Judges: WILLIAM C. SHERRILL
Agency: Department of Business and Professional Regulation
Latest Update: Jul. 15, 1988
Summary: Respondent's construction license is suspended because of gross negligence in the contracting and failure to supervise the work of the qualifying agent.
87-2703STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2703
)
CHARLES R. BOYD, )
)
Respondent. )
)
RECOMMENDED ORDER
The formal administrative hearing in this case was held before William C. Sherrill, Jr., Hearing Officer, in Melbourne, Florida, on April 11, 1988, and on June 3, 1988. The issue in this case is whether the Respondent committed the violations alleged in the administrative complaint. The administrative complaint, as amended by motion filed March 10, 1988, alleges that the Respondent failed to discharge his supervisory responsibility as a qualifying agent and was guilty of gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting with respect to the construction of a residence in Brevard County in 1983 and 1984.
Appearing for the parties were: For Petitioner: David L. Swanson, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: James L. Reinman, Esquire
REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A.
1825 South Riverview Drive Melbourne, Florida 32901
The Petitioner presented 23 exhibits which were admitted into evidence, and the testimony of Debra J. Ciolli, Paul F. Holmlin, Mark Nasrallah, and Edwin H. Fletcher. The Respondent presented one exhibit which was admitted into evidence, and the testimony of David Menzel, David Lightholder, Bill Snyder, and Charles Boyd. There is no transcript. The parties submitted proposed findings of fact and conclusions of law. An appendix is included that contains an explanation for those proposed findings of fact that have been rejected.
FINDINGS OF FACT
The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company.
On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000.
The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction.
The Respondent designed the Ciolli home, and his draftsman prepared the plans.
During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder.
Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters.
The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a
deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose.
Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile.
The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper.
The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows.
The roof trusses, as installed, were inadequate:
A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a
combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.)
The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed.
One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails.
At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member.
Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches.
It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above.
As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application.
As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6.
The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house.
As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets.
Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind.
The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction).
Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The
Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed.
Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued.
On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000.
The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000.
The Respondent has not paid the Ciollis judgment.
The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies.
The Respondent was of the opinion that the defects discussed above were cosmetic.
The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects.
The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent.
The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from
$50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year.
The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed.
The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and the subject matter.
The Petitioner has proved the allegations of the administrative complaint, with the exception of the lintel beam allegation, by clear and convincing evidence.
The Respondent violated section 489.129(1)(m), Fla. Stat., in the construction of the Ciolli residence by gross negligence and incompetence in the practice of contracting.
The Respondent violated sections 489.105(4) and 489.119, and thus violated section 489.129(1)(j), Fla. Stat., by failing to adequately supervise the work on the Ciolli home as the qualifying agent.
The Construction Industry Licensing Board has authority to revoke or suspend the certificate of a contractor, or impose an administrative fine not to exceed $5,000, or place the contractor on probation, or reprimand or censure a contractor for a violation of section 489.129, Fla. Stat.
Rule 21E-17, Fla. Admin. Code, establishes guidelines for disciplinary penalties.
Rule 21E-17.001(19) provides that the normal penalty range for violation of section 489.129(1)(m) that has caused monetary harm, absent aggravating or mitigating circumstances, is a fine of from $500 to $1500 for a first violation.
Relevant to this case, rule 21E-17.002 provides that the following may be considered to be either in mitigation or aggravation of the penalty:
Monetary or other damage to the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty is to be assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.)
Actual job-site violations of building codes or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed.
The severity of the offense.
The danger to the public.
* * *
The length of time the licensee has practiced.
The actual damage, physical or otherwise, to the licensee's customer.
The deterrent effect of the penalty imposed.
The effect of the penalty upon the licensee's livelihood.
Most of the factors relevant to this case are in aggravation of the penalty. There was severe monetary damage to the customer. The customer was required to close on the house without having the defects corrected by the Respondent. The Respondent has not paid the $36,000 judgment and has not yet corrected the many problems with the Ciolli's residence. The roof leaks and the
house has been wet inside for four years. The Respondent has been in the practice of contracting for some time, so that factor is not mitigating. If anything, it is a factor in aggravation since the Respondent is actively engaged in contracting at the present time, and his competence in the practice of contracting is currently of great importance to a number of customers.
The only mitigating factor is the impact upon the Respondent's livelihood.
RECOMMENDATION
Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000.
DONE and ENTERED this 15th day of July, 1988.
WILLIAM C. SHERRILL, JR.
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703
The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties.
Findings of fact proposed by the Petitioner:
6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.
The allegation that the linoleum was peeling is not in the administrative complaint.
These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.
14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point.
14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through.
The degree of spalling of exterior stucco was not proven by clear and convincing evidence.
Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference.
14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.
This proposed finding of fact is not supported by clear and convincing evidence.
This proposed finding of fact is not supported by clear and convincing evidence.
21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing.
22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference.
Findings of fact proposed by the Respondent:
2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence.
5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic.
Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record.
The lack of hurricane anchors is a life safety defect.
The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound.
The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected.
COPIES FURNISHED:
David L. Swanson, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN
& GRAHAM, P.A.
1825 South Riverview Drive Melbourne, Florida 32901
William O'Neill, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Fred Seely, Executive Director Construction Industry Licensing
Board
Post Office Box 2 Jacksonville, Florida 32201
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 78033
DOAH CASE NO. 87-2703
CHARLES R. BOYD,
License No. CG C012754,
Respondent.
/
FINAL ORDER
THIS MATTER canoe before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)(9), Florida Statutes, on August 11, 1988, in Longboat Key, Florida for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Douglas A. Shropshire. The Respondent was present with counsel at the Board meeting.
Upon consideration of the hearing officer's Recommended Order, the exceptions filed, and the arguments of the parties and after a review of the record in this matter, the Board makes the following:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted in toto.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law are hereby approved and adopted in toto.
Respondent is guilty of violation Section 489.129(1), (j), (m), 489.105(4), and 489.119, Florida Statutes.
Respondent's exception to the hearing officer's Recommended Order enumerated as 3 in said document is accepted as a correct conclusion of law. An individual's length of time as contractor without incident is a mitigating circumstance as established by Chapter 12E-17, Florida Administrative Code.
All other exceptions filed by the Respondent not listed in paragraph "4" above are rejected as unsupported by the record and for those reasons specified at the board meeting.
The hearings officer's recommended penalty is rejected as in conflict with the adopted conclusions of law of the Board.
There is competent, substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent shall pay an administrative fine in the amount of two thousand five hundred dollars (2,500.00) to the Florida Construction Industry Licensing Board. Said fine shall be paid within one hundred twenty (120) days.
To assure payment of the fine, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for one hundred twenty (120) days. If the ordered fine is paid within that one hundred twenty (20) day period, the suspension imposed shall not take effect. Upon payment of the fine after the one hundred twenty (120) days, the suspension imposed shall be lifted. If the licensee does not pay the fine within said period, then immediately upon expiration of the stay, he shall surrender his licensure to the investigator of the Department of Professional Regulation or shall mail it to the Board offices.
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation, 130 N. Monroe Street, Tallahassee, Florida 32301, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty
(30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 21st day of September, 1988.
E. E. Simmons, Chairman
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to
Charles R. Boyd James L. Keinman
6947 N. Wickham Road 1825 S. Riverview Drive Melbourne, Florida 32940 Melbourne, Florida 32901
and by hand delivery/United States Mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 29th day of September, 1988.
F I L E D
Department of Professional Regulation Florida Construction Industry Licensing Board
Board Clerk
Clerk Date September 29, 1988
Docket for Case No: 87-002703
Orders for Case No: 87-002703
| Issue Date |
Document |
Summary |
|
Sep. 21, 1988 |
Agency Final Order
|
|
|
Jul. 15, 1988 |
Recommended Order
|
Respondent's construction license is suspended because of gross negligence in the contracting and failure to supervise the work of the qualifying agent.
|
