STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-608

) LESTER CUNNINGHAM, JR., d/b/a ) ADDITIONS UNLIMITED, INC. )

)

Respondents. )

)

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 September 28, 1976 at Coral Gables, Florida.

APPEARANCES

For Petitioner: Barry S. Sinoff, Esquire

1010 Blackstone Building

229 East Bay Street Jacksonville, Florida 32202

For Respondents: Lewis W. Miles II, Esquire

2650 Biscayne Boulelvard, Suite 201

Miami, Florida 33137

By Administrative Complaint filed March 2, 1976, the FCILB seeks to suspend or otherwise discipline the license of Lester Cunningham, Jr., d/b/a Additions Unlimited, Inc. As grounds therefor it is alleged that Cunningham as qualifier for Additions Unlimited violated Section 10-22(d) of the Code of Metropolitan Dade County between February and November, 1975 and Section 468.112(2)(a) F.S. by departing from or disregarding approved plans and specifications of a construction contract between Respondent and Dr. and Mrs. Jacobs; and that during this same construction contract period Respondent diverted funds from said construction project to other purposes in violation of Section 10-22(c) of the Code of Metropolitan Dade County and Section 468.112(2)(a) and (f) F.S. Six witnesses were called by Petitioner, two witnesses, including Respondent, were called by Respondent, and ten exhibits were admitted into evidence.

FINDINGS OF FACT

1. In February, 1975 Dr. and Mrs. Jacobs entered into a contract with Additions Unlimited (AU) to construct an addition to theirs residence in Miami Beach. Lester Cunningham, Jr. is a licensed general contractor and the qualifying contractor of AU. The contract provided that the work be done in accordance with plans and specifications which were admitted into evidence as Exhibit 2. These plans provided, inter alia, that a wood decorative grill of 2"

   x 8" pressure treated lumber be installed over a window, or windows; that a cedar soffitt be used on the south wall of the addition; that exposed wood and wood in contact with masonry be pressure treated; and that walls of the new room match existing walls which were plaster; and that the floor of the addition be the same level as adjoining floor.

   
   

2. During construction the contractor installed 2 x 4 decorative screens in lieu of the 2 x 8 called for in the plans and specifications; a curved stucco soffitt was installed in lieu of the cedar soffitt; the floor of the addition was some 3/4" below the floor of the adjoining room; and a material with trade name of Woncote was used over gypsum wallboard in lieu of plaster that was on the walls of the original house.

   
   

3. After disagreement arose between the two parties the work was stopped in July, 1975. Thereafter the building permit was suspended by the City of Miami Beach because the work was not done in accordance with the plans and specifications.

   
   

4. During construction AU provided releases of liens for materials each time a draw was paid by the owner. Following the installation of a sliding glass door the supplier of the door, Floradale, Inc., called Jacobs for payment of the bill and filed notice of intent to file lien for this material. The bill for this door was subsequently paid by the contractor.

   
   

5. Some conflict of testimony was presented with regard to the installation of Woncote veneer plaster in lieu of plaster. The former is 1/16" thick and is installed over drywalls as a decorative finish similar to paint. It has the outward appearance of plaster and is applied similar to plaster except for the 1/16" thickness as compared to 1/2" thickness for plaster.

   
   

6. Had the building inspector conducted a lath inspection he would not have approved the substitute of Woncote as the plans existed. A professional engineer inspected the work at the request of the owner and he noted the discrepancies listed above with respect to the substitution of plaster for cedar soffitt, 2 x 4's in lieu of 2 x 8's, use of commercial grade lumber in lieu of pressure treated lumber as required by plans and specifications, and the discrepancy in the level of the floor in the addition.

   
   

7. One witness with extensive experience with Woncote considers this material to be comparable to plaster with the exception for use in areas requiring the fire retardant qualities of plaster (which was not here involved) and offered his expert opinion that the installation of Woncote was in accordance with the plans and specification. However, I find the preponderance of the evidence to be that the use of Woncote in lieu of plaster was not in compliance with the plans and specifications.

   
   

8. Respondent contended that the changes from 2 x 8 to 2 x 4 lumber was authorized by the owner but that his brother neglected to get the owners to initial the change on the plans as required by company policy. In view of the denial of the authorization by the owners this explanation is not acceptable.

   
   

9. Respondent further contends that the owners also authorized the use of stucco soffitt, which matched the rest of the house, but this too was disputed by the owners.

   
   

10. No dispute exists with respect to the floor of the addition being lower than the floor of the adjoining room. When pouring this floor the

    subcontractor failed to fully consider the existing sill from which a sliding door was removed after the new floor had been poured. Respondent offered to correct this defect by adding a leveling compound which is manufactured by Sacrete. He was not permitted to do so by the owners who had the correction made by another contractor.

    
    

11. Respondent contended that commercial grade lumber was used in areas not in contact with masonry and thereafter treated to comply with the building code because this lumber was superior to pressure treated and would take stain better than would the pressure treated lumber.

    
    

12. With respect to the allegations that Respondent diverted funds supplied by Jacobs to another project, this was flatly denied by Respondent and no evidence of such diversion was offered.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 468.112(1) F.S. provides in part:

    
    

    "The board may take appropriate disciplinary action if the contractor is found to be guilty of or has committed any one or more of the acts or omissions constituting cause for disciplinary action set out herein or adopted as rules and regulations by the board.

    
    

    1. The following acts constitute cause for disciplinary action:

       1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof."

          
          

14. Section 10-22(d) of the Building Code of Metropolitan Dade County makes it a violation of the code:

    
    

    "To depart from or disregard in any material respect the plans or specifications of a construction job without the consent of the owner or his duly authorized representative or of the building official as defined by the South Florida Building Code."

    
    

15. Here it can hardly be said that Respondent, in making the costly error in pouring the floor of the addition willfully poured this floor 3/4" lower than the adjoining floor. Willfulness imports intention and deliberate conduct.

    
    

16. While there is some question that the Respondent exhibited the same willfulness that would be required to prove the violation of a criminal statute, here we are not dealing with criminal provisions, but only with deliberate acts of the Respondent. The act of substituting 2 x 4's for 2 x 8's, of installing plaster soffitt in lieu of cedar, and of using commercial grade lumber in lieu of pressure treated lumber were deliberate acts of Respondent and consequently I find that Respondent willfully violated the provision of the Building Code of Metropolitan Dade County in deliberately substituting the above-noted materials

    from those described by the plans and specifications. This constitutes a violation of Section 468.112(2)(a) F.S.

    
    

17. It is further concluded that these substitutions were in some instances made in good faith on the part of the contractor and not with the intent of defrauding the owner.

    
    

18. With respect to the charge that as a result of Respondent diverting funds to other purposes he was unable to complete the Jacobs contract, no evidence of such diversion of funds was submitted. Respondent must therefore be found not guilty of this charge. It is therefore,

RECOMMENDED that the general contractor's licenses of Lester Cunningham, Jr. and Additions Unlimited be suspended for a period of sixty (60) days.

DONE and ENTERED this 14th day of October, 1976, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Barry S. Sinoff, Esquire 1010 Blackstone Building

229 E. Bay Street Jacksonville, Florida 32202

Lewis W. Miles II, Esquire 2650 Biscayne Blvd.

Suite 201

Miami, Florida 33137

================================================================= AGENCY FINAL ORDER

=================================================================

Mr. Lester Cunningham, Jr. Additions Unlimited, Inc. 5793 Commerce Land

S. Miami, Florida 33143

Dear Mr. Cunningham:

At a formal hearing held in Coral Gables, Florida on September 28, 1976, by the Division of Administrative Hearings, it was recommended that the general contractor's license of Lester Cunningham, Jr. and Additions Unlimited, Inc. be suspended for a period of sixty days.

On February 11, 1977, at the Florida Construction Industry Licensing Board's montly meeting, the Board voted to dismiss the case against you, therefore the Administrative Complaint is hereby dismissed. Your Certified General Contractor's License remains in full force and effect.

Sincerely,

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

J. K. LINNAN Executive Director

cc: Barry S. Sinoff, Esquire 1010 Blackstone Building

229 E. Bay Street Jacksonville, Florida 32202

Lewis W. Miles II, Esquire 2650 Biscayne Blvd.

Suite 201

Miami, Florida 33137

Docket for Case No: 76-000608

Orders for Case No: 76-000608