STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )
)
Petitioner, )
)
vs. )
)
HENNING WINKEL, )
)
Respondent. )
Case No. 01-0850PL
)
RECOMMENDED ORDER
Pursuant to notices, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Bronson, Florida, on December 5, 2001.
APPEARANCES
For Petitioner: Robert A. Crabill, Esquire
Chief Construction Attorney Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-2202
For Respondent: Joseph Lander, Esquire
Post Office Box 2007
Cross City, Florida 32628 STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Respondent's license as a certified building
contractor should be subjected to disciplinary measures because of the allegations and violations of Section 489.129, Florida Statutes, alleged in the Administrative Complaint and what, if any, penalty is warranted.
PRELIMINARY STATEMENT
This cause arose upon the filing of an Administrative Complaint dated December 18, 2000, by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Department agency). In the Administrative Complaint, it is charged that the Respondent, Henning Winkel, committed certain violations of Section 489.129, Florida Statutes, specifically Subsections 489.129(1)(d), (n), (o), (p), (k), and (h), (2), Florida Statutes. In particular, it is alleged that the Respondent violated applicable building codes; committed incompetence and misconduct, gross negligence, repeated negligence, or negligence in the practice of contracting resulting in significant danger to life or property; proceeded on the job without obtaining applicable permits and inspections; abandoned the project; and committed financial mismanagement or misconduct in the practice of contracting. The Respondent timely availed himself of the right to a formal proceeding and hearing. The cause was ultimately assigned to the undersigned Administrative Law Judge and this hearing ensued.
The cause came on for hearing, as noticed, at which the Petitioner presented the testimony of Barbara J. Clifton, the owner of the property and contracting party in question; Mike Martucci, an expert witness and son-in-law of the complaining owner; and Frank Abbott, an expert witness in the area of contracting and architecture. The Petitioner's Exhibit A, B, C, D, G, L, M, F, J, K, T, R, Q, and P were admitted into evidence. The Petitioner's Exhibits H and J were admitted as corroborative hearsay only, as was the Petitioner's Exhibit S. The Petitioner's Exhibit N and Exhibit O were admitted, except for the extraneous handwritten notations depicted thereon.
The Respondent presented his own testimony and the Respondent's Exhibits 1-6 were admitted into evidence.
Upon conclusion of the hearing, the parties elected to transcribe the proceedings of the December 5, 2001, hearing and avail themselves of the right to submit Proposed Recommended Order. Their Proposed Recommended Orders have been considered in the rendition of this Recommended Order.
FINDINGS OF FACT
The Respondent is a certified building contractor, holding License No. CBC016364, authorizing building contracting work in the State of Florida. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulation of the licensure of certified building contractors and
regulation of the practice of building contracting in the State of Florida in accordance with Chapter 489, Florida Statutes.
The Respondent entered into a building contract with Barbara Clifton for the construction of a new home on or about November 1997. The home is located at 9450 Northwest 133rd Lane, Chiefland, Florida. The contract price agreed upon between the parties for the construction of the home was
$68,953.00.
During the course of the construction, the Respondent accepted $49,714.75 in construction "draws" from the owner.
The Respondent engaged in construction of the home from late 1997, until March 1998. In March 1998, after a number of disputes arose between the Respondent and Ms. Clifton, she terminated the contract and ordered the Respondent to stay off the premises of the project. The Respondent had completed approximately 90 percent of the construction on the home at the time the contract was terminated and he was barred from the job site by the owner.
The home contained a number of defects and alleged defects at the time construction ceased. Evidence of some of the defects was established by the testimony of Ms. Clifton, the owner, and especially by that of the Petitioner's expert witness, Mr. Abbott. Testimony and exhibits presented by the Respondent showed that in some instances the defects testified
to by Mr. Abbott did not actually exist. The anchor bolts securing the bottom or sole plate to the slab/foundation wall, for instance, were shown to be in compliance with the building code by being three feet apart (on centers). Mr. Abbott had opined that they were 72 inches apart. Also, the photographic exhibits presented by the Respondent showed that the metal anchor straps securing the framing wall studs to the slab and foundation were indeed in place, although Mr. Abbott had opined that they were not. In any event, the testimony and evidence presented through Mr. Abbott as a witness established a number of plan deviations and structural defects in the home. The plan defects were as follows:
Garage floor elevation: There was a differential between the finished interior floor level of the house and the garage floor. The plans called for a 16-inch differential. The differential between the two floor levels in the house as built, however, was 48 inches. This deviation was made by the Respondent within ten days after the start of construction. It was because of a significant slope on the lot on the site of the house which necessitated, at the garage site, that the floor be some four feet below the floor level of the interior of the house in order to achieve a level floor without the use of fill dirt. The owner maintains this was done without notice to her and that she had not approved the change in the floor level and
was not consulted by the Respondent in this regard. The Respondent maintains that indeed he did explain the problem to the owner and that he offered the solution of "flipping" the garage portion of the house and plan to the other end of the house where less slope would be involved and the floor levels would more nearly approach the plan specifications.
Alternatively, he recommended the use of fill dirt to raise the level of the garage floor at the specified location of the garage, to overcome the effect of the slope of the lot at that location. He maintains that the owner refused to approve that approach and that therefore he had no choice but make the garage floor level four feet below that of the interior floor level of the house. In any event, the weight of the evidence shows that the owner and the Respondent did discuss the matter, although they may not have agreed as to the solution. There is, however, no record or evidence of an approved written change order with the owner's assent or any notice to the lending institution of the change from the plan's specifications in this regard.
Further, in this connection, the stair systems departed from the plan specifications. The stair system in the garage, of necessity, in order for the occupants of the house to be able to egress through the door opening into the garage, down to the garage floor had to use steps going down four feet. The steps
and associated landing, constructed with pressure-treated lumber, extended a significant distance out into the floor area of the garage. This was not called for by the plans either.
The garage stair thus obstructed the use of the garage and indeed denied access to housing full-sized vehicles in the garage. The Respondent should have foreseen this problem and at the very least, if the four-foot differential and floor height was necessary (which could have been alleviated by filling), should have re-oriented the stairs so that full-sized vehicles would not be barred from the use of the garage.
Additionally, there was a variation in stair height at the entry stair to the house which exceeded code tolerances and constituted a "trip step" which was a safety hazard at the top of the stairs, where they were attached to the landing, where entry and egress to the house were to be effected.
The attic stair, which was designed to fold up and down inside the garage evidently was constructed and installed according to specifications. This resulted in the attic stair, when folded down for use, being substantially above the lowered floor of the garage and therefore unusable. The Respondent should have foreseen this defect and taken steps to alleviate and accommodate it given his lowering of the garage floor, which was a departure from the plan specifications on the approved plans. In any event, the Respondent certainly should have had a
written change order signed by the owner approving a change in the garage floor level or approving the use of fill dirt to raise the floor level to accommodate the 16-inch differential specified in the approved plans. Neither was done. In fact, it is apparent that although the Respondent and the owner discussed the garage floor level problem, that the Respondent proceeded to lower the garage floor-level before the owner actually had knowledge that the Respondent was going to carry out that approach.
Ceiling height: The ceiling height was reduced from the nine feet specified in the plans to eight feet. The exterior eave heights established by specific dimensions in the plans were also reduced. The complainant owner indicates that she was not consulted prior to this change and denied approving it. The Respondent maintains that if he had intended constructing ceilings higher than an eight-foot ceiling, that a ten-foot ceiling dimension would have been employed since framing lumber is cut in standard eight, ten, or twelve-foot lengths and that it would be wasteful to cut ten-foot framing studs to construct a nine-foot ceiling. He maintains that the mention of nine feet for ceiling heights in the plans was an oversight or typographical error and that the parties actually intended eight-foot ceilings from the start of their discussions regarding construction of the house. He stated that the owner
had never complained to him of the use of eight-foot ceiling heights. The evidence, thus, does not clearly show that the Respondent departed from the owner's actual wishes in this regard. At the very least, however, the Respondent should have secured an approved written change order and provided notice to the lending institution with regard to this change from the plan specifications.
Chimney: The "architectural surround" device for the chimney was not installed. This is both a decorative and protective cover designed to surround the chimney flue and, in addition to being a decorative finish item for the roof of the house, to protect the chimney flue from wind forces which it was not designed to resist. This device should have been installed before the metal roofing was installed but that was not the case. The Respondent was forced to quit the job before the architectural surround device for the chimney had been installed. The Respondent maintains that he was at all times ready and willing to install it, even at his own expense, but the owner would not allow him back on the job site to finish this portion of the work. This left the metal chimney flue standing alone, exposed and not itself properly installed since it could be moved with slight pressure from the fingers of one hand some five to eight inches in deviation from the vertical position that it was supposed to occupy. This incorrect
installation of the chimney flue could be a hazard to life or property. If the Respondent had installed the architectural surround for the chimney at the proper time, before the installation of the metal roofing, the chimney installation would have been completed before the Respondent was ordered to leave the job site by the owner.
Structural Defects: The "stem wall" or foundation wall was specified in the plans to be three courses of eight- inch block, with a No. 5 steel vertical reinforcing bar embedded in the wall at 48-inch intervals (on centers). The Southern Building Code requires the vertical reinforcing bar to be hooked at the top and bottom where it connects to the concrete footing on the bottom of the stem wall or foundation wall and, on the top, where it hooks into the concrete slab. The code also requires that cells in block walls which contain the vertical reinforcing bars have to be filled solidly with poured concrete. The code also requires a horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab where it joins the top of the stem wall. The stem wall as it was actually built varies from three to six courses of block. The No. 5 vertical steel reinforcing bars were determined to be spaced at 64-inch intervals on center instead of the required 48-inch interval. They were not hooked at the top and it is not clear whether they were hooked at the bottom since Mr. Abbott was unable to view
the bottom of the wall because it was already constructed. However, at least one of the cells which was torn into and exposed had a vertical reinforcing rod but was not filled with concrete. This was on a corner of the house where it is perhaps more critical that the reinforcing rod be hooked to attach to the slab and that its cell be filled with poured concrete, which was not done. The required horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab called for by the code was omitted.
Exterior frame walls: Mr. Abbott opined that the building official considered SSTD 10-96 "check list" to be part of the permit package. It is more stringent in its requirements and supercedes the plans governing framing and anchorage requirements for exterior frame walls. The construction plans specified 2 x 4 framing for the walls, with metal connectors joining the studs and the bottom of sole plates together, with anchor bolts at six-foot intervals (on centers), securing the petition or exterior frame wall to the floor slab. Additionally, Mr. Abbott contends in his testimony that the "wind load checklist" requires the basic framing and the walls to be 2" x 6" material instead of 2" x 4" material, along with the framing clips where the studs join the top and bottom wood plates of the exterior wall partitions and that anchor bolts be spaced at 48 inches on center in securing that exterior wall
partition to the concrete slab. The walls, as built, were made of 2" x 4" stud material with metal framing clips installed joining the members, as well as anchor bolts approximately three feet apart or better than the specifications and the code required. This is shown by the Respondent's testimony, corroborated by his photographs and evidence showing the location of the anchor bolts and the metal framing clips joining the vertical studs in the wall to the sole plate or bottom plate of the wall. Thus, it would appear that the wall complies with the wind load checklist requirements, except that 2" x 4" material instead of 2" x 6" material was used. It is not clear, however, that there is actually a mandatory requirement that 2" x 6" material be used. Apparently, such is not required by the Southern Building Code. Thus, clear and convincing evidence has not been adduced to establish that wind load requirements have not been met by the wall as built.
The exterior siding installed on the walls, however, does not comply with the manufacturer's requirements or with the appropriate construction practice. The "hardie board" siding was called for in the specifications but some of the siding is hardie board artificial wood grain siding and some is Abco siding. The two different brands of siding resulted in two different wood grains or textures being used, which does not comply with the specifications and the owner's wishes.
Moreover, the siding was installed in some places with the butt joints of two siding boards joining at a location other than over a wall stud, making for a weak improperly supported joint between siding boards. Because of this the nail pattern for the siding was somewhat incorrect as well.
Metal Roofing: The metal roofing system employed on the house is Semco 5-V-Crimp manufactured by Southeastern Metals of Jacksonville, Florida. A complete, detailed manual for the product is part of the permit file. Absent specific standards in the building code, the manufacturer specifications govern the installation of the product and establish guidelines for inspection by the local officials. The cursory visual inspection by Mr. Abbott showed that the eave and valley connections and flashings at various penetrations are not as specified in the plans. Mr. Abbott established that the installation technique employed was shoddy and of poor quality, as evidenced by crowned and warped panels, potentially insecure flashing, and ill-fitted twisted crowned caps. Mr. Abbott opined that the sub-standard installation of the metal roof had not been subjected to a proper inspection and that the roof presented a potential danger to the property as constructed.
Finally, the chimney construction also represented a structural defect, as well as a deviation from the plans, as described above, and for the same reasons as described in the
above findings of fact also constituted a structural defect. The flue could easily be moved by light-hand pressure and was not braced to resist wind loads that might occur.
In summary, the Respondent has evidenced a lack of due care and a failure to act in a manner consistent with a reasonable standard of practice in the above-found defective particulars, although, not all the allegations and related opinions of the Petitioner's expert witnesses were established. Moreover, there is no doubt based on the evidence of record, including the Respondent's testimony, that the Levy County Building Department performed the required inspections up until the time work ceased (hence no final inspection) and either missed or ignored certain of the defects which should have been readily apparent, such as the roof. The construction defects resulted in a home that can not, as built, be an entirely safe structure. It was not constructed in conformity with the applicable building codes, to the extent that it was completed before work was ordered stopped by the owner. Although the Respondent freely offered to correct the defects, if allowed to come on the premises to do so, the fact remains that the above- found defects were established and committed.
During the course of this dispute, before the formal hearing, a civil action concerning the dispute, was filed by the owner against the Respondent. That action went to a mediation
process, the result of which was, in part, that the Respondent agreed to purchase the home from the owner, the complaining
witness Ms. Clifton.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
The Department has charged the Respondent in a six- count complaint with violations of Sections 489.129(1)(d), (n), (o), (p), (k), (h) and (2), Florida Statutes, by violating applicable building codes; committing incompetence or misconduct in the practice of contracting; committing gross negligence, repeated negligence, or negligence resulting a significant danger to life or property.
Counts four, five, and six of the Administrative Complaint alleging abandonment, financial misconduct, and missed inspections were voluntarily dismissed by the Petitioner. The evidence indicates that all the required inspections, up to the point where construction was stopped, were obtained from the County Building Department. The inspections apparently were sub-standard inasmuch as the defects were not discerned by the County Building Department and required by it to be corrected.
The Petitioner has the burden to establish the allegations against the Respondent by clear and convincing
evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Clear and convincing evidence is credible evidence of such weight that it produces in the mind of the trier of fact the firm belief that the allegations are true. The evidence of record clearly establishes that the Respondent failed to comply with the applicable building codes while constructing Ms. Clifton's home. He is thus guilty of the violations in the particulars found above, as provided for in Section 489.129(1)(d), Florida Statutes.
The evidence also shows that the Respondent committed negligence and incompetence in the practice of contracting resulting in a significant, potential danger to life or property and has, thus, violated Section 489.129(1)(o) and (n), Florida Statutes.
Rule 61G4-17.001, Florida Administrative Code, sets out the following penalty guidelines for the violations committed by the Respondent:
a. 489.129(1)(d)- $500 to $1,250.
b. 489.129(1)(n) - $250 to $1,000 and/or probation.
c. 489.129(1)(o) - $500 to $1,500 and
suspension or revocation.
Rule 61G4-17.002, Florida Administrative Code, outlines circumstances that may constitute aggravation or mitigation authorizing a modification of the suggested penalties. Significant among these, and pertinent to the issues
in this case, include un-relieved monetary or other damages to the licensee's customer and violations of building codes. The evidence shows that Ms. Clifton sustained significant financial damage as a result of the Respondent's actions, has not been recompensed for this and the Respondent has not taken corrective action without the payment of additional funds. Although
Ms. Clifton may not have paid out anymore to the Respondent in construction draws than is represented by the approximate 90 percent completion stage of the house, the fact remains that significant defects have been caused by the Respondent. The repair of them, should Ms. Clifton continue to own the house, will be at a significant cost and, without remediation of these defects the home will be a potential hazard to its inhabitants.
Accordingly, as a penalty for the violations, it is recommended that the Respondent pay the investigative cost for this proceeding, as well as an administrative fine of $1,500. It is further recommended that he be placed on probation for a term to be determined by the construction Industry Licensing Board, conditioned on an absence of such violations in the future. The Respondent should also be ordered to either pay restitution to Ms. Clifton of the amount required for repair of the above-found defects or, alternatively, to either repair the defects himself at his own expense or to purchase the home from
Ms. Clifton, as the Respondent has indicated he is willing to do.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore,
RECOMMENDED that a final order be entered by the Construction Industry Licensing Board finding the Respondent guilty of violating the above-referenced statutory provisions in the particulars found above; that the Respondent be required to pay investigative costs for this proceeding and an administrative fine in the amount of $1,500; and that the Respondent be placed on probation for a term to be determined by the Construction Industry Licensing Board. It is also recommended that the Respondent be required to pay restitution to Ms. Clifton for the cost required to repair the above-found defects or, alternatively, that he be required to repair the defects at his own expense, or thirdly, that he purchase the home from Ms. Clifton within 90 days of the entry of a final order herein.
DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF 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) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2002.
COPIES FURNISHED:
Robert A. Crabill, Esquire Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32388-2202
Joseph Lander, Esquire Post Office Box 2007
Cross City, Florida 32628
Kathleen O'Dowd, Executive Director Construction Industry Licensing Board
Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300
Jacksonville, Florida 32211-7467
Hardy L. Roberts, III, General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 13, 2002 | Agency Final Order | |
| Mar. 08, 2002 | Recommended Order | Petitioner proved that Respondent committed some of charged violations involving incompetence and negligence in practice of contracting; fine, probation, and restitution or re-purchase of house. |
