pour the cement for each floor built. The concrete slabs should have been three inches thick, but varied in thickness from 1.75 inches to five and a half inches. It was Respondent's assertion that this variation was caused by a bow in the "Hambro" joists that

    were used on the Beach House. The "Hambro" joists refers to joists manufactured by the Hambro Company. Each joist has built into it a slight upward bow. The joists are supported an each end of the poured concrete beams. The joists are then covered with forms, and concrete is poured over the forms to constitute the floor of each level of the building. The weight of the concrete presses the bow out of the Hambro joist. It was Respondent's assertion that the thickness variation was caused by a design error in that the concrete weight was insufficient to press out the bow. Thus, Respondent asserted that the pattern of variation in thickness was that the concrete slabs were thickest at each side corresponding to the ends of the Hambro joists, and grew steadily thinner toward the center of the slab, where the joist bow brought the joist and subflooring to their highest point. However, field observations demonstrated that the thickness variations occurred randomly about the slabs as seen through the numerous plumbing holes routinely cut through the slabs. There was no pattern of the slabs being thinnest down their center lines. The variation in slab thickness was excessive as compared to acceptable practice in the industry, and deviated from what could be expected to be found on a similar job. The slabs were at times half as thick as required, and at other points they were twice as thick as required. These variations constitute violations of Broward County Building Code Sections 301.1, 301.2 and 301.4, in force when the Beach House was built.

    
    

14. GCOF's duties on the job included placing certain corner steel. The corner steel was made of pieces of reinforcing steel rod, bent in an "L" shape, and placed in the beam forms at each corner of the building before any of the corner beams were poured with concrete. Their purpose was to tie the walls together where they met at 90-degree corners. The corner steel was required by the engineer's drawings and notes, and personnel of GCOF should have noted the requirement for placing said steel. None of the corner steel was placed as required. The absence of the corner steel was noted by other parties when the Beach House was approximately one-third complete. That entire one-third of the job had been done without placing any of the corner steel bars as required. The omission of the corner steel was a serious safety hazard and a violation of the Broward County Building Code Sections 302.1(e), 302.2 and 302.4.

    
    

15. Voids in concrete columns existed underneath the beams on the project in at least two places. These vertical columns, which were formed, reinforced, and poured by GCOF were on the lower floor, and across their top ran an important horizontal beam. Upon inspection, it was noted that at the top of each column, which was designed to support the horizontal beam, the concrete had significant voids or empty spots. As a result, the load capacity of the columns was seriously weakened. These voids were critical and severely affected the structural integrity of the building. It was shown that they were visible to the naked eye and were of such a key nature that experienced construction personnel should have noted the problem immediately. Nevertheless, GCOF had removed the forms and had said nothing about the problem, allowing work to go on above without correction, adding another floor on top of the defective columns. When the problem was discovered an immediate temporary shoring all around the affected columns was ordered by the project engineer until repairs could be made. These voids constituted a violation of Broward County Building Code Section 2506.4.

    
    

16. On July 22, 1981, the Deerfield Beach Building Department, which had jurisdiction of the Beach House job issued a stop work order on the project. The causes of the stop work order were the same deficiencies alleged in the

    Administrative Complaint, and described above. A series of meetings between the building department design engineer, the prime contractor, the owner and GCOF,

    concerning necessary remedial work was necessary. Certain repairs were done, and on August 7, 1981, the building department allowed work to resume. In July of 1981, Morelite Construction Company fired GCOF from the job due to dissatisfaction with the quality of GCOF's work.

    
    

17. GCOF entered into its contract for the Beach House job on March 19, 1981, began work in March, and had been on the job approximately five months prior to being fired.

    
    

18. The competency of GCOF's personnel on the job and the quality of supervision provided by Respondent and Respondent's personnel were constant problems throughout the job, and this was repeatedly brought to Respondent's personal attention. After the building department issued its stop work order, a series of meetings were held between the building department, the owners, the general contractor, Mr. Reese, and representatives of GCOF concerning necessary remedial work. Respondent did not attend any of those meetings, despite the fact that it was GCOF's work that was in issue. During the five months that Hector Vergara, the project engineer, inspected GCOF's steel placement, he never saw Respondent in the building. It was the Respondent's standard procedure to check on the job by stopping his car outside the site end asking an employee via mobile radio how the job was going. On occasion, Respondent would go to the construction shack on the job, but never ventured into the project.

    
    

19. The failure to reinforce the masonry block walls resulted from insufficient supervision by GCOF on the job. GCOF never inspected the placement of steel reinforcing prior to the engineer' inspection. The problems cited in the Administrative Complaint were caused by a lack of supervision by the workmen of GCOF.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject of this proceeding. Section 120.57(1), Florida Statutes.

    
    

21. The Respondent Varnum is charged with violating Sections 489.129(1)(d), 489.129(1)(j) and 489.129(1)(m), Florida Statutes, by willfully or deliberately disregarding and violating local building codes, failing to supervise construction undertaken by a business organization which he qualified, and continued gross negligence, incompetency or misconduct in the practice of contracting.

23. The Petitioner demonstrated by clear and convincing evidence that the Respondent Varnum failed to adequately supervise construction undertaken by a business organization which he qualified and a result of his failure to supervise, numerous avoidable problems occurred on the Beach House project. See Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982). The Petitioner failed to show by clear and convincing evidence that the Respondent intentionally violated local building codes or was guilty of a continued course of gross negligence or incompetence in the practice of contracting.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for six months.

DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida.

SHARYN L. SMITH

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 30th day of March, 1984.

COPIES FURNISHED:

Ira L. Varnum

Post Office Box 3100 Deland, Florida 32720

Douglas A. Shropshire, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Linnan, Executive Director Construction Industry Licensing

Board

Post Office Box 2 Jacksonville, Florida 32202

Frederick M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 23917

DOAH CASE NO. 83-2535

IRA L. VARNUM

Post Office Box 4011

Fort Lauderdale, Florida 33304

Respondent.

/

FINAL ORDER

Respondent, Ira L. Varnum, holds Florida license Numbers CG C000832 and CG CA00832 as a certified general contractor. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the license.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Board pursuant to 120.57(1), F.S.; it is attached to and made a part of this Order.

The Construction Industry Licensing Board met on July 12, 1984, in Fort Lauderdale, Florida, to take final agency action. The Petitioner was represented by Douglas Shropshire, Esquire The Respondent was not present nor represented. The Board has reviewed the entire record in the case.

The Board adopts the Findings of Fact and Conclusions of Law of the Recommended Order.

The Board imposes a more appropriate penalty, based on the following factors drawn from the review of the record:

The Respondent failed to even leave his car to supervise the work for which he was responsible. This could have led to the collapse of the building, and did lead to great financial damage to the general contractor.

After discovery of the problems, Respondent was uncooperative and acted in bad faith; he refused to make repairs.

Respondent's licenses are hereby REVOKED. He shall pay a fine of $1000.00 within 30 days.

Within thirty days the Respondent shall return his licenses to the Board Office, Post Office Box 2, Jacksonville, Florida 32201, or shall surrender the licenses to an investigator of the Department of Professional Regulation.

DONE AND ORDERED in Jacksonville, Florida, this 23rd day of July, 1984.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

DONALD STOBS, Chairman

FILED

Department of Professional Regulation Florida Construction Industry Licensing Board

BOARD CLERK

CLERK DATE

REMIT FINE TO:

Executive Director, F.C.I.L.B. Post Office Box 2 Jacksonville, Florida 32201

Docket for Case No: 83-002535

Orders for Case No: 83-002535