DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
vs. ) CASE NO. 89-0765
GERALD L. BIDLOFSKY, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 13, 1990, in Miami, Florida.
For Petitioner: Jan L. Darlow, Esquire
Oscar E. Marrero, Esquire Adorno & Zeder, P.A.
For Respondent: Robert S. Cohen, Esquire
Haben & Culpepper, P.A.
P.O. Box 10095 Tallahassee, Florida 32302
Whether Respondent committed the offenses set forth in Count I of the Administrative Complaint and, if so, the penalties which should be imposed.
Respondent is licensed by Petitioner as a general contractor in the State of Florida and is the qualifying agent for Bilo Homes, Inc., a corporation engaged in the State of Florida in the business of general contracting.
Petitioner is the state agency charged with the duty of regulating general contractors in the State of Florida.
On November 23, 1988, Petitioner filed an Administrative Complaint against Respondent which included five counts. On April 11, 1989, Petitioner filed an Amended Administrative Complaint against Respondent which also contained five counts. Following extensive settlement negotiations, the parties settled Counts II-V of the Amended Administrative Complaint, and jurisdiction over those counts was relinquished to the referring agency for final disposition.
On April 13, 1990, a formal hearing was held as to Count I of the Amended Administrative Complaint. This count charged Respondent with having committed multiple violations of the laws regulating the business of general contracting in the State of Florida during the course of his dealings with Mr. and Mrs.
Donald Huston.
At the final hearing, Petitioner presented six witnesses and introduced the deposition testimony of a seventh witness. One of Petitioner's witnesses, Dr.
Leroy Thompson, was accepted as an expert witness in the field of civil engineering. Petitioner also presented 25 documentary exhibits which were accepted into evidence. Respondent testified on his own behalf and presented the testimony of Mr. Abe Borujerdi, who was accepted as an expert in the fields of structural engineering, general contracting, and roofing contracting.
Respondent offered no documentary evidence.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Specific rulings on the parties' proposed findings may be found in the appendix to this recommended order.
At all times pertinent to these proceedings, Respondent was licensed by Petitioner as a certified general contractor in the State of Florida and held license number CG- C016730.
At all times pertinent to these proceedings, Respondent was the qualifying agent for Bilo Homes, Inc. (Bilo), a corporation engaged in Florida in the business of general contracting with its principal place of business in Miami, Florida.
At all times pertinent to these proceedings, Mr. and Mrs. Donald Huston resided at 29843 S.W. 149th court, Leisure City, Florida.
On February 24, 1988, the Hustons contracted with Bilo to build an addition to their house for the sum of $20,000 pursuant to plans and specifications that had been prepared by an architect. The Hustons' existing house was valued between $30,000-$40,000. The contract called for a one-story room addition to be built on a concrete slab with stucco exterior and sheet rock interior. The addition was to have a sliding glass door and was to be connected to the existing structure by a tie beam. The roof of the existing house was to be reshingled to match the shingles on the addition. The project also involved electrical work and plumbing work. The contract was signed on Wednesday, February 24, 1988, and work began on Friday, February 26, 1988. The contract did not specify a time for the completion of the project.
The following draw schedule was agreed to by the Hustons and Bilo:
20% of the contract price upon the acceptance of the contract by the Hustons;
10% of the contract price upon the pouring of the concrete slab;
10% of the contract price upon ice completion of the tie beam:
20% of the contract price upon the drying in of the roof;
10% of the contract price upon the completion of the rough mechanical work;
10% of the contract price upon ice completion of the shingling of the roof;
10% of the contract price upon the installation of the plumbing fixtures;;
10% of the contract price (the balance) upon completion of the job.
The Hustons made payments to Bilo in the total amount of $14,000.00. These payments were broken down as follows: $4,000.00 paid on February 24, 1988, upon acceptance of the contract; $2,000.00 paid on March 22, 1988, upon the pouring of the concrete slab; $2,000.00 paid on April 5, 1988, upon the completion of the tie beam; $4,000.00 paid on April 18, 1988, upon the drying in of the roof; and $2,000.00 paid on June 25, 1988, upon the completion of the shingling of the roof.
Before June 25, 1988, Respondent had asked the Hustons for the draw due upon completion of the rough mechanical work in addition to the draw due upon completion of the shingling. The Hustons refused to pay both draws because they were dissatisfied with the quality of Bilo's work. The Hustons engaged the services of a lawyer and, on June 29, 1988, presented Respondent with a list of items they wanted corrected before paying the draw for the rough mechanical work. Respondent and the Hustons disagreed as to when the items on the list should be corrected. Respondent contended that the items could have been corrected as part of the punch list prior to the final payment. The Hustons contended that the items should be corrected before Respondent received any further draws. This dispute is resolved by finding that while several of the items on the list could have been corrected as part of the final punch list, there were items on the list that should have been corrected by Respondent before he proceeded. Considering the very poor quality of work that went into this job, the Hustons were justified in their demand that Respondent make these corrections before receiving an additional draw. Respondent contends that the Hustons did not pay the draw for the rough mechanical work because they ran out of money. This contention is rejected as being contrary to the greater weight of the evidence.
After the Hustons presented Respondent with the list and refused to pay the draw for the rough mechanical work, Bilo stopped work on the project. Bilo performed no work on the project after June 29, 1988.
Prior to the work stoppage, Respondent hired K & H Plumbing as the subcontractors to the plumbing work on the Huston job. K & H Plumbing's work failed to pass a Metro Dade County tub and water pipe inspection because the work did not meet the South Florida Building Code. K & H never completed its work on the Huston addition and no final inspection of its work was approved. K & H Plumbing filed suit against the Hustons for the unpaid portion of their contract with Bilo. In addition, K & H Plumbing failed to properly replace wood decking which it had pulled up during the course of its work on the Huston job. Respondent had received funds which1 should have been used to pay K & H.
Prior to the work stoppage, Respondent hired Tom Mentelos to perform the electrical subcontracting work on the Huston addition. The work performed,
by Mentelos was substandard. His work failed to pass inspection by the Metro Dade County Building and Zoning Department on six different occasions. In addition to this substandard work, one of Mentelos' employees cracked the Huston's kitchen ceiling while working in the attic over the existing portion of the house. This crack was never corrected by Mentelos or by Bilo. Mentelos never completed his work on the Huston addition, although he was never fired by the Hustons. Mentelos filed a claim of lien against the Hustons in he amount of
$2,000.00. The first claim of lien was released and Mentelos filed a second claim of lien against the Hustons in the amount of $2,623.00. Respondent had received funds which should have been used to pay Mentelos.
Respondent obtained the roofing permit to build the new roof on the Huston addition and to reroof the existing roof. The roofing work involved a process commonly referred to as "hot mopping", a process which requires the services of a licensed roofing contractor. Respondent exceeded the scope of his licensure by engaging in hot mopping.
Bilo's employees punched two unnecessary vent pipes through the roof and placed a flat piece of PVC material around the vent holes to keep the, roof from leaking. This is an improper and unacceptable construction practice.
Bilo's employees damaged the existing screen porch while working on the roof. The metal flashing which connected the existing roof to the aluminum screen porch was taken off but was never replaced. As a result, the screen porch leaked, a problem that had not been corrected as of the time of the final hearing.
While Bilo's employees were working on the roof of the existing structure, a rainstorm occurred which resulted in water stains to the ceiling of the Hustons' main structure. The workmen were not supervised by Respondent and were unprepared for the rain. Other than the water stains, no damage was done to the ceiling. To repair the ceiling stains would require a chemical coating, followed by repainting of the ceiling. The cost of the repair would be approximately $75.00.
Bilo engaged in poor construction practice in constructing the exterior wall by facing the poorer grade side of the exterior plywood toward the outside as opposed to inside. The better construction practice is to place the poorer grade side toward the inside where it will not be exposed to view.
There is a gap in the area where the metal flashing comes down the exterior side of the end gable and meets the top of the roof. In the work performed by Bilo, the piece of sheathing was above the bottom of the sill plate which caused a gap from one inch to five inches over a distance between eight and ten feet. This gap is a source of potential leaks. Bilo attempted to cover the v-notch in the area of the gag with tar pitch in an attempt to correct this deficiency. Both the gap and the attempted repair are unacceptable construction practices.
Bilo had not cut vents in the soffits at the time it stopped work on the project. Without vent holes in the soffits, the job would have not passed inspection. Bilo could have, at little expense, cut the soffit vents at a later point in the job.
The end member of the frame for the partition wall between the laundry room and the masonry wall is not pressure- treated wood. The South Florida Building Code requires that the wood used for the end member of such
construction be pressure treated or that there be a barrier between the end member and the adjoining wall. Here, Bilo failed to exercise either acceptable option, and, consequently performed work that failed to comport with acceptable construction practices and did not meet code.
The manner in which Bilo supported the timber girder that supports the roof trusses fails to meet code because the tie beam, into which this girder is pocketed for support, is improperly supported. A hole was knocked in the cement block wall that supported the tie beam when a plumbing vent was redirected. As a result of this hole, the tie beam rests on only approximately two inches of concrete, which is inadequate to support the tie beam and the timber girder. This work fails to comport with acceptable construction practices.
Bilo failed to brace the roof trusses as required by the plans and specifications of the architect. This is an unacceptable construction practiced.
Bilo cut into the roof truss without authority from the truss manufacturer or from a qualified engineer. Cutting into a truss can impair its structural integrity and is a violation of code. Respondent maintained at hearing that he would have been able to get approval from the truss manufacturer for the modification of the truss caused by the cut. Respondent did not have such approval as of the time of the final hearing, and there was no evidence, other than his unilateral expectation, to support this contention.
The facia board on the eaves did not join properly because Bilo's workmen did not take the time to properly cut the boards with the aid of a square. Although this is a matter that could be corrected for approximately
$25.00, this work, along with the other deficiencies detailed herein, demonstrates the substandard work that went into this project and establishes that Bilo failed to provide its workmen adequate supervision or adequate training.
At hearing, there was a dispute as to how much time Respondent personally spent at the Huston job site. This conflict is resolved by finding that Respondent was personally on the job site for at least 30 minutes on days when work was progressing. When major items were being performed on the job, he spent more time on the job site. When minor work was being done, Respondent did not go to the job site on a daily basis. Regardless of the number of minutes or hours that Respondent spent on the job site, the conclusion is inescapable that Respondent failed to properly supervise his workmen in light of the low level of skill the workmen exhibited throughout the job.
Respondent had the responsibility as the general contractor to properly supervise his workmen and his subcontractors. He failed to perform that responsibility.
As of the final hearing, the Huston addition remained uncompleted. At the time of the work stoppage, it would have cost the Hustons more than $6,600 to complete the job, the difference between the contract price and the amount that the Hustons had paid Respondent. The evidence was clear that the Hustons had incurred damages as a result of their dealings with Respondent. The amount of those damages were not established with any degree of certainty.
On or about July 15, 1988, Respondent filed a claim of lien against the Hustons' property claiming that Bilo was owed $8,350 for the work that had been done.
Respondent has been a certified general contractor for fifteen years and has been certified as a general contractor in the State of Florida since 1980. Respondent's licensure had not been disciplined prior to the filing of the Administrative Complaint in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 489.129(1), Florida Statutes, provides, in pertinent part, as follows:
(1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor, require financial restitution to a consumer, impose an administrative fine not to exceed
$5,000, place a contractor on probation, require continuing education, assess costs associated with investigation and prosecution, or reprimand or censure a contractor if the contractor, or if the business organization for which the contractor is a primary qualifying agent or is a secondary qualifying agent responsible under S. 489.1195, is found guilty of any of the following acts:
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Committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Financial mismanagement or misconduct occurs when:
Valid liens have been recorded against the property of a contractor's customer for supplies or services ordered by the contractor for the customer's job; the contractor has received funds from the customer to pay for the supplies or services; and the contractor has not had the liens removed from the property, by payment or by bond, within 30 days after the date of such liens.
The contractor has abandoned a customer's job and the percentage of completion is less that the percentage of the total contract price paid to the contractor as of the time of abandonment, unless the contractor is
entitled to retain such funds under the terms of the contract or refunds the excess funds within 30 days after the date the job is abandoned.
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Failing in any material respect to comply with the provisions of this part.
Abandoning a construction project in which the contractor is engaged or under contract as a A
project is to be considered abandoned after 90 days if the contractor terminates the project without notification to the prospective owner and without just cause.
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(m) Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Petitioner has the burden of proving by clear and convincing evidence that the Respondent committed the acts alleged in the administrative complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1989).
Petitioner established by clear and convincing evidence that Respondent exceeded the scope of his licensure by performing hot mopping work on the Hustons' roof in violation of Sections 489.115(1)(b), 489.117(2), and
489.113 (3), Florida Statutes. The violation of these provisions established Respondent's violation of Section 489.129(1)(j), Florida Statutes.
Petitioner established by clear and convincing evidence that Respondent failed to properly supervise his workmen or his subcontractors which resulted in very poor workmanship on the job. The failure to supervise constituted misconduct within the meaning of Section 489.129(1)(m), Florida Statutes, and is a violation of the provisions of that statute.
Petitioner established by clear and convincing evidence that Respondent engaged in financial mismanagement during the course of his dealings with the Hustons which caused financial harm to his customers in violation of Section 489.129(1)(h), Florida Statutes. This violation was established by liens and lawsuits being filed against the Hustons and their property by the subcontractors and by Bilo.
Petitioner failed to establish by clear and convincing evidence that Respondent abandoned the Huston project. The record is clear that Respondent terminated his work on the contract at the end of June 1988. However, Respondent notified the Hustons that Bilo would not complete the work, and the reason for its decision not to complete the work was that a legitimate dispute developed as to Bilo's entitlement to a draw. The facts of this case do not meet the definition of abandonment contained in Section 489.129(1)(m), Florida Statutes.
Rule 21E-17.001, Florida Administrative Code, provides, in pertinent part, as follows:
Normal Penalty Ranges. The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter.
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(3) 489 117, 489.11:3: Contracting beyond the scope of license, no safety hazard. First violation, letter of guidance; repeat violation, $250 to $750 fine.
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(10) 489.129(1)(h): Diversion of funds. First violation, $750 to $1500 fine; repeat violation, revocation.
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(19) 489.129(1)(m): Gross negligence, incompetence, and / 1or misconduct, fraud or deceit.
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(b) Causing monetary or other harm
to licensee's customer, or physical harm to any person. First violation, $500 to
$1500 fine; repeat violation, $1000 to
$5000 and suspension or revocation.
Rule 21E-17.002, Florida Administrative Code, provides, in pertinent part, as follows:
Circumstances which may be considered for the purposes of mitigation or aggravation of penalties shall include, but are not limited to the following:
monetary or other damage to the licensee's customer in any way associated with the violations which damage licensee has not relieved at the time the penalty is to be assessed ...
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;
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the actual damage, physical or otherwise to the licensee's customer;
the deterrent effect of the penalty imposed;
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any effort at rehabilitation;
all other mitigating or aggravating circumstances.
The aggravating factors presented by this case justify deviation from the normal-range of penalties. The aggravating factors include the substantial damages suffered by the Hustons and the job-site violations of building codes that must be corrected before the Hustons will be able to finish the addition. The Hustons have lived-with a partially completed addition since June 1988, they have had to contend with lawsuits and liens being filed against them and their property, and they have been forced to employ the services of an engineer and an attorney. Respondent has shown very little regard for his customer or for his duties as a general contractor.
While the evidence clearly established that the Hustons suffered monetary damages as a result of their dealing with Bilo, the amount of those damages were not clearly established. Consequently, it is inappropriate to order restitution as a part of the penalty to be imposed.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of
having violated the provisions of Section 489.129(1)(h), (j), and (m), Florida Statutes, which imposes administrative fines in the amount of total amount of
$5,000 for such violations, and which suspends his licensure as a general contractor for a period of six months.
DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1990.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0765
The following rulings are made on the proposed findings of fact submitted by Petitioner:
The following rulings are made on the proposed findings of fact submitted by Respondent:
regory A. Victor, Esquire 3225 Aviation Avenue
Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, Florida 32302
Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Kenneth E. Easley, Esquire Department of Professional
