STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-0603

)

KENNETH RONALD BOAZ, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on March 28, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert A. Crabill, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32388-2202

For Respondent: Warren Knaust, Esquire

Knaust & Valente, P.A. 2730 Central Avenue

St. Petersburg, Florida 33712 STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida

should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Amended Administrative Complaint dated November 19, 1998, the Department of Business and Professional Regulation, on behalf of the Construction Industry Licensing Board (Board), charged Respondent, Kenneth Ronald Boaz, with having committed gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property, and by committing incompetency or misconduct in the practice of contracting, by constructing an addition to a residence owned by Vicky L. Smith in Largo, Florida, without properly insuring that the soil below the floor was properly compacted and by pouring the slab floor without reinforcement, in violation of Sections 489.129(1)(n) and (o), Florida Statutes. Respondent demanded formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Vicky Smith, owner of the property in question; Kevin McGinley a general contractor in Florida; Wendell Wardell, building inspector for Pinellas County, Florida; and Wilbur Yaxley, a professional engineer and expert in the area of general contracting. Petitioner also introduced Petitioner’s Exhibits 1 and 8 through 12. Petitioner’s Exhibit 2 for identification was

not admitted. Respondent testified in his own behalf and introduced Respondent’s Exhibits A through F.

A Transcript of the proceedings was provided and subsequent to the receipt thereof on April 10 and April 13, 2000, counsel for Petitioner submitted matters in writing which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name.

2. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of

   $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project.

3. On September 5, 1996, Respondent obtained permit

   
   

   No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt.

4. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately

   $4,000.

5. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however.

6. Because of her concern, in the Spring of 1999, Ms.

   
   

   Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent.

7. Respondent last worked on this job in December 1996.

   
   

   Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed.

8. The defects in the construction are manifested by the following:

   1. There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch.

      
      

   2. The roof of the addition leaks and the insulation is moldy and falling.

      
      

   3. There are cracks all over the additional floor and outside patio slab.

      
      

   4. The corners of the addition are dropping.

      
      

   5. Cinder blocks in the addition walls are cracking

      
      

   6. The lintel is broken in three places.

      
      

9. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up."

10. Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the

    Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it.

11. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it.

12. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and

    settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required.

13. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof.

    The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition.

14. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required.

15. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil

    from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time.

    While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface.

16. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before.

17. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate.

18. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed

    with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse.

19. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property.

20. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.

    CONCLUSIONS OF LAW

    
    

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

22. In a two-count Administrative Complaint, the Board has charged Respondent with gross negligence, repeated negligence, or negligence resulting in danger to life or property, in violation of Section 489.129(1)(n), Florida Statutes; and with

    incompetence or misconduct in contracting, in violation of Section 489.129(1)(o), Florida Statutes.

23. Petitioner has the burden of proof to establish its allegations against the Respondent by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern

    and Co., 670 So. 2d 932 (Fla. 1996). Clear and convincing evidence has been defined by the courts as credible evidence of such weight that it produces in the mind of the trier of fact the firm belief that the allegations are true.

24. The evidence of record clearly establishes that though he did not pay for or accomplish the removal of the trees on

    Ms. Smith’s property near where the construction was to be done, he identified the problem and was fully aware of by what means and method the work was done. Therefore, he was on notice that a possible compaction problem existed. In fact, he did some water compaction, but he failed to ensure the compaction done was adequate, as he should have done. Thus, the construction on improperly compacted soil is a violation of the building code.

    This constitutes negligence and misconduct in contracting.

    
    

25. As a result of the failure to properly compact the soil, the addition constructed by Respondent developed cracks in the walls and the slab due to settlement of the improperly compacted soil beneath it. Further, the addition wall has begun

    to separate from the existing structure. This constitutes a danger to the property in question.

26. Rule 61G4-17.001, Florida Administrative Code, sets out penalty guidelines for cases involving misconduct in contracting absent aggravating or mitigating circumstances. For a first time violation involving misconduct or incompetency, the penalty may include a fine of from $250 to $1,000. For a first violation of negligence, as alleged and demonstrated here, the penalty may include a fine of from $500 to $1,500. In both cases probation, suspension, or revocation of the license is also authorized. No evidence of prior misconduct was presented.

27. Rule 61G4-17.002 Florida Administrative Code, outlines circumstances which may constitute aggravation or mitigation authorizing a modification of the suggested penalties. Significant among these, and pertinent to the issue here, are resulting unrelieved monetary or other damages to the licensee’s customer and violations of building codes. The evidence presented here demonstrates that Ms. Smith has sustained significant financial damage as a result of Respondent’s actions and Respondent has failed to make any restitution or take any corrective action without the payment of additional funds. This matter has been in dispute for over three years.

28. The Board suggests that Respondent be fined $500 for the offense of negligence resulting in danger to property

alleged in Count I, and $5,000 for the violation of the building code alleged in Count II. The Board also suggests that Respondent reimburse Ms. Smith for the amounts she paid to him totaling $21,072.60, or, in the alternative, that within no more than 90 days from the date of the final order herein, he undertake such corrective action as is necessary to remove the red tag issued by the Pinellas County Building Department. The suggested penalties appear reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project.

DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000.

COPIES FURNISHED:

Robert A. Crabill, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32388-2202

Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue

St. Petersburg, Florida 33712

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32211-7467

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000603

Orders for Case No: 99-000603