vs. ) CASE NO. 88-1618
DAVID J. QUIGLEY, JR., )
Respondent. )
Pursuant to notice, final hearing in the above-styled case was held on July 7, 1988, in Melbourne, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
For Petitioner: Belinda H. Miller, Esquire
G. W. Harrell, Esquire
For Respondent: Elting L. Storms, Esquire
780 South Apollo Boulevard Atrium Professional Centre Post Office Box 1376 Melbourne, Florida 32902-1376
On September 17, 1987, Petitioner filed an Administrative Complaint against Respondent with respect to a contracting job undertaken by Quigley Homes, Inc., for which Respondent was the qualifying agent. The Administrative Complaint alleges that Quigley Homes, Inc. entered into a contract in May, 1985, with Ronald McCarthy for the construction of a house in Indialantic, Florida. The Administrative Complaint alleges that Respondent failed to perform in a reasonably timely manner or abandoned the job, in violation to Section 489.129(1)(m) and (k), Florida Statutes, and failed to supervise properly the jobsite activities, in violation of Sections 489.129(1)(m) and (j), 489.119, and 489.105(4), Florida Statutes.
On January 25, 1988, 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 eight exhibits. Respondent called two witnesses, including himself, and offered into evidence 18 exhibits. All exhibits were admitted into evidence.
The transcript was filed on August 2, 1988. Petitioner and Respondent each filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.
Respondent was licensed as a certified general contractor in the State of Florida at all material times. He held license number CG-C028693. As of May 20, 1988, this license was delinquent for nonrenewal and had been since June, 1987.
At all material times while licensed as a certified general contractor, Respondent served as the qualifying agent for Quigley Homes, Inc., which is located in Palm Bay, Florida.
In March, 1985, Ronald and Rita McCarty contacted Respondent after seeing a model house that he had constructed in the area. After negotiations, in May, 1985, Respondent, on behalf of Quigley Homes, Inc., entered into a contract with Mr. McCarty for the construction of a house at a price of $89,900. The contract included several pages of specifications and stated that completion was due within four months of commencement. The parties agreed to a set of blueprints shortly after the contract was executed and thereby satisfied the only contingency to the contract.
Shortly thereafter, Respondent began preliminary work, such as ordering windows, site clearing and preparation, and obtaining necessary permits. In October, 1985, Mr. McCarty lost his job and his mortgage application was rejected. Respondent therefore ceased working on the house. At the time, the McCartys had paid Respondent the sum of $4495, which had been spent on start-up expenses.
In July, 1986, Respondent resumed construction, under the same contract, shortly after being told that Mr. McCarty had applied for another mortgage after obtaining a new job in January, 1986.
In August, 1986, a subcontractor poured the concrete slab for the house. The day prior to the pour, Mr. McCarty discovered that certain plumbing, which had to be in place before the pour, was missing. Unable to reach Respondent, Mr. McCarty himself informed the plumber of the omission. The plumber installed the necessary plumbing before the pour.
A day or two prior to the pour, Carrol Smoot, Building Inspector for the Town of Indialantic, had inspected the form and reminded the subcontractor in charge of the pour that J- bolts needed to be added before the pour.
J-bolts are anchoring devices around which the concrete is poured. Once the concrete is set, the wall plates are placed under the hook of the J- bolt in order to secure the house to the slab.
Notwithstanding Mr. Smoot's reminder, the pour proceeded without the J- bolts in place.
The pour had several other problems. A portion of the concrete garage floor was not square because the form had been off by about 4" at the time of the pour. The rear porch floor sloped too steeply toward the house. The slope
of the front porch was also too steep. There were various "bird baths" or depressions in the slab.
On August 27, 1986, Respondent and the McCartys met with Mr. Smoot at the work site. Following the meeting, Mr. Smoot sent a letter to Respondent dated August 29, 1986, in which Mr. Smoot required Respondent to take certain corrective action. The letter required two probe tests of the concrete in place, the installation of stud wall anchor bolts, the correction of the out-of- square corner, the topping of low spots in the slab with Ardex, and the repair or replacement of the incorrectly sloped rear porch.
In September, 1986, two portions of the slab passed by considerable margins separate probe tests designed to test the strength of the concrete.
Shortly after the August 27 meeting, Respondent suggested to Mr. Smoot that Hilti nails, rather than anchor bolts, be used to secure the wall plates to the slab. Hilti nails are an acceptable, but less desirable, alternative to J- bolts. However, after the slab is poured, it is much easier to install Hilti nails than J-bolts. Both Mr. Smoot and the McCartys agreed to Respondent's proposal.
At the same time, the excess slab at the unsquare corner was cut off and, pursuant to Mr. Smoot's orders, additional concrete was poured and attached to the original slab by means of stainless steel bolts.
Respondent offered to apply Ardex to the rear porch in order to level it and improve the concrete's rough finish, which had been caused by rain during the pour. Ardex is a topping material applied to concrete in order to level the surface. Respondent also offered to apply a coat of Kool Deck, such as that found around swimming pools, over the Ardex. The McCartys rejected the Kool Deck, but agreed to the Ardex. When terminated, as discussed below, Respondent had not applied the Ardex; however, he was postponing the work so that the finish would not be marred by later construction work.
Respondent removed and replaced the front porch slab. He ground the remaining slab in order to alleviate the unevenness. It is unclear whether Respondent also applied Ardex to other portions of the slab in order to eliminate the depressions. Depressions in slabs are not uncommon and grinding and topping materials are often used to level uneven slabs.
Following most if not all of the concrete corrective work, a subcontractor began the framing job. At about this time, shortly after the slab grinding was completed, C. C. Holbrook replaced Respondent as supervisor of the job for Quigley Homes, Inc. Mr. Holbrook was a certified general contractor with 30 years' experience. At the time, Respondent had built only 8- 10 houses and was considerably less experienced than Mr. Holbrook.
When Mr. Smoot was called to inspect the framing, he found that the Hilti nails had been driven through the wall plate improperly. Instead of having been staggered on either side of the centerline of the wood plate, each nail had been driven into the center so as to split the plate in places. This problem was later corrected by driving more Hilti nails on either side of the centerline. Similar nailing problems occurred with the roof sheathing and fiberboard. Mr. Smoot required renailing of these items and, when this was done, approved the work.
When the framing was about half complete, Mr. McCarty threw the framing subcontractor off the job due to Mr. McCarty's dissatisfaction with the quality of workmanship. In specific, he objected to the fact that one or more walls appeared out of plumb. At about the same time, which was late November or early December, 1986, the McCartys announced that they would no longer accept Hilti nails, even though they had already been installed.
On December 22, 1986, Mr. Holbrook, on behalf of Quigley Homes, Inc. wrote a letter to the McCartys in which he stated that the company could not proceed with the construction without written approval from the McCartys of the Hilti nails. Quigley Homes, Inc. discontinued working on the job at about that time.
In mid-January, 1987, Respondent's father, who is a certified general contractor with nearly 40 years' experience, met with the McCartys to try to resolve the differences between the parties. Respondent's father, David J. Quigley, Sr., has built over 20,000 residential units. Although unaffiliated with Quigley Homes, Inc., Mr. Quigley, Sr. had lent Mr. Holbrook to his son's company during a relatively inactive period before Mr. Holbrook was needed for a large residential development in which Mr. Quigley, Sr. was involved.
At the meeting, Mr. Quigley, Sr. stated that all problems would be resolved. Mr. McCarty was unappeased, which led Mr. Quigley, Sr. to ask if Mr. McCarty preferred to have someone else finish the house. Mr. McCarty responded affirmatively. Mr. Quigley, Sr. stated that Mr. McCarty should inform Mr. Holbrook in writing of the existing problems so that Quigley Homes, Inc. could take care of them.
Shortly after the meeting, Mr. McCarty called Mr. Holbrook to arrange a meeting to discuss the problems. Mr. Holbrook said that Mr. McCarty should mail him a written list instead. The McCartys never sent such a writing to Mr. Holbrook or Quigley Homes, Inc.
A final exchange of correspondence took place between the McCartys' attorneys, whose letter was dated January 28, 1987., and Quigley Homes, Inc., whose letter was dated February 5, 1987. In its letter, Quigley Homes, Inc. restated its willingness to finish the job or leave the job and repair the items mentioned in the letter.
At the time of the termination of Quigley Homes, Inc. from the McCarty job, Mr. Smoot had approved all stages of construction requiring inspection up to that time. However, numerous deficiencies in workmanship existed for which Respondent was responsible. Nearly all of these items were of a type that would have been corrected as construction proceeded on the house. These items included the uneven rear porch floor to which Respondent had offered to apply Ardex and Kool Deck, numerous window frames at different heights, two out-of- plumb walls, one or two incorrectly sized door openings, and a wavy roof ridge line caused largely by a few trusses that had been unevenly spaced. The repairs necessary to fix these items were minor. The wavy roof ridge line is not unusual, and the out-of-plumb walls had not yet been permanently attached.
Additional work was required to correct Respondent's deviation from the plans in using screening rather than aluminum soffits. Also, the tilt of one exterior wall prevented the application of one row of bricks near ground level, although the absence of these bricks is not readily apparent.
Two deficiencies were more significant. First, the garage floor was removed and replaced. The floor had suffered cracking and shrinkage. Although this portion of the slab had not been tested for strength, two other portions of the monolithic pour had passed strength tests. Petitioner failed to prove that the garage floor was structurally unsound or even seriously uneven. Appearance was the primary reason for the removal of the floor.
Second, the contractor who completed the job had to convert the master bedroom ceiling from a cathedral ceiling to a conventional ceiling due to problems with the truss design. However, the first truss company to which Respondent took the McCartys' plans refused to do the work, claiming that the design was impossible. The problem as to the ceiling was due to an error in planning for which Respondent was not responsible.
None of the deficiencies described above, except for the omission of the J-bolts, affected the structural integrity of the house. Once the Hilti nails were properly installed, no structural deficiencies remained. Petitioner's independent expert witness and the second contractor whom Petitioner called, declined to testify that the work was grossly negligent.
There is no evidence that the McCartys demanded correction of any of the defects described in Paragraphs 25-28. There is evidence that Quigley Homes, Inc. was ready, willing, and able to correct such problems. Under the circumstances, the overall work, given the nature of the deficiencies, was not grossly negligent or incompetent.
Like the work itself, the supervision was sloppy at times but was not grossly negligent or incompetent. According to Mr. Smoot's testimony, Respondent's absence during the inspections and portions of the pour is typical among residential general contractors.
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 certified general contractors. Section 489.129, Florida Statutes.
Discipline against a licensee may be imposed if a contractor fails in any material respect to comply with the provisions of Chapter 489. Section 489.129(1)(j), Florida Statutes.
Discipline against a licensee may be imposed if a contractor is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. Section 489.129(1)(m), Florida Statutes.
Discipline against a licensee may be imposed if a contractor abandons a construction project in which he is engaged or under contract as a contractor Section 489.129(1)(k), Florida Statutes.
A qualifying agent is a person who is responsible for the supervision, direction, management, and control of the contracting entity with which he is connected and on jobs for which he has obtained the building permit. Section 489.105(4), 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 did not prove its allegations that Respondent failed to perform in a reasonably timely manner or abandoned the job. There was no evidence to suggest that the work was performed untimely. The considerable delay between the execution of the contract and the commencement of the work was due to the inability of the McCartys to perform under the contract. There was no evidence of unusual delays attributable to Respondent after the work resumed in July, 1986.
There was no evidence to suggest abandonment. The McCartys fired Quigley Homes, Inc. They ignored the offer of Mr. Quigley Sr. to correct, at no expense to the McCartys, the deficiencies in the work at the time of termination. The quality of the work to that point was not such as to justify the McCartys' refusal to deal further with Quigley Homes, Inc.
Petitioner did not prove its allegations that Respondent failed to supervise the worksite by turning the job over to Mr. Holbrook. Notwithstanding the fact that Respondent is the qualifying agent for Quigley Homes, Inc., nothing requires him to supervise personally each job. His professional responsibility may be nondelegable, but he may assign supervisory duties to other responsible persons, such as Mr. Holbrook, as long as he remains professionally responsible for any acts or omissions of such supervisors.
The obvious sloppiness of the work and supervision are not grounds for discipline under a statute that penalizes gross negligence and incompetence. When, as here, the deficiencies are not structural or highly excessive in number and the general contractor timely offers to correct all problems at his expense, it is difficult to find gross negligence or incompetence, especially where, as here, the owners refuse repeated requests to present a punch list.
There was no evidence whatsoever of fraud, deceit, or misconduct.
RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.
ENTERED this 14th day of September, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.
Treatment Accorded Petitioner's Proposed Findings of Fact 1-5. Adopted.
6. Adopted except that construction recommenced in July, 1986, and Mr. McCarty discovered that the plumbing was not in place on the day prior to the pour.
7 and 9. Adopted.
8. Rejected as recitation of testimony.
Treatment Accorded Respondent's Proposed Findings of Fact 1-2. Adopted.
3. Rejected as irrelevant.
4 and 6. Adopted in substance.
5. Adopted.
12-14. Rejected as subordinate.
15. Adopted.
16-17 and 21. Rejected as irrelevant. See Paragraph 10 above.
Belinda Miller, Esquire Bruce D. Lamb Department of Professional General Counsel
130 North Monroe Street Regulation Tallahassee, Florida 32399-0750 130 North Monroe Street
Elting L. Storms, Esquire
780 South Apollo Boulevard Executive Director Post Office Box 1376 Construction Industry Melbourne, Florida 32902-1376 Licensing
