STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NOS. 89-2954
) 89-4709
)
ROBERT L. FOUNTAIN, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for final hearing before, P. Michael Ruff, duly assigned Hearing Officer, on April 4 and 5, 1990, and May 9, 10, 15,
16, 17, 18, 22, and 25, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert D. Newell, Jr., Esq.
NEWELL & STAHL, P.A.
817 North Gadsden Street Tallahassee, Florida 32303-6313
For Respondent: Robert L. Fountain, Jr., Pro Se
2124 Shady Oak Drive Tallahassee, Florida 32303
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Respondent has committed violations of Section 489.129(1)(m), Florida Statutes, by committing fraud, gross negligence, incompetency and misconduct in the practice of contracting, and whether he has violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating applicable building codes with regard to the construction of two residences or additions thereto in Tallahassee, Florida.
PRELIMINARY STATEMENT
This cause arose upon the filing of two Administrative Complaints, an Amended Complaint, and, by letter, an additional notice to the Respondent, by way of more definite statement of the issues to be litigated within the ambit of the statutory charges in the complaints referenced above. The Respondent had in excess of four months to prepare a defense to the additional factual allegations of that letter from Petitioner's counsel. The charges concern alleged deficiencies in the construction of two residences as alleged in detail in these pleadings. See Sections 489.119, 489.105(4) and 489.129(1)(h) and (m), Florida Statutes.
The hearing was conducted as noticed. The Petitioner and Respondent presented numerous witnesses and exhibits over the course of the ten-day hearing. The exhibits admitted into evidence are reflected in the certified transcript of the proceedings.
At the conclusion of the hearings, the parties elected to have the proceedings transcribed and requested an extended briefing schedule. That schedule was enlarged by agreement of the parties. Proposed Recommended Orders were ultimately timely filed by the parties and have been considered. The specific rulings on the proposed findings of fact submitted by the parties are contained in the Appendix attached hereto and incorporated by reference herein, in addition to being treated in the body of this Recommended Order.
FINDINGS OF FACT
The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, and related rules, which provisions regulate the admission to licensure and the licensure status of certified building contractors, impose standards for the practice of building contracting and provide a means for enforcement of these practice standards by disciplinary proceedings such as this one.
The Respondent is a citizen of the State of Florida and is a certified building contractor. He is the qualifying agent for Fountaincrest Builders.. He holds license no. CBC022113. The Respondent had built a substantial number of residences in Tallahassee and Leon County, Florida, in the years in which he has practiced contracting in Leon County.
On December 23, 1988, Dr. Ronald Reeves purchased a home in the High Grove subdivision located at 4770 Lancashure Lane, Tallahassee, Florida. The home had been built by the Respondent and Fountaincrest Builders, and Dr. Reeves purchased the home from the Respondent.
Dr. Reeves was apparently satisfied with the quality and type of construction in the existing home which he purchased. However, he decided to construct an addition to that home. He desired to construct the addition on the end of the house encompassing the garage (the south end), in order to have room for an upstairs playroom, additional bathrooms, an office and library area, and to continue to have garage space. Dr. Reeves is a medical doctor, who operates a consulting business, using a portion of his residence as his office and work area. Accordingly, in early January of 1989, he consulted with Mr. Fountain about the possibility of constructing an addition to the home for this purpose. On January 23, 1989, he contracted with the Respondent and Fountaincrest Builders for the construction of the addition. He believed that the Respondent could best accomplish an appropriate blending of the structure and appearance of the addition with the existing house since he was the original building contractor, who constructed the house and would be most familiar with all construction details related to it and to the addition. In fact, his decision to buy the existing house was influenced by his desire to build an addition to integrate structurally and visibly with the existing house, so that the fact that the addition had been built at a later time would not be readily apparent. The Respondent assured him that he could structurally and aesthetically blend the addition with the existing house in an appropriate and pleasing manner.
The parties agreed to a contract price of $40,666.00. Construction was commenced and carried through to completion, although not to the satisfaction of
the owner. Dr. Reeves ultimately paid approximately $36,000.00 of the agreed- upon contract price before frequent and increasingly heated disagreements between Dr. Reeves and the Respondent culminated in the termination of the contract and the Respondent leaving the job.
The construction agreed upon consisted of an enclosure of the existing garage to create an office, study and library area with a half bathroom, as well as adding a three-car garage with a staircase and a recreation room and half bathroom on the upstairs level. The contract provided and the Respondent verbally agreed that all work would be performed to the same quality and standards as that prevailing in the existing home to which the addition was to be added.
Dr. Reeves and the Respondent discussed Dr.
Reeves' desires and requirements for the addition, including the bathroom, study, garage, staircase, recreation room, etc.; and Dr. Reeves thereby indicated to the Respondent the general physical nature and description of the construction he wanted done. The Respondent then selected a draftsman and had the draftsman draw plans for the addition. Prevailing standards for the practice of building contracting in Florida and in Leon County require that a building contractor, who obtains the plans, should be responsible for verifying the measurements to insure that the drawings correctly account for and depict the existing construction and the proposed construction to be added to it.
Verifying the measurements in this context means that the contractor should check all dimensions before construction begins to insure that the new construction depicted on the plans, including its junction with the existing building, will fit and match the existing building, both as to dimensions and type and size of materials used, as well as verifying the dimensions depicted on the plans with the actual layout of the proposed construction in the field.
This helps to insure that all elements depicted on the plans, materials used and finished components of the construction will appropriately fit within the dimensions depicted on the plans and that those dimensions will ensure appropriate mating of the new construction with the old. The plans obtained by the Respondent contained the following caveat from the draftsman:
While every attempt has been made in the preparation of this plan to avoid mistakes, the maker cannot guarantee against human error. The contractor on the job must check all dimensions and other details and be responsible for same.
The Respondent obtained the building permit for the additional construction on January 24, 1989 and construction commenced shortly thereafter. Construction had commenced before the Respondent ever advised the owner that certain problems existed regarding differences between the dimensions depicted on the plans and the actual field rendering of those same elements of the construction. During the course of construction, Dr. Reeves perceived certain deficiencies and discussed them on a repeated basis with the Respondent. These deficiencies and the discussions concerning them, which became more and more heated, culminated in Dr. Reeves' sending the Respondent a registered letter on May 9, 1989 identifying the deficiencies which ultimately were the basis for the charges in the complaints.
In Leon County, all structures constructed pursuant to a building permit must comply with the Standard Building Code; and all such structures must have a building permit issued before construction can commence. It is the
builder's responsibility to be familiar with that building code and to apply it correctly to each phase of construction. The code applicable to this construction and proceeding is that contained in the Standard Building Code, 1935 Edition, with 1986 and 1987 Revisions ("SBC"). This code and its predecessor versions have prevailed in Leon County for the past 16 years.
The Respondent had assured Dr. Reeves that the exterior appearance of the proposed addition would aesthetically blend with the existing house so that the junction of the addition with the existing house would not be noticeable. In fact, however, the brick on the front elevation or face of the Reeves' home, facing the street and front yard, does not properly blend with the brick of the existing home at the point where the addition joins the existing home.'
Although brick of a matching size, shape and color was used in the addition, the new brick does not correctly align and blend with the old brick. After the brick work was already in place, the Respondent represented to Dr. Reeves that the blending was, in his opinion, of good quality and about the best obtainable from masons and contractors in the trade in the Leon County area. In fact, however, `the existing masonry work is substandard. The joint thicknesses vary beyond acceptable limits and the brick was not correctly "keyed in" or overlapped with existing brick courses from the existing house corner and thus does not achieve minimum standards of masonry construction prevailing in Leon County and in Tallahassee. In fact, at one point, in a noticeable area near the ground, at the junction of the old and new brick veneer walls, bricks are cut or broken and the old half brick is joined to the new half brick with a mortar joint rather than whole old bricks and whole new bricks being correctly overlapped or "keyed in". Thus, even if the Respondent intended that the blending of the brick would be of good quality and would not be readily noticeable, the execution of the masonry work was not actually carried out in that manner.
The plans as originally procured by the Respondent from the draftsman depicted a garage window on the front of the addition to the home at the same level as the existing windows in the home itself. That window was depicted on the original plans as a square window. The plans contain a notation by Dr. Reeves', questioning why the window was square instead of matching the existing windows of the house in shape, which were large palladian windows (having arched openings). Because Dr. Reeves wanted the palladian window, the plans were taken back to the draftsman for revision. When the draftsman revised the plans, he indicated to the Respondent that the palladian window would cause a problem because it was higher than the square window originally depicted on the plans and, therefore, would project up into the space required for the window "header". The header is a top plate or structural component designed to span the top of a window opening at the top of a wall and which, in this case, is required to support part of the load or weight of the upstairs floor and roof assembly. The plans were nonetheless changed to include the palladian window, and the Respondent obtained the plan showing the palladian window in the garage wall, rather than the square window, prior to commencing construction. In order to fit the palladian window in the wall and still have room for a header over the window opening upon which to support the upstairs floor and roof components overlying the top of the window opening, it became necessary to frame the window in such a way that the finished window would ultimately project approximately one foot lower or closer to the ground or grade level than the existing windows in the home, which is readily apparent when viewing the front elevation.
The Respondent did not inform Dr. Reeves that the window would be approximately one foot lower than the existing windows in the home until well after construction had commenced and, indeed, the window was already framed into
the wall. Dr. Reeves did not actually approve of this difference in window elevations. He felt compelled to accept it since at that stage of construction, it was the only practical solution to the problem created by there being insufficient space in the wall to accommodate the palladian window if installed at the level of the existing palladian windows in the home. Although it is true that Dr. Reeves insisted on the change from the square configured window to the palladian window, the fact that the window was ultimately installed at a lower level than existing windows and is thus aesthetically undesirable due to its misalignment with existing windows was due to the Respondent's failure to verify the measurements of the plans and their depiction of the window with the dimensions necessary to the correct framing of that wall. This resulted in insufficient space required for the header or support beam system spanning the window opening necessary to support the overlying second floor and roof elements of the construction. The relatively incurable nature of the problem also resulted, in substantial part, from the Respondent's failure to advise the owner of the dimension problem created by the window configuration change before construction began and had progressed to the point that proper alignment of the window and proper window configuration could no longer be effected.
It was the Respondent's duty to reconcile all discrepancies in the existing measurements in the plans for the permitted addition before the work commenced and to disclose in a timely fashion any deviations from those plans to the owner in order to effect the owner's consent or agreement on any further changes or corrections.
The plan for the upstairs playroom area of the addition depicted that a bathroom or half bathroom was to be located at the southern end of the addition above the entrance to the new garage area in the southwest corner of the upstairs playroom area. The plans depicted a double window in the south wall of the upstairs playroom directly over the garage doors. During the course of the construction, the Respondent discovered that in order to construct the bathroom of the size, dimensions and location depicted on the plans, the bathroom would encroach or project in front of the attic playroom window if placed in the position depicted in the plans. The plans, themselves, do not show such an encroachment. Either the plans are incorrect in depicting the location and dimensions of the bathroom and the window in positions relative to each other, or the Respondent erred in interpreting the plans and in constructing the bathroom and window in deviation from the plan drawings.
In any event, the Respondent did not offer explanation to nor seek permission from the owner for the change in location of the bathroom. The Respondent told Dr. Reeves that the bathroom would have to be moved because it would encroach on the attic playroom window, but did not tell him that the location was being changed until the bathroom was already being framed in the new location at the other end of the attic playroom on the same west wall.
Thus, the owner did not approve of the relocation of the bathroom, but felt that there was no practical choice in having to accept its relocation at that point because its construction had already progressed to the point where it would be impossible to relocate it once again to its originally depicted position. Thus, based upon the Respondent's references to the apparent encroachment of the bathroom over the attic playroom window space, the owner acquiesced in the relocation.
It then developed that, as a result of relocating the position of the bathroom, the bathroom door would not open sufficiently to meet building code requirements regarding the distance and space to be allowed for the opening of doors. The bathroom door still does not open fully as a result of the bathroom
relocation. This is because the bathroom door is too close to an opposite partition wall and contacts that wall when opened so that the door cannot open fully.
As a result of relocating the bathroom, the wall in question had to be also relocated so that the bathroom door
would open wide enough to meet code requirements. As a result of the wall being relocated, patching of the plaster-type of wall coating was required. That patching resulted in a substandard wall finish with a sort of light adobe texture changing to a sort of heavy adobe stucco texture within six feet of wall space on the same wall. This is unsightly in appearance and not in accordance with the standard of construction for contractors in Leon County and not in accordance with the quality of construction which the owner was told he would receive in the new addition, as compared to the quality of the existing house.
All of this resulted from the Respondent's failure to timely anticipate the bathroom location problem and inform the owner.
The Respondent also failed to reconcile the plans with existing dimensions prevailing at the site in relation to the existing construction to which he was connecting the addition. This resulted in the necessity for relocation and modification of the stairwell and stairs from that originally depicted in the plan drawings. A stairwell to the attic playroom was constructed after three attempts. The last attempt, after redrafting of the plans, finally achieved a workable arrangement for the stairwell and stairs, but was not in conformity with the originally drawn plans.
The draftsman for the stairwell and stairs met with carpenters on the job site to assist in resolving discrepancies between the measurements depicted in the existing structure of the house and the plans. The draftsman also had to return a second time to meet with the owner and the carpenters at the owner's request to assist in adequately locating, designing and constructing the stairwell and stairs. The Respondent was not present at either of those two meetings. The owner did not find out that the stairs had to be relocated until framing of the stairs was well underway. The Respondent failed to adequately anticipate measurement discrepancies between the existing house structure and the planned addition in interpreting the plans for the stairwell and stairs and in carrying them out.
The Respondent located plumbing above the floor level in the addition and in the renovated garage of the addition. This consisted of the sanitary sewer drain line from a newly constructed half bathroom. The plans had not depicted constructing the plumbing or sewer drain line above floor level in an exposed fashion. Because the sanitary sewer line was installed above the floor level of the addition on the ground floor, it had to be "boxed in" or surrounded by a plumbing chaise where the sewer line went through the office area of the new addition. This caused a condition incompatible to some extent with the design of the structure and the owner's intent for that space. It was to be a portion of his office area, but the plumbing chaise to conceal the above floor sewer line resulted in the file cabinets, planned to be installed in that area, resting approximately six inches out into the room away from the wall, resulting in less usable floor space in that office area. Additionally, the same sewer line was exposed in one corner of the garage area of the addition suspended above the floor before it exited through the foundation wall of the building at a point above floor level in the garage. The plans did not depict such an exposed sewer line, and the owner was not aware that the sewer line would have to be located inside the addition or the renovated garage portion of the addition above floor level until he discovered them already installed or being
installed in that fashion during construction. When he discovered them that way and questioned their location and configuration, the Respondent explained that in order to achieve sufficient "fall" or slope for the gravity sewer line to the septic tank, to which it was routed, the sewer line had to be constructed above floor level. While this was shown to be true and resulted in the owner being economically benefited by using the same septic tank which was already installed for the house, he was not given the opportunity to choose whether to construct them in that fashion or to, in a more expensive way, cut through the concrete floor and adjacent foundation wall to go immediately outside the building from the bathroom. This method would have been more expensive, but would have been more aesthetically pleasing. The point is that the owner was not given an opportunity to consider this departure from the plan drawings before the construction of the sewer line had progressed to the point where it was impractical to change the design and location of it once again.
Roof framing trusses are very critical construction components. Roof trusses are pre-engineered, pre-constructed rafter and attendant bracing assemblies which are built by a truss manufacturer, transported to and installed on the job site. Their design, construction and placement on the roof structure of a building is to be accomplished in exact accordance with building plans and the truss manufacturer's design and specifications in order to avoid the risk of failure due to downloading of the weight of the roof of a building, as well as failure during wind uplift in storm conditions. Thus, structural engineering and contracting standards with regard to truss manufacture, installation and repair must be strictly adhered to, as depicted in Sections 1708.2.1 and 1708.2.3 of the SBC, in effect in Tallahassee and Leon County.
Trusses installed over the addition on the Reeves' residence were improperly cut and after the cut was discovered, were improperly repaired by the Respondent and his subcontractors. In the course of a framing inspection, the inspector discovered that the "heel end" of one truss over the new garage addition at the Reeves' residence had been cut to accommodate the location of the top of the brick veneer wall on the outside of the framed wall of the new addition. That is to say, the bottom horizontal member of the truss projected outward from the framed wall too far and had to be cut or "notched out" to allow it to be installed in relation to the height of the top of the brick veneer wall immediately adjacent to it and to the framed wall. The Respondent did not have a qualified superintendent on the job at the time of the inspection nor was the Respondent present. When later confronted by the building inspector with this problem, the Respondent either denied its existence or had no knowledge that the truss end had been cut. He did, however, agree to repair them immediately.
The repairs to the trusses were specified by engineering personnel of Alpine Engineering, who designed and built the trusses. The repairs were to be accomplished by the addition of metal reinforcing plates at certain critical junctions of the truss members. The repairs were not carried out properly, however. The corrective metal plates specified by Alpine Engineering were not properly placed and nailed. Adherence to truss specification, both as to design, installation and repair, if necessary, is critical to the structural integrity of a building, especially under downloading conditions and storm wind uplifting conditions. The failure to properly install this truss, including the cutting of it at a critical point to make it fit, and more especially, the incorrect repair after the defect was discovered, constituted a departure from generally-accepted structural engineering and contracting standards prevailing in Tallahassee and Leon County in the construction industry. It constituted a specific violation of the above-cited Sections of the SBC.
The Respondent also allowed a negative grading condition to exist in the vicinity of the garage door opening on the west side of the garage. In effect, a negative slope existed in this area causing rain water to flood into the front portion of the garage. This apparently resulted from inadequate supervision of the subcontractor who performed the grading of the ground surface around the addition to the house. The grading behind the garage addition on the west side, combined with the negative slope of the driveway concrete pad in that area allowed water to flow into the garage. This condition was aggravated somewhat by the owner's failure to timely effect sodding of the graded area, as the subcontractor had recommended. The subcontractor had recommended that the area be sodded completely so as to retard the flow of water and the attendant erosion of soil from the grade behind the garage and driveway. The condition was ultimately alleviated by the owner, himself, when he built a small retaining wall of brick to redirect the flow of water away from the negatively sloped area of the driveway pad.
In addition to the problem discussed above concerning the improper truss installation and repair, the Respondent also failed to insure that the roof on the new addition was properly supported and framed. The "common-framed" portion of the new roof (that part not constructed with pre-engineered trusses) joined the factory-built trusses on the existing garage. At the point of that juncture, an unsightly bulge in the finished shingle level or plane of the roof occurred, which was itself due to poor construction by failure to insure that proper measurements were taken and that the common-framed members were cut to the proper measurements so that the level of the common-framed portion and the factory-truss-supported portion of the new roof would line up in the same plane. When this condition came to the Respondent's attention, after the roof was completed, either through remonstrances of the owner or through advice by his carpenters, the Respondent promised the owner that they would correct the condition by "shimming up" or raising the common-framed roof portion so that the bulge would be eliminated and the common-framed portion and the truss-supported portion of the addition's roof would be level with each other. After the shimming or raising of the common-framed portion of the roof was accomplished. and after the "final" framing inspection, the building inspector made another inspection visit to ascertain if proper repairs had been accomplished at the bulged roof area. He observed that the roof had been raised by the placing of the shims or wedges under the ends of the common-framed rafters between the ends of those rafters and the decking of the pre-existing roof on the original portion of the house. (See Petitioner's Exhibit I, page 101; Petitioner's Exhibit F, page 63, photo 7, page 64, photo 10 in evidence)
The lifting of this portion of the roof by the installation of shims accomplished a favorable cosmetic result in the exterior appearance of the roof line. It was accomplished at the expense of structural integrity, however. The shimming of the common-framed roof rafters created a dangerous risk of wind uplift during storm conditions because the holding power of the nails was largely nullified at the end of the rafters. This is because the installation of the shims resulted in the nails being removed approximately half their length where the ends of the rafters were "toenailed" into the old roof decking.
In permitting the installation, and then the "shimming up" of the common-framed portion of the new roof, resulting in the partial pullout of the nails attaching the ends of the common-framed rafters to the existing roof deck beneath, no apparent effort was made (by lifting the old shingles) to ascertain if the joint of the new, common-framed rafters was with the existing rafters beneath the old roof or merely nailed through the plywood decking of the existing roof. This latter condition would result in little support for the new
common-framed portion of the roof and almost no resistance to wind uplift, especially in consideration of the fact that the addition of the shims under the new rafters greatly reduced the holding power of the rafter nailing. This constitutes a clear violation of SBC 1701.1.1, requiring that wood members and fastening comply with and conform with good engineering practices.
Additionally, the common-framed rafters were allowed to be set on 48- inch "centers," or a distance of 48 inches between the center of each rafter, instead of the Code required 24 inches. The plywood decking for the roof has a load rating only allowing a maximum of 32 inches of unsupported span for that decking. The inspector later required the installation of additional rafters between each of the existing common-framed rafters installed by the Respondent with the addition of horizontal purlins, or two-by-four bracing members, between the rafters in order to prevent sagging of the plywood decking at the decking joints. Lumber used for such framing is stamped with codes that correlate to the use and load tables in the SBC for the permissible uses of lumber for framing, including roof framing. The failure to set roof rafters on two-foot centers under such circumstances is a substantial departure from prevailing contracting standards in Tallahassee and Leon County.
A ridge beam support column was installed beneath the ridge beam to which the common-framed rafters attached at the center, highest point of the common-framed portion of the addition's roof. This support column was established by the Respondent's testimony, as well as that of the framing carpenter involved, to be unimportant and not intended as a structural member, being merely placed there to support and hold the rafters in alignment until they had been properly nailed. The problem with it, however, is that it was poorly nailed with only three nails connecting it; and it was left in place after completion of this portion of the roof. It was merely nailed to the roof decking beneath without a supporting rafter member directly under it to bear the downward load exerted on it by the weight of the roof system above it. If construction of the common-framed portion of the roof had been performed properly, there would be no downward loading on this column; and, indeed, it would be unimportant. In the instant situation, however, the ends of the rafters, as discussed above, had been shimmed up in such a way that they were no longer securely nailed at each end. This permits the weight of the roof system, and anything on that roof above it exerted in a downward fashion, to allow potential spreading of the feet or ends of the rafters where they attach to the pre-existing roof beneath, so that they cannot bear all of the downward load of the roof. This, in turn, puts a downward loading on this column which, due to the incorrect rafter framing and installation, results in it being a support column even if it was not intended to be. It is inadequately nailed to be a support column and is inadequately attached because it is attached merely to the plywood roof decking and shingles underneath it, instead of to a pre-existing rafter under the
pre- existing roof decking.
The potential for horizontal spreading of the ends of the common- framed rafters where they were shimmed up could be alleviated if the proper horizontal collar beams had been in place running between the rafters, in a horizontal plane, from one pitch of the roof to the other in the common-framed portion of the roof. These were left out, however. Thus, there is no real preventive measure to prevent the spreading of the rafters and the potential that the inadequate toenailing at the ends of the rafters may become loosened with the downward loading on the roof over time. Thus, the failure to properly attach the ends of these common-framed rafters to supporting members beneath the pre-existing roof decking and to adequately nail them, coupled with the failure
to install the correct collar beams between the two legs of the rafters, as well as the use of the ridge beam support column in the way in which it was used resulted in the common-framed portion of the roof on the addition being extremely inadequate in terms of complying with correct and generally-accepted building and engineering standards prevailing in Tallahassee and Leon County under the purview of the SBC.
Additionally, common-framed rafters in this area were severely bowed or bent near the new roof line, due to the excessive length of the rafters used. In other words, the two-by- four section rafters used span too great a length for their cross section volume and density to adequately support the roof load they have to carry. The required cross-section for each rafter spanning the length required should have been 25 cubic inches. They were only of 8 cubic inches cross section. The potential consequence is thus severe bowing of the rafters and eventual roof failure. Because of the inadequate toenailing of the rafter ends allowed by the Respondent, the potential uplift load from high winds exceeded the dead load downward of the weight of the roof itself on the rafters by some 200 pounds at the nailing points at the ends of the rafters. That is to say, the storm wind standard in the building code results in an uplift loading on such a roof which, when considered with the dead load of the roof in a downward direction, results in an uplift potential of 200 pounds at the nailing points under the storm wind velocity condition contained in the subject standard in the SBC. Thus, there is a real potential for failure of this portion of the roof in the event of hurricane-force winds.
The Respondent additionally allowed the construction of point loadings on shims under the roof framing, where the roof framing joins the vertical wall framing, which actually bear on the brick veneer exterior wall. Brick veneer is intended to be a wall finish or covering rather than to provide structural support for the wall to which it is attached or the roof above it. It can easily fail if it supports roof loading. The downward loading from the roof members at the point in question was 400 pounds per square inch. The brick veneer wall was constructed with standard "type M" mortar, which has a standard strength of 300 pounds per square inch. Thus, the bearing of "down loaded" roof weight onto the brick veneer wall, transmitted to that brick veneer wall by the use of shims or wedges on top of it bearing under the roof framing members, can result in failure of the brick veneer wall. Use of shims in this fashion violates Section 811.1.2 of the SBC
It is true that the Respondent himself did not perform the roof framing in the manner discussed above, but rather it was performed by his framing and carpentry subcontractors. It is also true that the Respondent was not on the job every day, observing the installation of each roofing member, but rather had to supervise other jobs in other areas of the City or County, as well. It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs. The contractor is, however, responsible for the quantity and quality of work performed by his subcontractors and has a duty to supervise them adequately. Even if the deficient framing was done without the Respondent's knowledge, he had a responsibility to promptly see that it was corrected. This responsibility was not fulfilled in the instant situation, and the corrections called to his attention by the building inspector were either not made, or were deficiently performed when made, in the manner found above. Either the Respondent's supervision of the job was grossly inadequate or he lacked a basic knowledge of proper roofing and structural framing standards necessary for safe residential roofing construction or a combination of the two factors.
The finished carpentry and plaster work in the addition was deficient in a number of respects. This work was performed by the Respondent's subcontractors and, to some extent, by the Respondent, himself.
The built-in bookshelves in. the office area were trimmed with two different types of mismatched trim moulding. Additionally, the shelves warped because they spanned too great a distance for the strength of the lumber used for the shelves. This resulted in them bowing severely when loaded with heavy books, and on some occasions, resulted in them falling when loaded with books. The Respondent was aware that these shelves would be used for Dr. Reeves' books before he constructed the shelves and yet constructed them of materials and in such a manner that they would not adequately bear the weight of the books placed on them. Standard building practices require disclosure to an owner at any point when design materials are not appropriate to the construction element in which they are to be used. In using materials for the bookshelves that would not adequately bear the weight which they were designed to bear, the Respondent either negligently did not insure that lumber of the proper strength and dimension was used to bear the weight and see that it was properly braced or, alternatively, did not know that the type of lumber he used would not sufficiently bear the weight of the books, which he should have foreseen would be placed on the shelves. In response to Dr. Reeves' complaint about the quality of the bookshelves, the Respondent merely indicated to him that the materials used were the highest quality and that the shelves were constructed properly. He then suggested placing the shelf boards flat on the floor with weight on them to straighten them out. This response ignores the fact that inadequate materials and construction methods were used in the bookshelves in the first place, both as to the necessary structural strength and as to the appearance of the bookshelves, which was clearly substandard in view of the mismatched trim moulding used around the top of the shelves.
Additionally, when the attic playroom windows would not close because of the improper sizing of the windowsill, the Respondent sent a carpenter, who chiseled out recesses in the windowsill to accommodate the window handle so that the window could shut in a downward direction and lock. None of the other windowsills in the house match the sill in the attic playroom windows, because it was not necessary in any of the other windows to chisel out a recess for the window handles to go down far enough for the window to lock. This problem could have been remedied by the removal of the bottom window casing member and lowering it a sufficient, small amount so that when the windowsill was replaced on top of it, adequate clearance for the handles would still exist when the window was locked so that a person's hands could fit into the window handles to raise and lower the window. Instead, the Respondent took an expedient approach at remedying this situation by chiseling out a space in the windowsills for a person's hands and then attempting to cosmetically improve it by suggesting the installation of metal cups in the windowsill to conceal the chiseled out portion.
Additional finish work in the addition, which was substandard, involved the wall patching in the stairwell and the patching and finish work around the baseboards in the stairwell, which was substandard and of a rough appearance. The skylights were not finished in the addition in a way to match the skylights in the existing house, which had been trimmed out with proper moulding and covered with a light-defusing plexiglass, which was left off the skylights installed in the addition. More importantly, the handrail on the steps in the new addition was merely anchored through the sheetrock wall with toggle bolts or screw anchors, rather than being fastened or anchored in the wall studs themselves behind the sheetrock, which would have been a strong
connection to pine lumber, rather than in weak plasterboard-type sheetrock material, which was the actual result. Because of the failure to attach the stair handrail to the studs in the wall, it would be possible for a person using the handrail to fall down the stairs and be injured. In fact, the handrail actually fell off the wall eventually because of this inadequate attachment. It is noteworthy that the Respondent, himself, personally participated in the installation of this handrail in a deficient fashion.
The finish grade outside of the garage wall on the west side of the garage portion of the addition was higher than the floor of the garage, that is, the soil in the finish grade came up higher on the outside of that wall than did the concrete floor of the garage on the inside of that wall. This was doubtless the result of the subcontracting grader's efforts to create a valley or a slight swale around the house a short distance away from the wall so to conduct water away from the house. What resulted, however, because of inadequate reverse sloping and because the wall was inadequately waterproofed, was that water seeped through the wall in a manner which could eventually rot and deteriorate the interior wall studs and the sheetrock on the inside wall of the garage. A water line or stain is visible six inches above the floor line on the interior wall of the garage at this point, which indicates that moisture is migrating through this wall. This is a departure from prevailing standards of practice in the construction industry.
An additional severe defect in the construction of the addition occurred in conjunction with the installation of the palladian window discussed above. The Respondent permitted the use of doubled "two-by-sixes" nailed or "scabbed" together as a header member or plate spanning the top of the palladian window opening in the garage. Although double two-by-sixes are stronger than a single two-by-six or even doubled two-by-fours, the doubled two-by-six member was not sufficient to bear the load from the flooring and roof system bearing downward from the room and roof above. Doubled two-by-twelves or their equivalent was required for such a load-bearing-span. When the building inspector visited the job site and observed the doubled two-by- sixes, he issued an oral correction notice to the Respondent's subcontracting framing personnel on the job. When he returned to inspect the job later, after sufficient time had elapsed to make the correction, he found that the two-by-sixes were still in place and the sheetrock installers were already covering the interior walls of the garage. This would soon have the effect of concealing the inadequate, doubled, two-by-six header. Because of this, the building inspector immediately issued a stop work order on the job. If the Respondent had properly carried out his duties in supervising this job, he would have been aware that the two-by- sixes had been substituted for two-by-twelves or their equivalent. Even if he had not initially realized that the two-by-sixes were installed and were inadequate (although a competent contractor should have), he should have seen that the two-by-sixes were replaced when the building inspector called it to his or his subcontractor's attention. A stop work order should not have been necessary in order to effect safe construction of the window header in question. Eventually the problem was corrected by having the truss company engineers involved design a steel "flitch plate" to adequately construct and install a safe window header in the space that was available. This was done by sandwiching the steel plate in-between two two-by-sixes, which then made an adequate header support member easily installed in the available space. The Respondent either negligently failed to note that the use of the two-by-sixes was inadequate or failed to adequately supervise the framing work on the job. Alternatively, if the Respondent knowingly allowed the available space for the header at the top of the window too dictate the size of the header, rather than using Code required window-opening span tables to calculate an effective
alternative, he would have engaged in misconduct in the practice of contracting. The record does not clearly reflect, however, that he knowingly allowed the two- by-sixes to be used for this reason, although it does establish that he should have been aware of their use and of their inadequacy and promptly acted to correct it when it was called to his attention, which he did not do until the stop work order was issued.
The Griggs House
On November 10, 1986, Dr. Griggs, after having solicited proposals for construction of his residence, accepted a proposal from the Respondent to construct a residence for him and his wife at 3552 Trillium Court, Tallahassee, Florida. The cost of the construction was to be $170,090.00. The original proposed cost, prior to the entry of the parties into a contract, was
$188,000.00. Certain deletions and changes were made, which resulted in the ultimate contracts price of $170,090.00, however.
Construction commenced on the Griggs, residence in February of 1987. A certificate of occupancy was issued in October of 1987. During the course of construction, certain deficiencies in the house were communicated orally and in writing to the Respondent by the Griggs. These included posting of letters and the leaving of "post-it" notes on the spot of certain areas of construction which the Griggs believed to be defective or which they wanted changed for some reason. The frequent changes in construction elements proposed by the Griggs, many of which resulted from changes of mind by their concerning how they wanted certain elements of the construction performed, culminated in a strained relationship between the Griggs and the Respondent. Ultimately, they sent a number of registered letters to the Respondent concerning their dissatisfaction with the manner in which the project was being completed and concerning items they wished performed by the Respondent. Some of these letters were returned undelivered and unopened. Their differences culminated in Dr. Griggs' decision, after ten months of construction, to finish the house himself because he felt that the Respondent was not responding to his requested corrections or changes.
The contract had specified that the Respondent had six months to complete the house. Some of the delay, at least, was the responsibility of the Griggs, caused by their requesting various changes in the way the house was constructed and to be constructed. In any event, after Dr. Griggs terminated the relationship with the Respondent, he called the Tallahassee Builders' Association, lodged a complaint, and received the recommendation of that Association that he hire an engineer to review the construction performed to date. Ten days after Dr. Griggs received a letter from the Respondent stating that he was leaving the job, Dr. Griggs gave the Respondent a letter terminating his contract.
A number of significant construction deficiencies and errors exist in the manner in which the Respondent constructed the house. These include problems with the foundation and basement wall construction, certain framing deficiencies in the walls and roof, the front porch, inadequate water damage protection, and improper installation of correctly engineered framing components. These deficiencies are treated in
detail below.
The Respondent fabled to install adequate steel reinforcement and to adequately fill cores or cavities in the concrete blocks of the outside, western-most basement wall, in that area of the wall where backfall or earth rested against its outside surface. This wall was constructed of 12-inch
concrete blocks, with the normal cavities or cores in each block. The blocks were laid by the brick mason in "courses" or rows, one block course on top of the course below it to a height of nine feet. Each core thus represented a vertical cavity of approximately nine feet in the wall. The architect's plans called for inserting vertical steel reinforcing rods or "rebar" in these cores or cavities, 48 inches apart, pouring them full of concrete, with the vertical rods extending to the top of the nine-foot wall where a solid concrete lintel was to be poured over and around them. The plans also called for horizontal steel reinforcing rods to be placed at two-foot intervals from the bottom to the top of this wall in the area of wall where backfill or earth was retained on the outside of, and bearing against, the wall. Although vertical steel dowel rods were installed from the foundation footing extending into the vertical concrete block wall in this west wall, they only extend in the case of each such dowel, from two feet, three inches to 36 inches above the foundation footing. The plans call for each vertical rod to extend the full height of the nine-foot wall where earth bears against it. (See Respondent's Exhibit 10 and Petitioner's Exhibit AA in evidence, as well as the testimony of Martin Page, Engineer).
None of the vertical steel rod reinforcing in the
12-inch block wall was present from the bottom to the top of the nine-foot wall. None of it extended vertically more than three feet above the footing.
Additionally, the cores of this basement wall were not poured solid with concrete, as specified in the plans for the earth-retaining portion of the wall. In fact, less than 50% of the cells in the earth-retaining portion of this wall were poured solid. The test corings performed by Ardiman & Associates, depicted in Respondent's Exhibit 10 and in the testimony of Martin Page and others, establishes that, through this coring method and by visual inspection thereafter, this reinforcing in the wall was missing in large part. Nearly all of the specified horizontal rebar steel was also omitted, although the Respondent maintained that he used "durawall" material on every two courses of block, instead of the specified horizontal rebar steel. He maintained this was equal to the horizontal steel as an adequate reinforcement. This was not established to be adequate, however, in terms of proper engineering and construction and, in any event, was not in accordance with the plans. If it was impossible, as the Respondent maintained, to put the horizontal steel in the mortar joints because of lack of sufficient space between the blocks in those joints, he should have called this to the architect's attention and obtained an alternative solution approved by the architect who drew the plans. Construction in this manner, for the earth-bearing portion of the west wall, renders it deficient in the structural strength demanded by the design and renders it of less structural integrity in the future with possible cracking and leaking to result. The potential for future damage caused by the inadequate reinforcing in the wall is alleviated somewhat by the fact that the earth retained by the wall does not extend to its full height, nor does the entire wall have to support earth loading. Only 28 feet of the wall has earth backfill extending upward for a portion of the wall's height. In any event, however, to correct this failure to follow the architect's design (which was adequate as designed) will be costly and time consuming, although it was not clearly shown that the problem is of sufficient seriousness to justify constructing a retaining wall on the outside of the present west basement wall at issue, as the Petitioner maintains.
The Respondent constructed a front porch on the residence by placing the brick forming the porch floor over felt tarpaper and plywood, as well as framing members which were not "pressure treated." Since they are not pressure treated, they are susceptible to water-induced rot damage. The felt paper, itself, is not impervious to water and is not adequately waterproofed. Accordingly, the non-pressure treated wood beneath the brick and felt paper, including structural members under the porch, are already rotting; and the
bricks and mortar of the porch are loose due to being placed on an unstable, water-damaged surface. The water runs down into and erodes into the basement space below and adjacent to the porch location. The plans originally called for a roof to be placed over this porch floor which would have alleviated the water damage presently being caused. Because of a change agreed to by the Griggs and the Respondent to place three windows above this porch, the Respondent deleted the porch roof. Although the deletion of the porch roof may, indeed, have been necessitated by the addition of the three windows which the Griggs desired, the Respondent failed to explain to them the consequences of deleting the protection of the roof over that porch; and, indeed, knowing that the roof was to be deleted, the Respondent should have taken steps to insure that the porch floor was constructed of waterproof, stable materials. As constructed, there is a load-bearing wall on part of the support system that underlies the brick porch, creating a dangerous situation over time because of weakness caused by water- induced wood rot.
The construction of the porch was shown not to comport with the SBC, particularly Section 1703.15, because it was not constructed with pressure- treated wood or in the alternative, because it did not have an impervious material between the brick porch floor and the wood beneath. This method of construction also violates SBC at Section 1409.4 because the masonry floor rests on a combustible wood material.
Additionally, the exterior trim on the house lacked proper flashing and where it contacted concrete was not pressure treated. The windowsills were improperly installed so that the drip edge on the window casing could not function properly in conducting water away from the house.
Dr. Griggs requested that the Respondent construct a crawlspace storage area adjacent to the finished portion of the basement, and the Respondent agreed to do so. This space was not included in the original plans, but the Respondent agreed to construct it at Dr. Griggs' behest in order to accommodate Griggs' wishes. He never informed Dr. Griggs, however, that in order to get sufficient space in the storage area, the Respondent would have to excavate the earth in the area in such a way that the floor slab poured in this basement crawl space would be significantly lower than the existing perimeter foundation footing. This resulted in exposing the soil under the existing foundation footing above the poured slab. This allowed the soil under the foundation footing to erode due to passage of water from outside the house, particularly from the area of the front porch, so that soil was eroded from under the foundation footing in this area.
The creation of such a condition ir1i the crawlspace storage area is a serious structural problem. It could cause, if allowed to progress uncorrected, cracking of the foundation or collapse of the walkway above it on the outside of the house. This condition is a serious departure from prevailing standards of construction practice for similar foundations in Leon County and violates the SBC, specifically Section 1302.1. This provision requires that the bottom of foundation footings and foundations extend no less than 12 inches below the finished earth grade. By excavating out and installing the slab floor beneath the foundation footing, the result was that the foundation footing was resting approximately 12 inches above the finished grade on the inside of the footing. The earth beneath the exposed footing eroded away until the matter was corrected by
the installation of brick and cement "parging" to retain the earth beneath the footing. This corrective measure was specified by the architect for the job and was eventually accomplished. In the same area of the basement crawlspace, the
Respondent also permitted non-pressure-treated bottom plates to be installed in direct contact with the concrete, which can promote water-induced rot in violation of Section 1703.4, SBC.
Although the Petitioner charged that the basement floor slab, itself, was not poured within an acceptable tolerance of thickness, the evidence, consisting of the results of the Ardiman engineering investigation of this matter, in evidence as Respondent's Exhibit 10, showed that the basement floor slab averaged approximately 3.97 inches thick, which is sufficient to meet the building code requirements. It was shown, however, that the slab does not rest on top of the foundation footings on the southwest or north portions of the foundation, as specified in the plans. Although the Respondent maintained that pouring this slab as a monolithic slab with thickened portions under the load- bearing areas successfully addresses this problem, in fact, the evidence shows that some of those load-bearing, thickened portions of the slab are not the full required ten- to twelve- inch thickness, but rather are on the order of six to nine inches thick, with reinforcing steel not encased in concrete at at least one point. This is an insufficient footing under the interior walls of the basement. Thus, although the slab is of a sufficient average thickness to meet the building code requirements, the thickened portions of the slab are not sufficient to support load-bearing walls within the context of compliance with good construction and engineering practices established by the Petitioner's expert witnesses.
A floor truss or joist was installed upside-down, due to a subcontractor's mistake. In order to properly comply with engineering specifications, the addition of "gusset" plates was required according to the engineering specifications furnished by the truss manufacturer. The repair was appropriately made. Misplacement of this truss should have been readily apparent to the contractor if propel supervision had been effected on the job. The particular circumstance of the truss placement, configuration and loadbearing requirements made structural failure as a result of its upside-down placement unlikely, however.
The Respondent failed to insure, by adequate supervision, that certain walls were properly framed according to the architect's plans. In this respect, the ceiling height for the basement was designed in the plans to be nine feet; but the Respondent allowed the walls to be framed in such a way as to result in an eight-foot ceiling height. The upper floor is framed to accommodate a nine- foot ceiling according to the plans, however.
Three load-bearing door headers (load-bearing members spanning the top of door openings in the basement) were constructed in such a way as to not be in contact with the wall framing above or the vertical supports or "cripples" below. The cripples were cut too short. The owner was required to take the remedial measure of hiring a carpenter, who jacked up the support headers above these door openings to the correct load-bearing positions and then replaced the cripples with cripples of proper length so that they would bear properly against the headers and prevent any sagging or cracks from developing in the walls, or improperly-fitting doors above. This could result from sagging of the wall plate, wall and floor above these improperly fitted headers and cripples. Additionally, horizontal purlin supports needed to be added to interior walls between studs in the basement as a remedial measure, after the Respondent ceased work and left the job site, in order to prevent bowing of studs from downward loading.
The endmost stud of a non-load-bearing wall in the basement contacted or "butted" against a concrete block wall. It was not treated to resist
moisture-caused rot. The use of non-pressure-treated studs at points where that wood must bear against concrete is contrary to prevailing standard building practices, since only pressure-treated rot-resistant lumber should be in contact with moisture-prone concrete. This condition had to be repaired by a carpenter retained by Dr. Griggs.
Common-framing was constructed on top of and between two trussed roof areas. The roof joists were insufficient for the spans covered,. and the bearing points of the ridge beam were improperly braced. The effect of this was to create a soft or flexible roof section in this common-framed area. This means that with a live load atop the roof, such as a person walking on the roof, the roof would `flex, which can cause failure over time as the roof ages due to flexing, which will cause leakage.
The original plans for the roof call for a polynesian-type roof line, that is, with gables and a compound or cantilevered pitch. The home was built, however, with a conventional, straight-pitched roof. It was not established, however, that Dr. Griggs and his wife had never authorized the change from the polynesian roof line to a straight pitch. Rather, there had been discussions between the Respondent and the Griggs before entering into the contract about ways in which they could save costs. In response to these discussions, the Respondent had Ben Sheppard, the draftsman for the truss system, redesign the roof system to depict a straight or conventional pitched roof. The weight of the evidence indicates that the Griggs approved of this change in the roof before entering into the actual contract. Upon questioning of Dr. Griggs by roof truss installer, Reggie Brown, when the trusses were delivered to the site and when the trusses were installed on the upper floor framing, concerning them not providing for the cantilevered, polynesian pitch, Dr. Griggs acknowledged that he and the builder had agreed to the different design. The testimony of Marvin Moran, a general contractor and the superintendent of the job, indicates that on an occasion when he, Reggie Brown and Dr. Griggs were present together on the job site with the construction plans, and were discussing the roof design, at the sheathing stage, Dr. Griggs again acknowledged that he and the Respondent had agreed to the reconfiguration of the roof. This reconfiguration was taken into account in arriving at the final contract price depicted above. While the best practice in the construction industry indicates that an owner and a builder should execute a written change order for such a major alteration of a construction project, it is common practice for such changes to be done by verbal agreement. In any event, the preponderant evidence of record indicates that this change was effected prior to the formal contract involved herein being entered into by the Griggs and the Respondent.
Finally, the Respondent did not insure that proper flashing was installed between the rear deck surface and the house. The flashing was necessary, especially since the rear deck level was the same level as the interior floor of the house and was necessary to prevent water from penetrating the house walls at the point where the decking joins the house. Although caulking was used to substitute and was performed with an appropriate material, the mere use of caulking in such an application is not accepted, good building practice and does not comport with appropriate building and contracting standards in the Leon County construction community.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).
The above Findings of Fact obviously reveal a substantial number of significant violations of prevailing
standards of good building contracting violations of the SBC, itself. The significance of a number of these violations to the basic structural integrity of the two buildings involved renders the conclusion inescapable that the Respondent has been grossly negligent as to his conduct of his buildings involved renders the conclusion inescapable that the Respondent has been grossly negligent as to his conduct of his contracting practice in the course of these two projects. This is so because the Respondent clearly did not adequately supervise his erring subcontractors on both jobs. He did not, on his own volition, closely oversee all phases of the work, order corrections made where deficiencies in construction and finish had occurred and see that those corrections were carried out.
Generally speaking, it has not been proven that the Respondent is incompetent to practice residential construction contracting, because the overall tenor of his testimony and that of his supporting witnesses shows that he has a substantial knowledge of the principles and practices of constructing such
residences. The primary inadequacies in his practice of contracting within the above particulars involved his failure to be present on the job sites, his failure to adequately supervise the workmen performing the various phases of f construction, whom he trusted excessively, and his failure to correct errors once he should have known of them. Some instances, however, notably the excavation and installation of the crawlspace basement slab in the Griggs' residence below the level of the adjacent foundation footing; the persistence in maintaining the inadequate header
member over the palladian window in Reeves' addition after being warned to replace (or having his framing contractor so warned); the cosmetic shimming and inadequate framing of the roof; the failure to reconcile existing measurements with measurements and drawings depicted in the plans with regard to the moving of the Reeves' bathroom and the decision to delete the roof over the Griggs' front porch, without warning the owners of the consequences to be expected from such actions; and his own participation in the improper installation of the Reeves' stairway handrail and bookshelf construction, does amount to incompetence and misconduct in the practice of residential contracting.
However, such glaring errors as the construction of the basement walls of the Griggs' house to a ceiling height of eight feet, instead of the required nine feet, and the plethora of framing and other type of construction errors present in the two residences at issue, constitute grossly negligent failure to supervise the persons working for him whose craftsmanship he was responsible for as the general contractor in charge of the two jobs.
The Respondent's general argument that both Dr. Reeves and Dr. Griggs knew of these departures from the plans and approved of them in most cases is simply not compelling. The evidence establishes that most or all of those departures would have been preventable with adequate advance planning by the contractor, and the fulfillment of his duties as contractor to reconcile all dimensions on existing construction with those depicted on plans before construction was started and advising the owners in advance of any problems that
he foresaw. If he had performed such basic contractor duties adequately, the owners and the Respondent would not have found themselves in the position of having to accept the plan deviations because construction had already advanced to the point where the problems were no longer correctable. It is likewise not acceptable to argue, as the Respondent seems to, that the county building inspectors passed on the work and issued a certificate of occupancy. This is not an adequate defense. The building permit application signed by the Respondent contained a certification by him that, inter alia:
... all provisions of laws and ordinances governing the type of work will be complied with whether specified herein or not. The granting of a permit does not presume to give authority to violate or cancel the provisions of any other state or local law regulating construction or the performance of construction. (Petitioner's Exhibit E, page 52).
Further, the Respondent's repeated remonstrances that he would have repaired and corrected any and all defects in construction if the owners had only reasonably notified him and given him time to do so is not convincing and is unsupported by the record. Both of these owners were very demanding with regard to changes and corrections they wished made in the construction and finishing of both projects, even in those instances where no defective construction was involved. As a natural result, a hostile relationship developed between the Respondent and both owners. On the other hand, the record is replete with examples of both owners' fruitless attempts to maintain any meaningful communication with the Respondent. Even if the owners prevented all correction of the construction defects, the fact remains that
the various defects delineated in the above. Findings of Fact were constructed under the Respondent's supervision and control of the jobs and the subcontractors involved and were his initial responsibility whether or not they were subsequently corrected by him or others.
Many of the defects in the structural components and workmanship installed in both residences by the Respondent, and the subcontractors for whom he was responsible, are substantial and serious ones. In fairness to the Respondent, it should be pointed out that the Griggs' house was constructed some
125 feet away from the original site upon which the architect's design and plans were based and that Dr. Griggs elected not to obtain a survey of the new site upon which the house was ultimately constructed, nor additional soil tests, after being advised to do so. Likewise, the addition of the structure in question to the existing Reeves' home was a more complex and difficult to execute construction project because of the necessity to blend in the new structure with the existing structure in both a structurally correct and an aesthetically pleasing manner. The Respondent certainly was not well-served by his subcontractors in many of these instances. The clear and convincing evidence of record supportive of the above Findings of Fact, however, leads to the inescapable conclusion that the Respondent has violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetency and misconduct in the practice of contracting. He has also violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating certain applicable building code provisions referenced herein. It has not been established that he committed fraud or deceit in the practice of contracting because the record evidence does not establish that he made representations he knew or intended at the time to be false or that the deficiencies were
intentionally committed with an intent to deceive the owners. Brod v. Jernigan,
188 So.2d 575 (Fla. 2nd DCA 1966), (Reh. Den. Aug. 3, 1966.) In consideration of the serious nature of the departures from appropriate contracting practices and standards, a substantial penalty is warranted.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,
RECOMMENDED that a Final Order be entered suspending the Respondent's building contracting license for one year and requiring the Respondent to complete such continuing education courses, in those areas of residential contracting represented by the deficiencies found herein, as the agency deems appropriate.
DONE AND ENTERED this 24 day of October, 1990, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24 day of October, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2954
Petitioner's Proposed Findings of Fact 1-17. Accepted.
18. Accepted, except to the extent that the clear and convincing evidence of record does not establish that
representations made by the Respondent were fraudulent because it has not been established that he made any misrepresentations knowing at the time that they were made that they were false or that he did not intend to fulfill them.
19-23. Accepted, except that the first sentence of No. 23 is a conclusion of law and not a proposed finding of fact.
24-27. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Accepted.
Rejected, as constituting a conclusion of law, rather than a proposed finding of fact.
31-33. Accepted.
34. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact.
35-42. Accepted.
43. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact.
44-57. Accepted.
58. Rejected, as subordinate to the Hearing Officer's finding of fact on this subject matter, in that although the bookshelves were clearly substandard, there has been no proof
that the Respondent made any fraudulent misrepresentation as to the quality of materials and construction, but rather differed in his opinion of the quality of the materials and workmanship from the opinion of Dr. Reeves and was negligent in the selection of materials and in the use of them in constructing the shelves.
59-68. Accepted.
69-75. Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
78-84. Accepted.
Rejected, as subordinate to the Hearing Officer's
findings of fact on this subject matter and as not supported by clear and convincing evidence of record as to the matter of basement slab thickness itself.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
88-93. Accepted.
Accepted, but not in itself materially dispositive of the issue concerning the pitch of the roof.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Heading Officer's
findings of fact on this subject matter, and as not, in accordance with the clear and convincing evidence of record, in that it is found above that the owners did consent to the alteration in the roof configuration or design.
Accepted.
Accepted.
Respondent's Proposed Findings of Fact
The Respondent's proposed findings of fact have all been considered and in some instances, accepted, and in many instances, rejected in the body of this Recommended Order. It is not possible, however, to separately rule on improperly stated proposed findings of fact because the Respondent did not separately state the proposed findings of fact, but rather intertwined them with factual and legal arguments, discussions and recitation of evidence and testimony. Consequently, separate and coherent rulings on individual proposed findings of fact cannot be made. All factual and legal arguements raised in the Respondent's post-hearing pleading styled "Recommended Order" have, however, been considered and weighed in the rendition of this Recommended Order.
COPIES FURNISHED:
Mr. Daniel O'Brien Executive Director Construction Industry
Licensing Board
P.O. Box 2 Jacksonville, FL 32202
Kenneth E. Easley, Esq. General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, FL 32399-0792
Robert D. Newell, Jr., Esq. NEWELL & STAHL, P.A.
817 North Gadsden Street Tallahassee, FL 32303-6313
Robert L. Fountain, Jr., Pro Se 2124 Shady Oak Drive Tallahassee, FL 32303
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Oct. 24, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 25, 1991 | Agency Final Order | |
| Oct. 24, 1990 | Recommended Order | Significant number of violations of good building practice due to failue to supervise or make corrections gross negligence,incompetence and wilful violation. |
CHATEAUX DE VILLE vs. CITY OF CLEARWATER AND ANTONIOS MARKOPOULOS, 89-002954 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. IRA L. VARNUM, 89-002954 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. SPENCER L. JAMES, 89-002954 (1989)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. SYLVIA V. ALLEN, 89-002954 (1989)
BEHZAD KHAZRAEE vs CONSTRUCTION INDUSTRY LICENSING BOARD, 89-002954 (1989)
