Pollock, a Hearing Officer with the Division of Administrative Hearings, in Ft. Myers, Florida on December 8, 1987. The issue for consideration in this case was whether Respondent's license as a certified general contractor should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Respondent: Richard T. Warnky, pro se
On March 3, 1987, Van B. Poole, then the Secretary of the Department of Professional Regulation, signed an Administrative Complaint in this case in which Respondent was alleged to be guilty of gross negligence, incompetence, misconduct, fraud, or deceit in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes. Respondent disputed the allegations contained in the Administrative Complaint by an Election of Rights form signed on April 14, 1987 and demanded a formal hearing. On April 22, 1987, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and assigned to Ms. Rigot who, on May 21, 1987, set the case for hearing on August 13, 1987 in Tallahassee. However, Petitioner moved to change venue and reschedule the final hearing and on August 5, 1987, Ms. Rigot entered the Order referred to above, changing the venue of the hearing to Ft. Myers and setting the hearing date for December 8, 1987, at which time the hearing was held by the undersigned to whom the matter had been assigned in the interim.
At the hearing, Petitioner presented the testimony of Jackson S. and Muriel Boyer, owners of the house constructed by the Respondent which forms the subject matter of this case; Al Gogel, licensing inspector for the City of Cape Coral; Richard H. Davenport, former building official for the City of Cape Coral; and Bernard Verse, a certified general contractor and expert in the field of contracting. Petitioner also introduced Petitioner's Exhibits 1 through 7.
Respondent testified in his own behalf and presented the testimony of Kevin N. Dililch; Thomas S. Mahlmeister, building inspector for the City of Cape Coral; and Mr. Boyer and Mr. Verse, who had testified for Petitioner. Respondent also introduced Respondent's Exhibits A through C, which were erroneously marked Respondent's Exhibits 1 through 3 at the hearing.
No transcript of the proceeding was furnished. Respondent submitted a written closing argument and Petitioner submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772.
On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or
$9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or
$19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made.
The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted.
From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started.
Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course
of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6.
On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block.
Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above.
When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards.
Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks.
Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used
appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5.
Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards.
Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry.
These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result.
The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom.
Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging.
Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that
nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe.
Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general.
Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day.
He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders.
Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed.
Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.
Section 120.57(1), Florida Statutes.
In the Administrative Complaint, Petitioner charges the Respondent with being guilty of gross negligence, incompetence, misconduct, fraud or deceit in the practice of contracting, in violation of Section 489.129(1)(m), Florida
Statutes. This provision permits the Board to discipline a license holder for a violation of any of the subsections thereunder, including that cited here.
Without question, a contractor cannot be expected to be at the construction site every minute of every day while construction is ongoing. However, good contracting procedure requires that the contractor provide proper supervision. The issue is not the number of visits or the amount of time spent on the site, but the quality of the supervision provided and the consistency thereof. If Respondent could not be present, it was up to him to provide supervision by someone who could properly indicate and enforce the appropriate standards for construction which were his ultimate responsibility. Here, notwithstanding Respondent's assurances that Mr. Sweebe is a competent mason, the clear and convincing evidence in the form of photographs and eye witness testimony indicates that the block work was improperly accomplished. Had Respondent been present more frequently, it is quite likely he would have insured that the appropriate work was accomplished and errors corrected immediately. He was not present, however, and his failure to be there was directly related to the substandard accomplishment of the work on the concrete blocks. As to the tie beam, Petitioner was present when the beam was poured by his subcontractor who may be responsible for the quality of the beam's concrete makeup. However, Respondent is responsible for the framing into which the beam was poured and it is clear that the framing was inadequate.
There is no evidence of record to establish that Respondent is guilty of fraud or deceit or, for that matter, misconduct to support disciplinary action. Instead, the evidence shows a continuing pattern of inattention to the supervisory responsibilities shouldered by the Respondent when he contracted with the Boyers to build their home. Notwithstanding the Respondent's work passed the scrutiny of the building inspectors, it was, nonetheless far below, in quality, the standard of the building community in the area, and constituted gross negligence. Respondent's performance in this instance demonstrated basic incompetence as a supervisor inconsistent with his standing as a certified general contractor. Prior disciplinary action for similar reasons does not appear to have been effective.
