STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6829

)

JOHN C. LOMBARDI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on January 9, 1991, at Clearwater, Florida.

APPEARANCES

For Petitioner: Sarah Richardson, Esquire

315 Court Street Clearwater, FL 34616

For Respondent: John C. Lombardi, pro se

10975 49th Street North Clearwater, FL 34622

STATEMENT OF THE ISSUES

Whether Respondent violated Pinellas Count Water and Navigation Control Authority Regulations (PCWNCAR) as more specifically alleged in the Administrative Complaint dated September 12, 1990.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 12, 1990, the Pinellas County Construction Licensing Board, Petitioner, seeks to revoke, suspend or otherwise discipline the license of John C. Lombardi, Respondent, as a marine specialty contractor.

As grounds therefor, it is alleged that Respondent, as qualifying contractor for Myron Gibson Marine Construction, Inc., contracted to install two tie poles 25 feet off the dock at 809 Bay Point Drive, Madeira Beach, Florida, to a minimum depth of 10 feet, but the poles reached a penetration of only 3 to

3 1/2 feet, thereby violating Section 13.4.A(2) of PCWNCAR which requires a minimum penetration of 6 feet for all piling used in dock construction or for tie poles.

At the hearing, Petitioner called three witnesses, Respondent called three witnesses, including himself and 8 exhibits were admitted into evidence. Based upon the evidence submitted, the stipulation of the parties and observations of the witnesses, the following is submitted.

FINDINGS OF FACT

1. John C. Lombardi, Respondent, is a certified marine specialty contractor and was so licensed at all times here relevant. He holds license C- 4097.

   
   

2. Respondent at all times relevant hereto was the qualifying contractor for Myron Gibson Marine Construction Corporation. He also is the owner of Myron Gibson Marine Construction Corporation.

   
   

3. Respondent entered into an oral contract with Larry Mickelson to install two tie poles off the dock at 809 Bay Point Drive and into a written contract with the property owner of this property to install two tie poles.

   
   

4. Under the terms of the written contract, Respondent contracted to install these tie poles 25 feet off the dock with a minimum penetration of 10 feet.

   
   

5. Due to an error on the part of the contractor, the initial tie poles were installed too close to the dock and had to be relocated.

   
   

6. Respondent contracted with Mickelson to jet the poles to the required penetration. However, at the location 25 feet off the dock, the construction crew encountered a hard clay and shell mixture some four feet below the water bottom sand and silt and could get less than 8 feet penetration.

   
   

7. When Mickelson attempted to tie up his boat to these tie poles, he noted they moved and called Gibbon Marine to correct the situation.

   
   

8. In resetting the piles, Gibson Marine cut one of the piles in a point to facilitate driving the pile to a greater penetration. A drop hammer was used to drive the piles further into the clay and shell mixture.

   
   

9. Respondent's crews made four visits to the site to correct the problem, and final payment was made on March 13, 1990 (Exhibit 8).

   
   

10. Mickelson still was not satisfied, and Respondent advised him of the difficulty encountered in attempting to get 10 feet penetration and offered Mickelson three options, all at extra costs. These were (1) install sister piles, (2) relocate piles in hopes of finding less dense material in which to drive the piles, and (3) call in another contractor with equipment to drill the holes for the piles.

    
    

11. Mickelson had another marine contractor come out to reset the piles to a greater depth, but this contractor was also unsuccessful. Mickelson then employed Ress Marine Construction who had drilling equipment with which to drill holes in which to set the tie poles.

    
    

12. Ress Marine removed the piles installed by Respondent and drilled holes into which two tie poles were installed to a minimum depth of 10 feet.

13. The removed piles which had been installed by Gibson Marine showed discoloration on the bottom three feet of these piles. One of Petitioner's witnesses (Ress) testified that he told Mickelson the piles appeared to have obtained only 3 to 3 1/2 feet penetration. Two of Respondent's witnesses who were on the scene doing the work when the piles were initially installed both testified the piles were driven to a penetration depth of not less than 7 to 8 feet.

    
    

14. Respondent has owned Gibson Marine for the past 5 years, and this is the first customer complaint he had received, and these are the only charges ever filed against his certificate by Petitioner or any other regulatory authority.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Chapter 89-504, Laws of Florida, Section 12(6).

    
    

16. Respondent is here charged only with yiolation of Section 13.4A, PCWNCAR, which provides in pertinent part the following minimum construction specifications for all dock construction:

    
    

    (2) When Southern Pine piles treated with Chromatid Copper Arsenate-Type A, B or C are used, analysis by assay extraction in accordance with American Wood Preservers Association Standard A-2 may be required to show a minimum retention and distribu- tion of solid preservative of 2.5 p.c.f. in the Zone 0" to 1.5" from the surface and 1.5 p.c.f. in the zone 1.5" to 2.0" from the surface. In no event shall penetration be less than 6'0" into the submerged bottom, if impenetrable material is encountered, the Coastal Management Division must be contacted to seek a variance to this minimum penetration requirement.

    
    

17. Chapter 89-504, Laws of Florida, Section 24, establishes grounds for revocation or suspension of certification or registration issued by the Pinellas County Construction Licensing Board. These causes include:

    
    

    (d) Willfully or deliberately disregarding and violating the applicable building

    code or laws of this state, this board, or any municipality or county of this state;

    
    

18. In these proceedings, the Petitioner has the burden of proving the alleged violation by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

19. The photographs of the piling installed by Respondent after they had been removed (Exhibit 5) shows discoloration of these poles only on the lower 3 feet of the pole. One witness, the contractor who had the drilling rig necessary to set the poles 10 feet into the bottom, testified the discoloration indicated only 3 feet of penetration. Respondent, plus his two other witnesses, testified that this discoloration indicated only the depth the poles had been sunk in the clay, and there was approximately 4 feet of sand and silt over the clay and shell mixture into which further penetration could not be obtained by jetting and driving. These witnesses all contended that approximately 7 to 8 feet of penetration had been obtained, and Respondent advised Mickelson that the only way 10 feet penetration could be obtained was by drilling.

    
    

20. In light of the conflicting evidence from credible witnesses regarding the penetration obtained, Respondent has failed to prove, by clear and convincing evidence, that Respondent willfully or deliberately violated Section 13.4.A(2) of the PCWNCAR above quoted. It is, therefore,

RECOMMENDED that a Final Order be entered finding John C. Lombardi not guilty of a willful violation of Section 13.4.A(2) of the PCWNCAR and dismissing the Administrative Complaint.

ENTERED this 1st day of February, 1991, in Tallahassee, Florida.

K.N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administratiye Hearings this 1st day of February, 1991.

COPIES FURNISHED:

Sarah Richardson, Esquire

Senior Assistant County Attorney Pinellas County

315 Court Street Clearwater, FL 34616

John C. Lombardi

10975 49th Street North Suite 10

Clearwater, FL 34622

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. 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.

Docket for Case No: 90-006829

Orders for Case No: 90-006829