STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO: 86-4429

)

GEORGE E. FELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 10, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: G. Vincent Soto, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: George E. Feld, pro se

2131 Northeast 205th Street North Miami, Florida 33179

BACKGROUND

By administrative complaint filed on June 24, 1986, petitioner, Department of Professional Regulation, Construction Industry Licensing Board, has charged that respondent, George E. Feld, a certified general contractor, had violated various provisions within Chapter 489, Florida Statutes. Generally, petitioner has alleged that in February 1985, respondent contracted to build a recreational building for the City of Tamarac, and that due to respondent's "gross negligence and/or incompetence," serious structural deficiencies occurred. It is further alleged that respondent subcontracted the shell and sewer work on the job to an unlicensed individual and unqualified firm. Because of this, petitioner contends that respondent committed gross negligence and/or incompetency in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes (1985), and aided and abetted an uncertified or unregistered person to evade the provisions of the law in violation of Subsection 489.129(1)(e), Florida Statutes (1985).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp.1986). The matter was referred to the Division of Administrative Hearings by petitioner on November 10, 1986, with a request that a hearing be assigned to conduct a formal hearing. By notice of hearing dated January 2, 1987, the final hearing was scheduled for March 10, 1987, in Fort Lauderdale, Florida.

At final hearing petitioner presented the testimony of David P. McCall, Robert B. Jahn and George E. Fink and offered petitioner's exhibits 1-9. All were received in evidence. Respondent testified on his own behalf and offered respondent's exhibits A-D which were received in evidence. In addition, the undersigned granted a request of the parties to take official notice of Sections 305.3(b) and 2906.15 of the South Florida Building Code. However, copies of other sections of the Code were late-filed with the undersigned. They are discussed in the conclusions of law portion of this order.

The transcript of hearing was filed on March 20, 1987. Proposed findings of fact and conclusions of law were filed by petitioner on April 3, 1987. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent's license as a certified general contractor should be disciplined for the alleged violations set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, George E. Feld, held certified general contractor license number CG C021801 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. Feld has been a licensed contractor in Florida since June 1982. He has qualified George E. Feld and Associates, Inc. under his license and operates the business at 2131 Northeast 205th Street, North Miami Beach, Florida.

   
   

2. After submitting the low bid, on or about March 1, 1985 George Feld and Associates, Inc. entered into a contract with the City of Tamarac to construct a 5,500 square foot recreation building for the City. The negotiated contract price was $195,950. The contract called for commencement of the project within ten days after the contract was signed and completion by July 27, 1985.

   
   

3. Sometime prior to March 20, 1985, Feld met one David P. McCall and Marvin Weiss at a motel in North Miami. McCall was interested in doing work on the Tamarac project. He gave Feld a business card with the name "Arrow Head Development Corporation, Inc." printed on it, and which stated the firm was "state certified" and "licensed" as a general contractor. Feld also noted that Weiss held a general contractor's license, and he assumed that McCall and Weiss were working together. Relying on McCall's card, and later representations by McCall, but without checking with petitioner's office to verify if McCall or Arrow Head were licensed or qualified, Feld agreed to subcontract out the shell and sewer work on the Tamarac project to Arrow Head. To this end, Feld and Arrow Head entered into two contracts on March 20, 1985, for Arrow Head to perform the shell and sewer work. On June 21, 1985 McCall submitted a written "proposal" to Feld for the shell work on the job. The proposal had the following words and numbers typed on its face: "State License Number: #CGC

   05961." It was not disclosed whose license number this was. Although McCall denied typing this document (because he does not personally know how to type), he did not deny that it was placed on the document at his direction or with his knowledge. It was not until sometime later that Feld learned that Arrow Head was not qualified by any licensee. Because of his mistaken belief that Arrow Head was qualified, Feld had never qualified that firm. Even so, there was no evidence that Feld intended to allow an unqualified firm to perform the work.

   
   

4. Work proceeded on a timely basis as required by the contract. Feld visited the job site daily, and supervised all activities, including those performed by McCall. He routinely inspected the work, verified that it was being done according to specifications, and made corrections where needed.

   
   

5. The job specifications called for trusses that were over forty feet in length. Because of this, and pursuant to the South Florida Building Code (Code), it was necessary for the City to hire an engineer to oversee their installation. The City hired one George Fink as engineer to supervise this phase of the project. However, Fink's responsibility was limited to just that, and once the installation was completed, Feld resumed responsibility for the remainder of the job.

   
   

6. Trusses are a manufactured roof member and may vary in length, height and pitch. In this case, they were designed in the form of a cathedral roof, and were in excess of forty-seven feet in length. Further, because of the building's design, there were a number of trusses to be installed. The installation of the trusses was begun around 9:00 a.m. on Friday, June 27, 1985 and finished by 2:00 p.m. that same day. As required by the Code, Fink was present and supervised the installation of the trusses on the top of the shell. He confirmed at hearing that they were properly installed.

   
   

7. The problem herein arose early that day when Fink had noticed that the building plans did not provide for lateral bracing of the trusses. However, according to Fink, this was not unusual since plans do not normally provide for lateral bracing. Even so, Fink told an unnamed person who "appeared to be the fellow running the erection crew" that lateral bracing should be added to the center and two side core members and that the four trusses on each end needed additional bracing. Fink also suggested to this unnamed individual that sheathing be added "as soon as possible" to the top and outside of the trusses to give added stability and protect them from wind damage and the like. In this regard, at hearing Fink conceded that it was "reasonable" for a contractor to erect trusses one day, and to place sheathing on them the following work day. Fink thought sheathing to be particularly necessary on this job since the trusses were high pitched," "long in length," and there were "no gables or anything in between to ... add any other support." By the end of the work day, the crew had placed the proper bracing on the trusses. However, no sheathing was applied.

   
   

8. According to Fink, who was accepted as an expert in this proceeding, a prudent and competent contractor would be aware of the need for sheathing and added bracing because of the potential hazard of high winds caused by late afternoon thunderstorms in South Florida. By failing to place sheathing on the roof, Fink opined that Feld was grossly negligent and incompetent in the practice of construction on the Tamarac project.

   
   

9. Sometime on late Sunday night or early Monday morning, most of the trusses on the roof collapsed. Some fell on an electrical wire running to the building. However, no injuries occurred. Only five trusses on the north side

   of the building remained in place. The City of Tamarac then filed a complaint with petitioner against Feld. The cause of the collapse was not disclosed, and even Fink was unable to state that the lack of sheathing was the cause of the accident. There was no evidence that strong winds or thunderstorms occurred on the night the trusses fell, or that bad weather was predicted when the work day ended on Friday afternoon.

   
   

10. Feld acknowledged that no sheathing was placed on the trusses. He attributed this to the fact that the construction crew stopped work at 3:30 on Friday afternoon, and did not return to the job site until the following Monday morning. He intended to install the sheathing the following Monday but by then it was too late. This was in accord with the standard enunciated by Fink that it was not unreasonable for a contractor to erect trusses one day, and to place sheathing on them the following work day. Feld also stated that he was well aware of the need for bracing and sheathing on trusses by virtue of his long experience in the construction business. Feld hinted, but did not prove, that McCall may have been responsible for the accident because of bad blood between the two. In any event, he doubted that wind would have caused the trusses in question to fall. Finally, Feld pointed out that, even though city inspectors were present, no one had come to him on Friday afternoon and said the trusses might collapse over the weekend without sheathing.

    
    

11. Feld is a graduate of the University of Buenos Aires with a degree in architecture, and has been engaged in the construction/architecture business for twenty-two years. He presently is an instructor of construction at Miami-Dade Community College. There is no evidence he has ever been the subject of a disciplinary action by the Board on any other occasion.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter and the par ties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp.1986).

    
    

13. There are two statutory charges against Feld. First, petitioner contends that by using David McCall and Arrow Head Development Corporation, Inc. on the job, Feld aided and abetted an unlicensed person to evade the provisions of Chapter 489 in contravention of Subsection 489.129(1)(e), Florida Statutes (1985). Secondly, it is contended that Feld is guilty of "gross negligence and/or incompetence in (his) practice of contracting" within the meaning of Subsection 489.129(1)(m), Florida Statutes (1985) while working on the Tamarac project. These charges will be discussed separately hereinafter.

    
    

14. It is first alleged that by failing to verify Arrow Head's licensure status, and by accepting only the representations of McCall, without further inquiry, Feld violated Subsection 489.129(1)(e) in that he aided and abetted that firm in evading the provisions of Chapter 489. However, in order for Feld to be found guilty of aiding and abetting, there must be evidence not only that he made it possible for McCall (Arrow Head) to perform such unlicensed work, but that he intended that such unlicensed work be performed. Blume v. Department of Professional Regulation, Construction Industry Licensing Board, 489 So.2d 880, 882 (Fla.2nd DCA 1986). There being an absence of any evidence to show that Feld intended for such unlicensed work to be performed, this charge must fail. Id. at 882.

    
    

15. The remaining charge concerns an allegation that Feld was guilty of gross negligence or incompetence within the meaning of Subsection 439.129

    (1)(m), Florida Statutes (1985), by failing to place sheathing on the trusses prior to their collapse. To support this charge, the expert testimony of George Fink was offered, who opined Feld was grossly negligent and incompetent by failing to place sheathing on the trusses after being reminded to do so by Fink. The term "gross negligence" is not defined in Chapter 489. However, the term is defined in Black's Law Dictionary, Rev. Fourth Edition (1968), as follows:

    
    

    The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another; such a gross want of care and regard for the rights of others as to justify the presumption of willfulness and wantonness.

    
    

    Stated in another manner, "if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or 'clear and present,' that negligence is gross." Bridges v. Speer, 79 So.2d 679, 682 (Fla. 1955). Here there was no evidence that Feld intentionally failed to perform a duty in reckless disregard of the consequences. Moreover, there was no showing that Feld's conduct was such that the likelihood of injury to others was known by Feld to be clear and imminent. This is particularly true since Feld intended to place sheathing on the trusses the next working day (the following Monday) after their installation, which conformed with the industry practice, 1/ and no one had predicted that storms or high winds would occur before the sheathing could be installed on Monday morning. Even the city inspectors on the job site did not voice such a warning. At the same time, the charge that Feld was "incompetent must also fail since this implies Feld lacked the ability, qualifications or fitness to perform his duties as a contractor, a showing not supported by the record. The complaint must accordingly be dismissed with prejudice.

    
    

16. A final matter requiring comment is that portion of the South Florida Building Code of which the under signed has taken official notice. At hearing, the parties requested that Sections 305.3(b) and 2906.15 be officially noticed. Thereafter, copies of Sections 402.4 and 402.8 and a section entitled "Standard Conditions for Trusses" were late-filed by petitioner. Since these sections were not requested for official recognition at hearing, they have been disregarded. See, Section 120.61, Florida Statutes (1985).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint against George E. Feld be

DISMISSED, with prejudice.

DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987.

ENDNOTE

1/ There was no evidence, or indeed suggestion by any witness, that sheathing was immediately required to prevent a collapse. If it were, then Fink's testimony that a work day interval was a reasonable time in which to perform this task would have to be rejected. The fact that the next working day fell on a Monday is immaterial, for no one established that unsheathed trusses are safe for one night, but not for three.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1080

1. Covered in finding of fact 1.

2. Covered in finding of fact 1.

3. Covered in finding of fact 2.

4. Partially covered in finding of fact 8. That portion which states that the "structural deficiencies" resulted in the collapse of the truss assembly is rejected since there is no evidence as to what the cause of the collapse was.

5. Covered in finding of fact 7.

6. Covered in finding of fact 7.

7. Covered in finding of fact 8.

8. Covered in finding of fact 10.

9. Covered in finding of fact 10.

10. Rejected as being unreliable hearsay.

11. Covered in finding of fact 3.

12. Covered in finding of fact 3.

13. Covered in finding of fact 3.

COPIES FURNISHED:

G. Vincent Soto, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Mr. George E. Feld 2131 N.E. 205th Street

North Miami Beach, Florida 33179

Fred Seeley, Executive Director Florida Construction Industry Licensing Board

Post Office Box 2 Jacksonville, Florida 32201

Christine Carsky, Esquire 2245 East Sunrise Boulevard Penthouse East

Fort Lauderdale, Florida 33304

Docket for Case No: 86-004429

Orders for Case No: 86-004429