STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION )

INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7869

)

EDUARDO KIRKSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Miami, Florida, on July 12, 1991.

APPEARANCES

For Petitioner: Tim Vaccaro, Esquire

Department of Professional Regulation

1940 N. Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Cesar Gomez, Esquire

1221 Brickell Avenue Ninth Floor

Miami, Florida 33131 STATEMENT OF THE ISSUE

The issue is whether disciplinary action should be taken against Mr. Kirksey for violation of Sections 489.129(1)(d) (1)(j) and (1)(m), Florida Statutes (1985), arising from work done during the construction of a room addition and balcony.

PRELIMINARY STATEMENT

The Administrative Complaint alleged that Mr. Kirksey willfully or deliberately disregarded and violated applicable building codes, in violation of Section 489.129(1)(d) Florida Statutes (1985), and was guilty of fraud or deceit or gross negligence, incompetency or misconduct in the practice of contracting in violation of Section 489.129(1)(m), Florida Statutes (1985).

The Count charging violation of Section 489.129(1)(j), Florida Statutes (1985) was voluntarily dismissed. The dispute arises out of a contract which Mr. Kirksey's firm, Modern Construction Co., Inc. entered into with Ira Goldstein.

At the hearing, the Department presented the testimony of Ira Goldstein, Joseph Montagnino, Evette Goldstein and Janice Smith. Exhibits 1-7 were admitted into evidence. The Respondent presented the testimony of Eduardo Kirksey, Ronald Hoban, and Arturo Peralta. One exhibit was offered, but was not received because it duplicated the Department Exhibit 5, which had been admitted.

The Hearing Officer agreed to take official recognition of the South Florida Building Code, on the condition that the Department provide a copy of the applicable section of the code, with the Recommended Order. (Tr. 114) 1/

A transcript of the proceeding was filed and both parties filed Proposed Recommended Orders by August 7, 1991. Rulings on proposed findings of fact are found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Eduardo Kirksey is licensed as a certified residential contractor, holding license CR C012717. He qualified a corporation known as Modern Construction Company, Inc. (Modern) to engage in contracting.Modern entered into a contract on about July 28, 1986 with Ira Goldstein of 4440 Southwest 32nd Drive, Hollywood, Florida for construction of two-story room addition which would include a family room, bedroom and bath. Modern was to provide the plan by which the addition would be built. A rough sketch of the addition is included on the contract. More specific plans, which are similar to architectural drawings, were thereafter prepared for submission with the building application, which Modern filed with the Broward County Building and Zoning Enforcement Division. The contract was later amended to add a balcony around the second floor of the addition. The plans which are in evidence as Department Exhibit 4 are the second set of plans. According to these plans, the second floor bedroom had a 6" x 6" sliding glass door. The door opened on to a balcony which was created by cantilevered joists consisting of 2" x 10" pieces of lumber bolted to 2" x 12" rafters between the first and second floor. These 2" x 10" members extended out four feet from the building. According to the plans, 2" x 6" decking was to be placed across these joists, and an appropriate railing would then be placed around the balcony.

   
   

2. Mr. Kirksey submitted the amended application for the permit and the plan to the Broward County Plan Review Board for approval, and it was approved.

   
   

3. After construction began, Mr. Goldstein determined that he did not wish the floor of the balcony to be pressure treated wooden decking. Instead, he wanted a tile floor on the deck.

   
   

4. Mr. Kirksey had already filed two sets of plans with Broward County on the project, the first for the addition without the balcony, and the second for the addition with the balcony. He did not want to file a third building permit application which would also require the submission of new drawings.

5. Mr. Kirksey did agree to change the construction to accommodate Mr. Goldstein's desire to tile the balcony but declined to do the tile work himself as part of his contract with Mr. Goldstein. Mr. Goldstein was to arrange for the tiling of the deck.

   
   

6. The original design for the decking would have spaced the 2" x 6" lumber which made up the decking with small spaces between each piece of lumber to allow water to fall through during rain. In order to lay tile down, it was necessary to place plywood across the joists, rather than 2" x 6" pressure treated lumber. Before the plywood could be laid, however, Mr. Kirksey had to remove the 2" x 10" cantilevered joists from between the first and second floor, because the original design called for those joists to be level. They were reinstalled at about a 1/2 inch slant so that the water would then drain from the balcony after it had been tiled. In addition, Mr. Kirksey then had to place soffit under the balcony, and put facia around the bottom of the deck. Neither the soffit nor the facia were required in the plans. Although it was more expensive for Mr. Kirksey to add these items, Mr. Goldstein was not charged any additional money for this work.

   
   

7. The plywood that was put down over the 2" x 10" rafters instead of the pressure treated 2" x 6" lumber was 3/4 inch exterior grade plywood. Pressure treated plywood was not used because the plywood was to be covered with tile, and if properly tiled, pressure treated plywood is unnecessary. Moreover, even if tile is put over pressure treated plywood, if tile is not laid properly, the pressure treated plywood will rot as well as exterior plywood will rot.

   
   

8. It would not have been possible to place tile over the 2" x 6" pressure treated lumber which the amended plan filed with the Broward Building and Zoning Enforcement Division had called for. The 2" x 6" members would shrink and move, causing the tile to crack. Some type of plywood had to be used instead of decking to permit Mr. Goldstein to tile the deck.

   
   

9. The 3/4 inch plywood which Mr. Kirksey used met or exceeded the standards established by the South Florida Building Code.

   
   

10. No sealant, or paint, was applied to the plywood, nor was the deck covered with visquine. Preparation of the plywood before the tile was placed over it would be the job of the person doing the tile work.

    
    

11. An inspector from the Broward County Building and Zoning Enforcement Division visited the site on a number of occasions. During the course of those inspections some of the work was originally rejected by the inspector. For example, the balcony railing pickets had a spacing greater than 5 inches and the top of the rail was only 36 inches high, not 42 inches high. As a result of this rejection, the picket spacing and railing were changed. Ultimately, the inspector gave final approval after having seen the plywood deck, even though no new plans had been submitted to change the deck to have a plywood floor for tile rather than the originally permitted 2" X 6" pressure treated lumber deck.

    
    

12. When the job was completed by Modern it was in the condition a project would normally have been left where the contractor was not responsible for laying the tile over the balcony floor. Because the floor was to be tiled, there was no reason for Mr. Kirksey to have painted the balcony floor. In addition, the contract did not require that any painting be done.

13. Mr. Goldstein did the tile work on the deck himself although he had no prior experience in laying tile. Mr. Goldstein spoke with one of Modern's workmen about how to lay tile. This was an informal conversation, and Mr. Kirksey, the contractor, never advised Mr. Goldstein on how to lay tile. I do not accept the testimony of Mr. Goldstein that the employee of Modern who explained to him how to lay tile was the job foreman. Nothing in the contract with Modern required Modern to lay tile, or to advise Mr. Goldstein how to lay tile, so whether the person who discussed laying tile with Mr. Goldstein was a foreman is not significant.

    
    

14. Sometime after all the work had been completed by both Modern and Mr. Goldstein, Mr. Goldstein's daughter Evette stepped out onto the balcony, and her foot and leg went through the balcony. This occurred because the plywood had not been sealed or protected before the tile was laid by Mr. Goldstein. As a consequence, the plywood had rotted under the tile. The rot also extended to the supporting joists.

    
    

15. Broward County has adopted and incorporated into the Broward County Charter, Chapter 71-575, Laws of Florida, a Special Act of the Legislature.

    Both adopt for Broward County the "South Florida Building Code, Dade County 1970 edition, as amended." The Department included with its proposed recommended order portions of the South Florida Building Code, 1986 Broward County edition, for the purpose of demonstrating that the conduct of Mr. Kirksey violated Section 301(a) and 302.1(e) of that 1986 code. As a matter of evidence, the 1986 Broward County edition of the Southern Florida Building Code does not appear to apply. The Department's exhibit 7, which is "a copy of the Broward ordinance which adopts the South Florida Building Code" (Tr. 6) shows that it is the South Florida Building Code, Dade County 1970 edition which applies in Broward County. No portion of that document has been offered in the record of this case. As a consequence, there is no record evidence that Mr. Kirksey has violated a portion of an applicable code.

    
    

16. It is true that Mr. Joseph Montagnino testified that Section 301(a) of the South Florida Building Code would not permit a change in a plan once it had been approved (Tr. 22, 104). In a case such as this, however, it is necessary for the Department to produce the text of the applicable building code, which has been adopted either by State statute or local ordinance. It cannot prove a violation through the testimony of a witness who merely characterizes his recollection of the text of an authoritative code. Moreover, other witnesses who are experts in construction trades in Broward County testified that it is common for inspectors to approve changes such as that made by Mr. Kirksey here, at the request of Mr. Goldstein, to substitute plywood flooring for pressure treated decking, without the need for amended plans or permits. (Tr. 75-77, 88- 89). Without evidence of the text of the applicable code, it is not possible to determine whether these experts, or Mr. Montagnino are correct.

    
    

17. Since Mr. Goldstein, the homeowner, intended to do the tile work, it would not have been Mr. Kirksey's responsibility to pull additional permits for the tile work. At most, Mr. Kirksey's duty might have been to have obtained approval of amended plans, showing the slight pitch of the joists supporting the balcony floor, and the substitution of plywood and tile for 2" X 6" pressure treated lumber as the flooring for the balcony. Mr. Kirksey is in no way responsible for the inadequate preparation of the plywood surface for the application of the tile. Mr. Kirksey is in no way responsible for informal advice given by an employee of Modern, whose identity cannot be determined from the evidence in this case, to Mr. Goldstein about the proper way to prepare the plywood deck for tiling. Tiling was not part of the construction contract which

    Mr. Goldstein entered into with Mr. Kirksey's company. Mr. Kirksey is therefore not liable for inadequate supervision of employees on the job. Mr. Kirksey's employees performed the work required under the agreement which Modern had with Mr. Goldstein, as the parties amended it after the construction began.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1989).

    
    

19. In this matter, the Department must establish by clear and convincing evidence that Mr. Kirksey is guilty of violations which may lead to discipline of his license.

    
    

20. Mr. Kirksey was the "qualifying agent" for Modern Construction Company and thus had the responsibility to supervise the job at the Goldstein residence, for which he had obtained a building permit. Section 489.105(4), Florida Statutes (1985). The Board has the authority to discipline a contractor who willfully or deliberately disregards or violates the provisions of an applicable building code. Section 489.129(1)(d), Florida Statutes (1985). The record in this case fails to demonstrate the text of the applicable code. According to the Department's exhibit 7, the South Florida Building Code, Dade County 1970 edition applies in Broward County, yet the code sections submitted by the Department after the hearing are portions of the South Florida Building Code 1986 Broward County edition. According to the Department's exhibit 7, that code does not apply in this case. As a consequence, the Department has failed to prove any violation of the local building code.

    
    

21. A contractor may also be disciplined if he is guilty of fraud or of deceit, or of gross negligence, incompetency or misconduct in the practice of contracting. Section 489.129(1)(m), Florida Statutes (1985). There is no evidence that the work done by Modern Construction Company, Inc. and Mr. Kirksey was performed in a grossly negligent or incompetent manner. There is no evidence that he practiced any fraud or deceit. The Department has failed to prove any violations of Section 489.129(1)(m), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board finding Eduardo Kirksey not guilty of the violations set out in Counts I, II or III of the Administrative Complaint.

RECOMMENDED this 24th day of December, 1991, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1991.

ENDNOTES

1/ Line 1 of page 114 is incorrect. The fifth word should be "portion", not "doctrine".

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7869

Rulings on the findings proposed by the Department:

1. Rejected as unnecessary.

2 - 5. Adopted in Finding 1.

1. Adopted in Finding 2.

2. Generally adopted, as modified, in Findings 3 - 9.

3. Generally adopted in Finding 4. There is no showing that approval was required, however. See, Conclusions of Law.

4. Rejected. See, Conclusions of Law and Department Exhibit 7.

5. Adopted in Finding 13.

6. Rejected. The employee Mr. Goldstein talked to was not "Bert".

7. Adopted in Finding 14.

8. Adopted in Finding 14.

Rulings on findings proposed by Mr. Kirksey:

1 - 4. Adopted in Finding 1.

5. Adopted in Finding 6.

6 and 7. Adopted in Finding 2.

1. Adopted in Findings 3 - 5.

2. Adopted in Finding 5.

3. Adopted in Findings 7 - 9.

4. Adopted in Finding 5.

5. Adopted in Finding 8.

6. Adopted in Findings 7 - 9.

14 and 15. Adopted in Finding 6.

1. Adopted in Finding 9.

2. Adopted in Findings 10 and 12.

18 and 19. Adopted in Finding 11.

20 and 21. Adopted in Finding 12.

22 and 23. Adopted in Finding 13.

24 and 25. Adopted in Finding 14.

1. Adopted in Finding 10.

2. See, Preliminary Statement.

3. Adopted in Finding 16.

29 - 31. Rejected as unnecessary.

1. Rejected as unnecessary. See, also Finding 16.

2. Discussed in Finding 16, but not finding is made.

3. See, Conclusions of Law.

4. Rejected as unnecessary.

5. Rejected as unnecessary. There was no failure to supervise. See, Finding 17.

6. Rejected as unnecessary.

7. Rejected as unnecessary. Mr. Kirksey built the addition properly according to the contract as amended orally.

8. Adopted in Finding 10.

9. See, Conclusions of Law.

10. See, Conclusions of Law and Finding 9.

11. See, Conclusions of Law.

12. See, Conclusions of Law and Finding 10.

COPIES FURNISHED:

Tim Vaccaro, Esquire Department of Professional

Regulation

1940 N. Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Cesar Gomez, Esquire 1221 Brickell Avenue Ninth Floor

Miami, Florida 33131

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Daniel O'Brien, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007869

Orders for Case No: 90-007869