Judges: ROBERT E. MEALE
Agency: Department of Business and Professional Regulation
Latest Update: May 20, 1988
Summary: $500 fine for general contractor's gross negligence in failing to pour concrete as design required into concrete block cell and failing to fill lintel.
88-0565.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0565
)
WILLIAM L. WALKER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled action was held on May 3, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows:
For Petitioner: David L. Swanson, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
For Respondent: William L. Walker, pro se
4050 Citrus Street
Kissimmee, Florida 32741 BACKGROUND
On September 17, 1987, Petitioner filed an Administrative Complaint against Respondent with respect to a contract that Respondent entered into with Floyd Minks in June, 1986. The Administrative Complaint alleged that Respondent failed to properly supervise the jobsite activities, in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), and committed gross negligence, incompetence, or misconduct in connection with the job, in violation of Section 489.129(1)(m), Florida Statutes.
Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing.
At the hearing, Petitioner called four witnesses and offered into evidence six exhibits. Respondent called one witness, himself, and offered into evidence no exhibits. All exhibits were admitted into evidence.
Petitioner filed a proposed recommended order. All of Petitioner's proposed findings are adopted.
FINDINGS OF FACT
Respondent is and at all material times has been a registered general contractor in the State of Florida. He holds license number RG 0045864. At all material times, Respondent has been the qualifying agent for Bill Walker Construction Co.
On June 30, 1986, Respondent and Bill Walker Construction Company entered into a contract with Floyd Minks for the construction of an addition to a building owned by Mr. Minks and located at 2700 Partin Settlement Road, Kissimmee, Florida.
The construction to be performed by Respondent was to follow a set of plans that had been drawn up by architects whom Mr. Minks had previously retained.
The architects' plans called for Respondent to fill with concrete the concrete block cell that formed the column immediately adjacent to the door permitting vehicular access to the building. The architects' plans also called for Respondent to fill with concrete the precast lintel over the above-described doorway.
Respondent failed to pour any concrete into the above-described concrete block cell and failed to fill completely the above-described lintel with concrete. The failure to follow the plans in these regards rendered the building addition structurally unsound. The failure to fill the concrete block cell rendered the doorway more likely to collapse as a result of the collision involving a vehicle carelessly driven through the doorway. The failure to fill completely the lintel makes it impossible to anchor the bar joists, which leaves the roof insufficiently secured to the building.
The concrete block cell and lintel have still not been filled with concrete. However, Mr. Minks has never demanded that Respondent take care of these matters, and Respondent has always been willing to do so at his expense.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has jurisdiction over the disciplining of licenses of registered general contractors, including those serving as qualifying agents. Section 489.129, Florida Statutes.
Discipline against a license may be imposed if a contractor is guilty of fraud or deceit or gross negligence, incompetence, or misconduct in the practice of contracting. Section 489.129(1)(m) , Florida Statutes.
Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has proven that Respondent is guilty of gross negligence or incompetency in failing to fill the concrete block column and lintel with concrete.
Rule 21E-17.001(19)(a), Florida Administrative Code, provides for a normal penalty range of a fine of $250 and $750 for the first violation of gross negligence or incompetence, as long as there is no evidence of monetary or other harm to the owner or physical harm to any person. There is no such evidence in this case.
RECOMMENDATION
In view of the foregoing, it is hereby
RECOMMENDED that a Final Order be entered finding Respondent guilty of gross negligence or incompetency in the practice of contracting and imposing an administrative fine of $500.
ENTERED this 20th day of May, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
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 20th day of May, 1988.
COPIES FURNISHED:
David L. Swanson, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William L. Walker 4050 Citrus Street
Kissimmee, Florida 32741
Fred Seeley Executive Director
Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 88-000565
Orders for Case No: 88-000565
| Issue Date |
Document |
Summary |
|
May 20, 1988 |
Recommended Order
|
$500 fine for general contractor's gross negligence in failing to pour concrete as design required into concrete block cell and failing to fill lintel.
|
