STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-5391

)

HUBERT H. GAMBLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 21, 1988, in Live Oak, Florida.

The Petitioner, the Department of Professional Regulation, Construction Industry Licensing Board (hereinafter referred to as the "Department"), was represented by David L. Swanson, Esquire. The Respondent, Hubert H. Gamble, was represented by J. Victor Africano, Esquire.

INTRODUCTION

The Department served an Administrative Complaint on the Respondent alleging that he had violated Section 489.129(1)(m), Florida Statutes. The Respondent executed an Election of Rights disputing the allegations of fact contained in the Administrative Complaint and requested an administrative hearing.

At the formal hearing the Department presented the testimony of James B. Sampson, Jr., Edwin Heron Pedrick, Ray Allen Bucklin, Ph.D., Dwight L. Snipes, the Respondent and Jerry Hicks. Mr. Pedrick was accepted as an expert in the construction of pre-engineered metal buildings, Dr. Bucklin was accepted as an expert in the construction of agricultural structures, Mr. Snipes was accepted as an expert in the construction of pre-engineered metal buildings and Mr. Hicks was accepted as an expert in the proper methods of construction and the duties and responsibilities of a general contractor. "DPR" exhibits 1A through 1J were accepted into evidence

The Respondent presented the testimony of Donald Wayne Gibbs, Don Gamble and Patrick Sura, and the Respondent testified on his own behalf. "Respondent's" exhibits 1 and 2 were accepted into evidence.

The parties also offered one joint exhibit. This exhibit was accepted into evidence.

At the conclusion of the formal hearing, the parties were given twenty days from the date of the formal hearing to file proposed recommended orders. The

proposed recommended orders were, therefore, required to be filed no later than 5:00 p.m., Monday, April 11, 1988. The Department filed its proposed recommended order on April 7, 1988. The Respondent did not file his proposed recommended order until April 20, 1988, nine days after the deadline agreed upon by the parties at the formal hearing. The Respondent may have had the benefit of reading the Department's proposed recommended order before preparing his own proposed recommended order. The Department has filed Petitioner's Motion to Strike Respondent's Proposed Recommended Order. Good cause having been given in support of the Motion, the Motion to Strike is hereby granted. No consideration will be given to the Respondent's proposed recommended order.

A ruling on each of the proposed findings of fact contained in the Department's proposed recommended order has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309.

   
   

2. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm.

   
   

3. The contract called for the payment of $42,052.00 for the construction of the shelter.

   
   

4. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows.

   
   

5. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia.

   
   

6. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property.

   
   

7. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts.

   
   

8. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer.

9. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer.

   
   

10. Construction of the shelter began in August, 1983, and was completed in September, 1983.

    
    

11. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground).

    
    

12. The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers.

    
    

13. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure.

    
    

14. The Respondent used all the materials furnished to him by Steel Concepts for the shelter.

    
    

15. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns.

    
    

16. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns.

    
    

17. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm.

    
    

18. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical.

    
    

19. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs.

    
    

20. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers.

    
    

21. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision.

22. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency.

    
    

23. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers.

    
    

24. This is the first complaint ever filed against the Respondent.

    
    

25. The Respondent attempted to resolve the matter with Mr. Sampson.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

27. This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Because the Respondent's license is at stake, the evidence to support the charges against the Respondent must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

28. Section 489.129(1), Florida Statutes, authorizes the Construction Industry Licensing Board to "revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor and impose an administrative fine not to exceed $5,000, place a contractor on probation, or reprimand or censure a contractor if the contractor ... is found guilty of ... any of the acts specified in Section 489.129(1)(a)-(m), Florida Statutes.

    
    

29. In the Administrative Complaint filed against the Respondent in this case, the Respondent has been charged with violating the following prohibited acts of Section 489.129(1), Florida Statutes:

    
    

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

    
    

30. The evidence in this case proved that the shelter erected by the Respondent on Mr. Sampson's property failed and was damaged during the storm of January 22, 1987, because of the lack of cross bracing of the columns and the failure to properly tighten the nuts on the anchor bolts located on the concrete piers. Both causes were attributable to the Respondent's incompetency in erecting the shelter.

    
    

31. The evidence proved that the Respondent should have checked with the manufacturer of the steel structure to insure that no cross bracing for the columns was needed or he should have added cross bracing to the columns.

    Because of the nature of the structure, it was not reasonable for the Respondent to rely on the manufacturer of the structure and simply put up the materials sent to the Respondent. As a contractor, the Respondent had a duty to ensure that the structure was properly constructed. The Respondent did not fulfill his

    responsibility. Instead, he merely assumed that the manufacturer had properly designed the structure properly.

    
    

32. The evidence also proved that the Respondent was responsible for properly assembling the structure, including properly tightening all nuts and bolts. The Respondent failed, however, to ensure that the nuts placed on the anchor bolts securing the columns to the concrete piers were all properly tightened.

    
    

33. Based upon the foregoing, it is concluded that the Respondent is guilty of violating Section 489.129(1)(m), Florida Statutes. The Respondent's construction of the shelter was incompetent.

    
    

34. Rule 21E-17.001, Florida Administrative Code, provides the following guideline to be used in disciplinary cases of this type, absent aggravating or mitigating circumstances:

    
    

    (19) 489.129(1)(m): Gross

    negligence, incompetence, and/or misconduct, fraud or deceit.

    (b) Causing monetary or other harm to licensee's customer, or physical harm to any person. First violation, $500 to

    $1500 fine; repeat violation, $1000 to

    $5000 and suspension or revocation.

    
    

35. This is the first complaint that the Respondent has been involved in. The Respondent's violation did cause monetary and other harm to his customer to a fairly significant degree. A fine of $1,500.00 is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the

Respondent violated Section 489.129(1)(m), Florida Statutes. It is further

RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case.

DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 5th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391

The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order.

It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

2 2 and 4.

3 11.

4 5-8.

5 10, 12-13 and 15-16.

6 17-19.

7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses.

COPIES FURNISHED:

David L. Swanson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

J. Victor Africano, Esquire Post Office Box 1450

Live Oak, Florida 32060

Fred Seely Executive Director

Post Office Box Jacksonville, Florida 32201

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005391

Orders for Case No: 87-005391