STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION/CONSTRUCTION INDUSTRY ) LICENSING BOARD, )

)

Petitioner, )

)

vs. )

)

LARRY A. THOMPSON, and ) CASE NO. 82-1041

)

HERBERT S. MCNAIRY, and ) CASE NO. 82-1043

)

GEORGE A. HUNT, and ) CASE NO. 82-1044

)

BILL A. HUNT, and ) CASE NO. 82-1045

)

JAMES R. BROWN, JR., ) CASE NO. 82-1046

)

Respondents. )

)

RECOMMENDED ORDER

These matters came on for hearing in Clearwater, Florida, on September 16 and 17, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Jane E. Heerema, Esquire

Stephanie Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: J. Michael Huey, Esquire

Mary Lou Rajchel, Esquire Post Office Box 1794 Tallahassee, Florida 32302

These cases arose on Petitioner's Administrative Complaints alleging that Respondents failed to adequately supervise a construction project and that they deliberately disregarded an applicable building code in their capacities as licensed general contractors. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. Respondents are certified general contractors and were so licensed at all times pertinent to these proceedings. Respondents Herbert S. McNairy,

   George A. Hunt, Jr., and James R. Brown, Jr., were qualifiers for George Hunt, Inc. at all times pertinent to the proceedings. Respondents Larry A. Thompson and Bill H. Hunt were qualifiers for Hunt Brothers Construction, Inc. at all times pertinent to the proceedings.

   
   

2. On or about March 17, 1979, George Hunt, Inc. entered into a contract with Don Olson Firestone, Inc. for the construction of a warehouse building at 2009 Sunnydale Blvd., Clearwater, Florida.

   
   

3. On or about April 3, 1979, Hunt Brothers Construction, Inc. applied for and received a building permit for the construction of the building from the Pinellas County Building Department. The permit was signed by Respondent, Bill Hunt, qualifier for Hunt Brothers Construction, Inc. Respondent, Herbert S. McNairy participated in discussions with the architect and was a supervisor of construction.

   
   

4. Immediately prior to the permittee's signature line, the permit document states: "It is understood that any deviation from the original document will render this permit issued under this application null and void, unless approved by the building director." Elsewhere on the document, it is stated that "permits and applications are true representations of construction to be accomplished under this permit. It is understood that any deviation from the original document will render this permit issued under this application null and void unless the changes are approved by the building department."

   
   

5. The plans for the warehouse were prepared by Frank Norris, registered architect. The plans called for concrete walls at the front and rear of the structure (north and south ends, respectively) and a concrete wall in the center of the structure, dividing it into two rooms. A structural steel roofing system was specified consisting of trusses mounted on columns and connected by joists welded to the top chords of the trusses. These joists were to be welded to the trusses and welded to steel plates located in the concrete walls.

   
   

6. The plans did not contain a drawing or specifications for the trusses. The plans called for end-bracing between the trusses and specified the steel to be used to accomplish this bracing. The joists specified were 22H7 joists--22 inches in depth, 50,000 pounds per square inch tensile strength. Cross-bridging was specified between the joists.

   
   

7. Pursuant to a verbal contract, State Steel Erectors, Inc. was hired to erect the structural steel for the roof, i.e., mount the trusses on the columns and connect (weld) the joists to the trusses and to the steel plates in the walls. The steel was fabricated by George Hunt, Inc. in lieu of a steel fabricator subcontractor.

   
   

8. The Southern Standard Building Code (1973 Edition) had been adopted as the Pinellas County Building Code at the time of this construction. Inspectors for the building department inspected the construction as follows:

   
   

   INSPECTION DATE

   Footing & Columns April 6-10-12, 1979

   Pilaster April 12, 1979

   Rough Plumbing May 8, 18, 1979

   Lintel May 10, 1979

   Slab May 30, 1979

   The roofing system would have been inspected during the framing inspection, after completion of all framing in the building. Inspections are requested by the contractor and there had been no request for a framing inspection of this building. Due to additional framing to be completed in the interior of the building, construction had not progressed to a point where a framing inspection was called for.

   
   

9. On or about June 4, 1979, while the deck subcontractor, Decks, Inc., was applying a gypsum deck on the top of the roofing structure on the north end of the building, the structure on that end collapsed, killing one workman and injuring several others. The scene of the accident was visited by Frank Morris; Tom Jones, President of State Steel Erectors; Robert Hostetler, Chief Building Official for Pinellas County; and O. E. Olsen, an engineer hired by the insurance carrier for State Steel Erectors, Inc.

   
   

10. Inspection of the scene following the building collapse and subsequent investigation revealed the following: (a) The joists on the north end of the building were 20 J7 joists--having a depth of 20 inches and a tensile strength of 36,000 pounds per square inch. (b) Straight bridging was installed between the joists. (c) None of the trusses were end-braced. (d) Some of the joists in the north end of the building were not welded to the trusses or the walls. (e) Joists of varying depths were installed in the south end of the building. (f) Some joists in the south end of the building had been spliced.

    
    

11. TRUSSES: The architect's plans called for bottom-bearing trusses resting on steel columns with vertical x-bracing between the ends of all the trusses. The roof failure occurred as a result of lateral movement of the point where the trusses were welded to the columns. That "point" amounted to a weak joint which buckled on both of the trusses in the north section of the building, causing the collapse. The vertical bracing which was omitted from the structure was the only feature which would have kept the trusses plumb with the columns, and the roof failure would not have occurred if the trusses had been end-braced as required. Without drawing, a contractor or subcontractor would not have known that bracing of the trusses was required. However, it was not possible to safely build the warehouse without bracing of the trusses as was required by the plans. In the south section of the building, where roofing work had not begun and where truss-bracing had also been omitted, the trusses showed lateral deviation off of the columns, indicating the beginning of failure. The failure to brace any of the 16 truss ends as called for in the plans was not an inadvertent deviation from the plans but was an omission of a principal member of the steel structure.

    
    

12. JOISTS: The plans called for 33 joists in the north part of the warehouse and 44 in the south. The joists were to be size 22H7. The specific size was called for so that the joists could carry the design load. The design load is the load of the structure and the applied live load called for by Steel Joist Institute specifications which are adopted in the Southern Standard Building Code. The first number designation is the depth of the joist. The letter designates strength. H means steel which yields 50,000 pounds per square inch yield point. J strength yields 36,000 pounds per square inch yield point. The last number refers to a Steel Joist Institute load table. J strength is no longer made although it was commonly used at the time the joists used in the warehouse were built.

    
    

13. In the north part of the building, two joists measured 20 inches rather than 22 inches as called for in the plans. In the south, joists ranged from 14 to 20 inches in depth. The strength of joists is roughly proportionate

    to their depth. Mr. Olsen directed that pieces of two 20 inch joists from the collapsed portion of the building be cut and sent to Law Engineering Testing in Tampa, which sent the samples to their Atlanta office for steel tensile testing to determine whether they were H series, as called for, or J series. The tests showed that the steel was of the J series rather than that of the H series required in the plan.

    
    

14. Because one cannot visually observe whether unmarked steel is H or J series, the usual practice is to assume used, unmarked steel is of the J series, rather than to attempt to test it. In this case, that assumption would have been that two 20J7 joists were used in the north portion of the warehouse and that, in the south, 14 to 20J7 joists were used, all instead of 22H7 joists as specified in the plans.

    
    

15. Some joists in the southern part of the building were spliced. Splicing is normally accomplished only under shop conditions; otherwise, the welders and the materials used are generally not adequate. Inadequate procedures were evident in the warehouse joist splicing where the welding had burned holes through chord members. If joists were to be spliced, plans would be required to show the splices. These plans did not call for spliced joists. Additionally, if joists are to be spliced, the Southern Standard Building Code requires that they be butt-welded, which allows the joists to have the strength of a continuous member. Joists in this project were lapsed-spliced which made it impossible to develop the full strength required of the spliced joists.

    
    

16. The facts that none of the joists used in the warehouse were marked as to weight, that they were used steel and thus more likely to be J series and that they were poorly, incorrectly spliced and of varying, incorrect depths, establish that deviation from the specifications was substantial and material.

    
    

17. HORIZONTAL BRACING: The plans called for x-bridging in all the steel joists but horizontal bridging was used on the structure. However, the Steel Joist Institute accepts either x-bridging or horizontal bridging.

    
    

18. The Pinellas County Building Code requires that the contractor notify the building department prior to changing the design of the building from the plans and specifications in the building department's file. In this case, the Pinellas County Building Department never approved any deviations from the plans and specifications prior to the collapse on June 4, 1979.

    
    

    CONCLUSIONS OF LAW

    
    

19. Subsection 489.129(1)(m), Florida Statutes (1981) provides that Petitioner may take disciplinary action against a contractor for the following:

    
    

    (m) Upon proof and continued evidence that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

20. Respondents are not charged under the above provision, which was not adopted until 1979, after the relevant period. Thus, the question of contractor negligence is not at issue here.

21. Subsection 489.119(2), Florida Statutes (1981), provides in part:

    
    

    (2) If the applicant proposes to

    engage in contracting as a partnership, corporation, business trust, or other legal entity, the applicant shall apply through a qualifying agent; . . . Such application shall also show that the qualifying agent is legally qualified to act for the business organization

    in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization.

    
    

22. The above provision sets forth procedures for business organizations to become contractors. It does not establish an affirmative duty for qualifying agents to adequately supervise construction projects. Therefore, charges relating to alleged violation of this provision should be dismissed. Such dismissal was moved for by counsel for Respondents and the motion is hereby recommended to be granted.

    
    

23. Subsection 489.129(1), Florida Statutes (1981), provides in part:

    
    

    1. The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand

       or censure, a contractor if the contractor is found guilty of any of the following acts:

       * * *

       (d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or

       of any municipalities or counties thereof.

       
       

24. Respondents are charged with violating the above provision, which was in effect during the relevant period. The evidence established that the Pinellas County Building Code was applicable to the construction project involved herein. It was further established that Respondents, or some of them, violated Section 114 of this code by deviating from plans and drawings submitted to the Pinellas County Building Department in the following respects: (1) Trusses were not braced as required by the architect's plans; (2) Joists in the front section of the warehouse were 20H7 instead of 22H7 as were required by the architect's plans; (3) Joists in the rear section varied from 14 to 20 inches, contrary to the architect's plans which required 22H7 joists; (4) Joists in the rear section had been spliced in order to cover the required span; (5) Straight bridging was substituted for cross bridging which was required in the architect's plans.

    
    

25. The extensive nature of these deviations cannot be attributed to inadvertence or oversight. Rather, these material and significant deviations establish that Respondents, or some of them, willfully disregarded the

    applicable building code in violation of Subsection 489.129(1)(d), Florida Statutes, quoted above.

    
    

26. The evidence established that Respondents Bill Hunt, who pulled the permit, and Herbert McNairy, who was the architect's contact and a construction supervisor were responsible for this project. Because of the deliberate violation of the applicable building code, their licenses as general contractors should be revoked.

    
    

27. The remaining Respondents had no active part in this project. The company has numerous projects, and no single contractor can he held responsible for all of them. Therefore, charges against Respondents Thompson, Brown and George A. Hunt, Jr. should be dismissed. Such dismissal was moved for by counsel for Respondents and this motion is hereby recommended to be granted.

    
    

28. Petitioner's Exhibit 5 is received into evidence. This evidence is highly credible and there is no indication that any of the tests on the steel were improperly performed or that the samples tested were not those submitted. Respondents' remaining motions, to the extent they are not herein addressed, are denied.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Petitioner enter its Final Order revoking the contractor's licenses of Respondents Herbert S. McNairy and Bill H. Hunt, and that the Administrative Complaints as to Respondents Larry A. Thompson, George A. Hunt, Jr. and James R. Brown, Jr. be DISMISSED.

DONE and ENTERED this 2nd day of November, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1982.

COPIES FURNISHED:

Jane E. Heerema, Esquire Stephanie Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

J. Michael Huey, Esquire Mary Lou Rajchel, Esquire Post Office Box 1794 Tallahassee, Florida 32302

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional

Regulation

Post Office Box 2 Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION

Petitioner,

vs. DPR Case No. 0010508

DOAH Case No. 82-1041

LARRY A THOMPSON, CG CA000105 HUNT BROTHERS CONSTRUCTION, INC.

805 Cardinal Avenue

Palm Harbour, Florida 33563

LAT CONSTRUCTION, INC. CG C000105

Post Office Box 1027

460 Pinehill Road

Port Richey, Florida 33568

Respondent.

/

FINAL ORDER

This matter came to be heard by the Construction Industry Licensing Board on February 10, 1983, in Orlando, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the

Board. Both the Petitioner and the Respondent filed exceptions to the entire Recommended Order which were reviewed by the Board. However, Counsel for Respondent (who represented all five Respondents in the consolidated hearing before the Division of Administrative Hearings) stated to the Board that he did not dispute the Findings of Fact and Conclusions of Law in the Recommended Order as they pertained to Respondent Thompson. Counsel for Petitioner and Respondent appeared before the Board. Upon consideration of the Recommended Order, Exceptions, and following a review of the complete record of the proceedings, it is ORDERED:

1. The Findings of Fact in the Recommended Order are approved and adopted and incorporated herein by reference. The Board adopts the additional Findings of Fact filed by Petitioner (attached here to as Exhibit B and incorporated herein by reference) as said additional Findings of Fact are supported by substantial competent evidence on the record and are not in conflict with the Findings of Fact in the Recommended Order.

   
   

2. The Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein by reference as they pertain to Respondent Thompson, with the exception of the Conclusion of Law finding that a contractor qualifying a corporation is not responsible for the supervision of construction undertaken by the corporation and dismissing the charge against Respondent Thompson. The Board rejects this Conclusion of Law and adopts Paragraph 1 of Petitioner's Exceptions to the Conclusions of Law, in its entirety, and Paragraphs 2 and 3 of the Conclusions of Law to the extent that the Board concludes that all qualifiers of a corporation are responsible under the terms of Section 489.119(2), Florida Statutes (1981) [formerly Section 468.107(2), Florida Statutes (1977)] and Section 489.105(3) (1981) [formerly Section 468.102(1), Florida Statutes (1977)] for the supervision of construction undertaken by the corporation. A copy of Petitioner's Exceptions to the Conclusions of Law is attached hereto and said Conclusions of Law are incorporated herein by reference, as stated above. The Board therefore finds that Respondent Thompson did violate Section 489.129(1)(j), Florida Statutes (1981) [formerly Section 468.112(2)(g), Florida Statutes (1978 Supp.)], due to his failure to comply with the terms of Section 489.119(2), Florida Statutes (1981) [formerly Section 468.107(2), Florida Statutes (1977)) and Section 489.105(3), Florida Statutes (1981) [formerly Section 468.102(1), Florida Statutes (1977)].

THEREFORE it is ORDERED and ADJUDGED that the Recommendation in the Recommended Order be and the same is hereby rejected, and that the Respondent be and is hereby officially reprimanded.

DONE and ORDERED this 1st day of March, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

JOHN HENRY JONES

Chairman

Docket for Case No: 82-001041

Orders for Case No: 82-001041