The Issue Whether the Petitioners, and each of them, have standing to bring the instant action before the Division of Administrative Hearings. Whether the 5500 North Corporation has meets the requirements set forth in Section 161.053, Florida Statutes, and Rule 16B-33, Florida Administrative Code, for obtaining a permit to construct a structure seaward to the coastal construction control line (CCCL).
Findings Of Fact The Department of Environmental Protection, f/k/a Department of Natural Resources, is the state agency charged with the responsibility of regulating coastal construction under Chapter 161, Florida Statutes. 5500 North Corporation (Respondent/Applicant) is the owner of the property located at 5600 North Atlantic Avenue, Cocoa Beach, Brevard County, Florida 32931. 5500 North Corporation submitted an application for a coastal construction control line (CCCL) permit to build on the vacant portion of its property, a seven (7) story building, along with required access drives and parking, as an addition to the Cocoa Beach Days Inn Hotel complex. The site of the proposed Days Inn Tower fronts on the Atlantic Ocean and is located three (3) miles south of Port Canaveral, near DNR survey monument R-16. The application and attached document were compiled and submitted to the Department of Environmental Protection by Plata Engineering, Inc., and consisted of the following documents: Application to the Department for the proposed construction of the building, consisting of three pages, front and back, six pages total. A legal description of the property, and a Warranty Deed for the property demonstrating ownership in 5500 North Corporation. Reduced certified survey of the site, showing control lines and other required information. Reduced Site Plan prepared by Plata Engineering, Inc. Section C - which is a section through the site plan, showing the dune configuration in relation to the proposed building and the construction control lines. A depiction of a section through the proposed building and some of its structural elements. Full size drawing of the proposed site. Turtle assessments form with attached lighting specifications of the manufacturer, and aerial of the site attached. Structural Design Calculations. Complete set of Building Plans, dealing with floor planning, and the structural elements of the calculations that were submitted with the structural calculations. The application was deemed complete, and on May 20, 1993, the Department issued a proposed Final Order issuing Permit Number BE-760 for the proposed structure. Standing of Petitioners Petitioner, Carole Pope, resides in the City of Rockledge, Brevard County, Florida. She is the owner of Lot 11, Block 101 of the platted subdivision known as Avon-By-The Sea which is located in unincorporated Brevard County, north of the existing north boundary of the City of Cocoa Beach. A duplex dwelling unit is located on the parcel. Petitioner occupies one unit annually during the summer. Petitioner Pope's property is not adjacent to the property where the proposed Days Inn Tower is to be located. The property is located approximately three blocks directly north of the proposed building and measures 475 feet east- west by 50 feet north-south and is bounded on the east by the Atlantic Ocean. Petitioners, Hugh and Cora Harris, own property located at Lot 13 of replat of Blocks 104 and 105, Avon-by-the Sea, in the unincorporated land of Brevard County, which borders on the City of Cocoa Beach. Petitioners' property is located across Young Avenue, and north of the property owned by 5500 North Corporation. The Harris's property contains a single family dwelling unit and is adjacent to the property were the proposed Days Inn Tower is to be located. Petitioners, Patricia A. and Eugene A. Wojewoda, own a unit at the Cocoa Beach Towers, a multi-family condominium, which is located north of the property owned by 5500 North Corporation, across Young Avenue, in the City of Cocoa Beach. The Wojewoda's unit is located on property which is adjacent to the property where the proposed Days Inn Tower is to located. Petitioners Wojewodas are Real Estate Brokers and owners of Professional Touch Realty, Inc. One of their four offices is located at 108 Young Avenue, immediately across the street and north of the subject property. Petitioners, Howard and Martha Crusey, own a unit, which they rent out, in the Cocoa Beach Towers, which is located north and adjacent to the property owned by 5500 North Corporation. Petitioners reside at 430 Johnson Avenue in Cape Canaveral, Florida. The Department sent out a notice for public comment to each of the immediate adjacent property owners. Existing Uniform and Continuous Line of Construction As part of the application process, the Department made a determination of the existing line of uniform and continuous construction. The existing line of uniform and continuous construction is a theoretical line that goes from the most seaward extent of the two adjacent structures, where adjacent structures exist, and extends north and south along the seaward edge of the structures. In the instant case, there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL. The footprint of the proposed Days Inn Tower does not extend seaward of the existing uniform and continuous line of construction, although a new structure (Discovery Beach) north of the Cocoa Beach Towers has been constructed landward of the current CCCL. The existing structures, which form the existing line of uniform and continuous construction, have not been unduly affected by erosion. The property was purchased by 5500 North Corporation in 1988. The property was commercially developed with the existing hotel buildings between 1959 and 1962, and the site has been operated as a hotel since that time. The footprint of the building was set by the engineers based on the parking requirements of the City of Cocoa Beach, and environmental concerns. It was determined that if the parking were located on the seaward side of the building, there would be drainage problems, and the need for a storm water treatment system for the parking lot. With the parking lot located landward of the proposed building, there will be no drain off to the side areas, but rather drain off would be to the middle of the property where the exfiltration system is located. The parking lot located landward of the proposed building meets the City of Cocoa Beach parking requirements and the drainage requirements. When siting the footprint of the proposed building, the engineers also took into consideration the fact that if the parking were located on the seaward side of the proposed building, the headlights would shine out to the beach and possibly impact sea turtles nesting. The applicants stated that construction seaward of the control line or 50-foot setback is considered necessary for reasonable use of the property, for the following reasons: The proposed building is basically an addition to a completion of the original concept of the overall hotel complex that was never completed in the past due to either financial or room availability need. The proposed placement seaward of the CCCL can be attributed to the configuration of the existing on-site buildings and the require- ment to satisfy the City of Cocoa Beach's extensive parking and limited access point requirements that have been subjected to this proposed site development. Please note that the proposed building is not being placed seaward of the existing line of continuous construction that has been established by the adjacent buildings to the north and the south. The Department determines necessity based upon the impacts the proposed structure will have on the active beach, and the dune system, and the neighborhood properties including the subject property, how the property is zoned, and whether it is situated behind the existing continuous line of construction. It is the Department's opinion that if the proposed building is in compliance with the standards established in Chapter 16B-33, F.A.C., the necessity of the proposed building has been justified. Impacts to the Beach-Dune System The greater weight of evidence supports the conclusion that the shoreline fronting the site of the proposed Days Inn Tower is stable. This section of the coastline has historically been accretional, and still continues to be accretional. There exists adequate evidence of current littoral trends. There exists accepted methodologies for determining evidence of expected wind, wave, hydrostatic and hydrodynamic forces associated with the design storm event which was presented in 5500 North Corporation's application for CCCL permit. Based on the 1989 Brevard County Study conducted by Olsen and Associates, Inc., there is no erosion at the location of the proposed building, instead the shoreline is prograding seaward instead of landward. Therefore, the shoreline is at least stable or accretional. Based on its in-house analysis, the Department of Environmental Protection conservatively adopted an erosion rate of one foot per year, which is considered a relatively minor erosion rate. Based on the Department of Environmental Protection's projection of the erosion for the area being one foot per year, the location of the proposed building lies well in excess of 200 feet landward of the thirty-year seasonal high water line. Although the proposed structure extends 118 feet seaward of the CCCL, the setback of the proposed building from the existing dune line is significant; therefore, there was no evidence of a threat of impact on the beach, to the beach or dune system as a result of the construction at the specific site. There are existing devices (i.e., an existing fence on the property which funnels people into boardwalks so that people cannot walk uncontrolled on the beach dune system) implemented in Brevard County and specifically on the site which will help manage people impacts as well. The setback between the dune and the proposed construction qualitatively relates to the ability of the site to recover after a one-hundred year storm. If a structure is located too far seaward, either immediately adjacent to or on top of the dune, it would inhibit the natural storm recovery process. The proposed building is set a significant distance landward of the dune formation itself, so there will be adequate room for the dune to recover in the future should there be a one-hundred year storm event. The proposed structure is located at a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and the natural recovery following storm induced erosion. The proposed construction will not have a cumulative impact that will threaten the beach or dune system or its recovery potential following a major storm event. low. Impacts to Adjacent Property Owners The probability of potential impacts to adjacent property owners is One reason the proposed building will not have adverse impacts to adjacent properties is that the proposed building is located significantly landward, and does not go further seaward than the existing line of construction. The adjacent buildings were constructed landward of the previous CCCL. The nature of the design associated with the particular project or the structural components of the design also minimize the impact to the parcel and to adjacent parcels. The first feature of the design of the proposed building is that the major habitable floors of the building are above the elevation of the one- hundred year storm and wave activity on top of the storm surge, so they will not be impacted by the water height or the wave activity of the storm. The second feature of the design of the proposed building is that everything below the habitable floors is designed to break away and lie down during any impact by wave activity, which allows the storm to go through the building rather than having those forces exerted on the building itself. The frangible driveway is designed so that the individual stones will fall as the grade falls, and most of them will end up buried in the event of a storm. The third feature of the design of the proposed building is that the building is elevated on a pile foundation which is sunk to a depth which is sufficient to accommodate for the anticipated erosion of a one-hundred year storm, and the pile caps are sunk well into the ground so that they do not contribute to erosion. Therefore, the building has been designed to withstand the one-hundred year storm, and the dynamics of the storm are allowed to go through the building and to be dissipated, in contrast to endangering the building or endangering adjacent properties. Due to the fact that the proposed building is "super-elevated and the portions that are actually impacted by the one-hundred year storm being frangible," the proposed building will not impact the adjacent properties. The proposed Days Inn Tower would serve to protect the adjacent Cocoa Beach Towers, and Petitioner Harris's property, by blocking the impact of a storm coming from the southeast. The proposed structure is designed so as to minimize any expected adverse impact on the beach dune system or adjacent properties or structures and is designed consistent with Section 16B-33.005, Florida Administrative Code. The proposed building meets the requirements of Chapter 161, Chapter 16B-33, Florida Administrative Code. Structural Design of Proposed Building The applicant provided adequate engineering data to the Department concerning the construction design of the building. The structure is designed in accordance with the minimum building code adopted for the area pursuant to Section 553.70-553.895, Florida Statutes. The proposed building is designed in accordance with the local code, and, in the opinion of the structural engineer who designed the building, either meets or exceeds the required codes. The proposed building is designed in accordance with Section 6, American National Standards/American Society of Civil Engineering 7-88 (July 1990) "Minimum Design Loads for Buildings and Other Structures", and has a minimum basic wind speed of 110 miles per hour. The proposed building is designed so that the building and its components will not become airborne missiles. The plans for the windows and doors require that they meet the 110 miles per hour wind loads. The proposed building is made of concrete reinforced masonry, and does not have bricks or attached masonry which could detach in a storm and become airborne. There are no substantial walls or partitions to be constructed below the level of the first finished floor, except for the elevator and stairs, seaward of the CCCL. The walls on the first floor are frangible walls which are designed to resist the 110 mile per hour wind pressure, but they lie down or collapse into the erosion hole created under wave surge pressure. The frangible walls are made of 4-inch thick concrete with reinforcing rods inside them, and are cut into 4 foot by 4 foot panels. The Department of Environmental Protection requires that any walls constructed below the one-hundred year storm surge plus storm wave elevations be frangible walls. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculation for wave forces on building foundations and building superstructures is based on minimum criteria and methods given in professionally recognized documents accepted by the Bureau of Coastal Engineering and Regulation with the Department. The structural design considered hydrostatic loads which would be expected under the conditions of maximum water height associated with a one- hundred year storm event. The calculations for hydrostatic loads considered the maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge. Both free and confined hydrostatic loads were considered in the design calculations. Hydrostatic loads which are confined were determined using the maximum elevation to which the confined water would fully rise if unconfined. Vertical hydrostatic loads were considered as forces acting both vertically downward and upward; however, there is no action upward because the maximum water level is at midlevel of the first floor and does not reach the second floor. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculations for hydrodynamic loads considered the maximum water pressure resulting from the motion of the water mass associated with a one- hundred year storm event. Full intensity loading was applied on all structural surfaces above the design grade which would effect the flow velocities, which are above the first floor and are not reached by the wave surge. The proposed building is elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave set up of one-hundred year storm. The piling foundation is designed to withstand anticipated erosion, scour, and loads resulting form a one-hundred year storm, including wind, wave, hydrostatic and hydrodynamic forces, and the pile caps are located below the erosion line as indicated by the Department's information and graphs. The elevation of the soil surface used in the calculation design grade is less than that which would result from the anticipated beach and dune erosion due to the one-hundred year storm event. The erosion calculations for foundation design account for all vertical and lateral erosions and scour producing forces. The pile caps are set below the design grade which includes localized scour, and are designed for the erosion of soil during the one-hundred year storm event. The piles are driven to a penetration which achieves adequate bearing capacity taking into consideration the anticipated loss of soil above the design grade, based on information provided by the geotechnical engineer's recommendation and the Department's requirements. The design plans and specifications submitted as part of the permit application for the proposed Days Inn Tower are in compliance with the standards established in Rules 16B-33, Florida Administrative Code. Turtle Impacts There is a two prong test which the proposed structure must meet to determine if the proposed building would have an adverse impact on nesting sea turtles. First, the proposed structure must not occupy marine turtle habitat, and second, the proposed structure's lighting must be adequate to eliminate adverse impacts to marine turtles. The effects of pedestrian traffic or flashlights on the beach are not considered by the Department when reviewing a permit application for adverse impacts to the marine turtles. The proposed building is sited significantly landward of the nesting beach, which is evidenced by the 75-foot wide dune stretch; therefore, it is not anticipated that the structure will result in any direct mortality of any marine turtle, nor would the building result in the degradation of the marine turtle nesting habitat. The proposed seven story structure will not occupy marine turtle habitat. The permit requirement to do dune restorative work, proposed by the Department, enhances the marine turtle habitat by further building the dune and enhancing the dune. Although the turtles do not nest beyond the dune crest, the dune is an integral part of protecting the habitat. There is a potential that the building, due to its height, could enhance marine turtle nesting habitat by blocking out the ambient glow from the City of Cocoa Beach which would create a dark beach directly in front of the proposed structure which could attract nesting. The applicant submitted a lighting plan to the Department which complied with the guidelines that are established in the information form entitled "Assessment to reduce impacts to marine turtles for lighting to reduce adverse impacts associated with coastal lighting." There are two main components of the lighting plan associated with the proposed building: the parking lot lights and the structural lighting. The parking lot lighting is designed as low-level Ballard-style lighting which is only 48 inches above the grade and emits light in a downward direction which will not be directly visible from the beach. The parking lot lighting design is the type recommended by the Department for parking lots, and is a good lighting design. The Department also recommends that an applicant plant hedges or landscape features to block out parking lights. The applicant is proposing to plant hedges in front of the 18 parking spaces that are on the seaward side of the proposed building. The structural lighting plan does have lighting on the seaward facade of the proposed building, which is not recommended by the Department, but the lights are designed to eliminate or significantly reduce the impact to marine turtles. The lights consist of canister, shielded, down-casting lights on the balconies which house a yellow bug lamp which is less impactive to turtles, and which is acceptable to the Department. The Department issued an approval letter regarding the proposed building to the project engineer which contained permit conditions for the protection of the marine turtles in association with the project. The permit conditions are as follows: No construction, operation, transportation or storage of equipment or materials is authorized seaward of the existing chain link fence located approximately 175 feet seaward of the coastal construction control line. No temporary lighting of the construction area is authorized at any time during the marine turtle nesting season (March 1 through October 31). All permanent exterior lighting shall be installed and maintained as depicted in the approved lighting schematic. No additional permanent exterior lighting is authorized. c All windows and glass doors visible from any point on the beach must be tinted to a transmittance value (light transmission form inside to outside) of 45% or less through the use of tinted glass or window film. Pursuant to the Department's requirements, the proposed construction will not have an adverse impact on nesting sea turtles, their hatchlings, or their habitat. Vegetation Impacts The vegetation patch on the dune system is approximately seventy five feet wide under today's conditions, and is probably growing to some degree. The vegetation system is basically comprised of a low-level dune which is planted both naturally and artificially with indigenous, salt-tolerant type vegetation, and sea oats. The existing line of construction which the proposed building is set behind is well landward of the zone of indigenous vegetation. Special condition #4 contained in the permit issued by the Department requires the applicant to convert some of the existing sodded area between the vegetation limits and the proposed construction to plantings with indigenous vegetation, which will serve to enhance the dune system. The native beach vegetation will be adequately protected by the permit conditions, given the location of the construction. Local Government Approvals On June 3, 1992, the Cocoa Beach Board of Adjustment granted a variance to the CCCL to the 5500 North Corporation for construction of the proposed building. Challenges to decisions of the City's Board of Adjustment is to the circuit court. In the instant case, the time for challenging the decision of the Board has expired. The City of Cocoa Beach Planning Board has the authority to approve site plans for site specific construction. The City's Planning Board has the responsibility of ensuring that the site plan conforms with the Comprehensive Plan and to recommend changes, if needed, to the City Commission. On July 13, 1992, the Cocoa Beach Planning Board voted to approve the site plan for the proposed building submitted by the 5500 North Corporation. The decision of the Planning Board granting approval of the 5500 North Corporation's site plan showed part or all of the building was seaward of the CCCL. The Petitioners did not file an appeal of the Planning Board's decision with the City Commission. Nor did they challenge the Planning Board's action in the circuit court. The 5500 North Corporation was not required to apply to the city commission for an amendment to the Cocoa Beach Comprehensive Plan in order to permit the proposed hotel tower to be located in the designated high hazard area. On July 6, 1993, the Building Official issued a building construction permit to the 5500 North Corporation for the proposed building, which has been subsequently extended for an unknown period of time. There are no other permits or local government requirements which have not been met by 5500 North Corporation. The applicant submitted written evidence to the Department from the City of Cocoa Beach, who has jurisdiction over the project, which stated that the project does not contravene local setback requirements, or zoning and building codes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection issue Permit Number BE-760 to the 5500 North Corporation, subject to the conditions proposed in the proposed Final Order. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 March, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioners' Proposed Findings of Fact Accepted in substance: paragraphs 1 (in part) 2, 3 (in part), 4, 5, 6, 7, 8 (in part), 10, 12 (in part), 13, 16 (in part), 17, 18, 19, 23 (in part), 24 (in part), 26 (in part), 27 (in part), 29 (in part), 31 (in part), 38 (in part), 49, 51, 63, 68 (in part), 69, 70, 71, 73 (in part). Rejected as against the greater weight of evidence: paragraphs 15 (in part), 16 (in part), 27 (in part), 46, 50 (in part), 82 (in part). Rejected as subsumed, argument or Conclusions of law: paragraphs 1 (in part), 14, 15 (in part), 16 (in part), 21, 23 (in part), 25, 26 (in part), 27 (in part), 28, 29 (in part), 30, 31 (in part), 32, 33, 34 (in part), 35, 36, 37 (in part), 38 (in part), 39, 40, 41, 42, 43, 44, 45, 47, 48, 50 (in part), 52, 56, 57, 58 (in part), 59 (in part), 61, 62, 64, 65, 66, 67, 68 (in part), 72 (in part), 73 (in part), 76, 77, 78, 79, 80, 81, 82 (in part), 83, 84. Rejected as irrelevant or immaterial: paragraphs 3 (in part), 5, 8 (in part), 9, 11, 12 (in part), 20, 22, 24 (in part), 34 (in part), 53, 54, 55, 58 (in part), 59 (in part), 60, 72 (in part), 74, 75. Respondent's Proposed Findings of Fact: Accepted in Substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (in part), 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 30, 35, 36 (in part), 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 93 (in part) 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118. Rejected as against the greater weight of evidence: paragraph 16 (in part). Rejected as subsumed, argument or irrelevant and immaterial: paragraphs 21, 26, 28, 31, 32, 33, 34, 36 (in part), 61, 87, 88, 89, 90, 91, 93 (in part), 103. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hugh and Cora Harris (pro se) 208 Young Avenue Cocoa Beach, Florida 32931 Howard and Martha Crusey (pro se) 430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920 Carole Pope (pro se) 715 Rockledge Drive Rockledge, Florida 32955 Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931 Dana M. Wiehle, Esquire Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road, MS-35 Tallahassee, Florida 32399 Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene 225 South Adams Street, Suite 250 Tallahassee, Florida 32301
Findings Of Fact The Respondent Louis C. Eder (hereafter Respondent) is a registered building contractor holding license number RB 0010762. At all times pertinent to this proceeding, the Respondent was the qualifying agent for Lujack Construction Company. On September 11, 1979, Dennis Ecks, a complainant in this proceeding, entered into a written contract with Abco Contracting and Construction Company, through its agent Jack Greenblatt, for remodeling his residence for the sum of $5,200. The permit for the Ecks job was pulled by the Respondent in the name of Lujack Construction Company. Ecks paid $4,900 to Abco for the job. He withheld $300 to compensate for the failure of Abco to install a screen door. Ecks paid the $4,900 directly to Abco and never met or spoke to the Respondent during the time the contract was being negotiated and executed. After the job was started, the Respondent sent letters to Ecks rescinding the permit for the job and orally communicated his concern that Ecks should exercise caution in his business dealings with Abco. The Respondent received no monies from either Ecks or Abco for the Ecks' job. On January 21, 1980, Dominic Sicilian, the other complainant in this proceeding, entered into a written contract with Abco General Contracting and Construction Company, through its agent, Jack Greenblatt, to enclose a carport for $11,675. The permit for the Sicilian job was pulled by the Respondent in the name of Lujack Construction Company. Sicilian paid $9,000 of the contract sum directly to Abco. This job was abandoned after approximately fifty percent of the construction work was completed, Sicilian, like Ecks, had no discussions with the Respondent before the contract was executed. Approximately one year after the contract was executed, Sicilian spoke to the Respondent concerning his problems with Abco. At that time the Respondent offered to finish the job for the remainder of the contract price. Additionally, shortly after Abco started the job, the Respondent informed Sicilian, both orally and in writing, that he would not be working on the job because he had not been paid by Abco and Sicilian should exercise caution in his business dealings with Abco. Both Ecks and Sicilian believed that they were dealing with Abco and neither had any knowledge of Lujack Construction or its relationship to Abco. The Respondent did not enter into construction contracts with either Ecks or Sicilian. The Respondent began working for Abco in the capacity of foreman. Shortly after commencing employment with Abco, the Respondent was requested by Abco to obtain permits for pending jobs due to a problem Abco encountered in obtaining permits. The problem resulted from Abco maintaining a business in an area zoned noncommercial. Approximately two weeks after commencing employment with Abco, the Respondent's relationship with Abco changed and he became the contractor on the job under the name Lujack Construction Company, a name which the Respondent had used for many years. Shortly after commencing work at Lujack Construction, the Respondent quit when he was not paid from the first draw. The Respondent terminated his relationship with Abco and notified Ecks and Sicilian that he was no longer working on the job due to non-payment and was rescinding the permits which he had pulled. The Respondent attempted without success to as certain the proper procedure to terminate the permits by directing inquiries to the Cooper City Building Department, Broward County Building Department, Palm Beach County Building Department and the Palm Beach County Construction Industry Licensing Board and the Department of Professional Regulation. The Respondent has been a licensed general contractor for fourteen years. During that period of time, he has built hundreds of homes in the Palm Beach area. Other than the complaints filed in the instant case, the Respondent has not been the subject of any previous complaint or disciplinary proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Construction Industry Licensing Board dismissing the Administrative Complaint filed against Respondent Louis C. Eder. DONE and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1983.
Findings Of Fact Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981, and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each. PLANS CHANGE After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.) At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation. STOP WORK ORDER ENTERED On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated: Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved. All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date. While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work. For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4 (A)(B). Petitioner's Exhibit No. 5. The following day, Mr. Pariser wrote Mr. Cowley, as follows: In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and 304.4 is invalid. We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . . Respondent's Exhibit No. 16. Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows: I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code. After meeting with your architect, Mr. Bryan, I propose the following solution. The stop work order will remain in effect for Construction only, i.e. steel re-inforcement, concrete, etc. could not be placed. Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming. If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15. To this, Mr. Pariser responded the following day with this letter: In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81. There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns. Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card. My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance. If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19. On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981. STOP WORK ORDER VIOLATED By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light. STRUCTURAL PROBLEMS In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981. SHORING ORDERED On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated: I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings. Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10. A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied: I am in receipt of your letter of May 7, 1981, please be advised that even though Raben-Pastal is respecting your wishes as to the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6. In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley: I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound. We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8. Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name: Per your instructions requiring 4 post shores to be placed around our columns on building C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5. During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser. FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling. If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall. On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic], Mr. Thomas and I made an inspection of the above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81. Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order. YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END. ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION. Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11. To this letter Mr. Fowler replied, also on May 15, 1981: Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th. It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation. As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab. However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it? Respondent's Exhibit No. 10. The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building. Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T. 306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony. Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated. The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler. LOAD TEST As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled. LAWYERS' MISUNDERSTANDING Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted. That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact. Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode. BUILDER'S ENGINEER STOPS TEST Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.) SECOND STOP WORK ORDER ENTERED On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued: With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9 of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued. During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr. Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12. By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981. On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six months. DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
The Issue The issue presented is whether Respondents are guilty of violating Section 471.033(1)(g), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Julian Irby was a licensed Professional Engineer with license number PE 43316 and Irby Engineering & Construction, Inc., held Certificate of Authorization #9511 issued by the Board of Professional Engineers. Mr. Irby has been licensed in the State of Florida as a professional engineer since 1990 and spent 21 years in the United States Navy Civil Engineer Corps. He is also a licensed general contractor. Respondent Irby was the engineer of record, with the firm name on the title block of plans for a residential construction project described as, "House Relocation, Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the relocation project). On or about June 2, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Inspections Department of Escambia County (Building Department). On or about June 7, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Department. On or about June 25, 2004, Irby signed and sealed six of six pages of plans (the June 25 plans) for House Relocation at 1000 La Paz Street, and filed them with the Building Department. Permitting for the project was performed in a two- step process, with a preliminary foundation plan submitted before the house was moved from the old site in order to obtain a moving permit and foundation permit. After those permits were issued, Respondents received test results from a geotechnical firm that caused some alteration in the design of the footings to accommodate the water table at the new site. The plans upon which the building permits were ultimately issued and which were used by the construction crew in the building process were the June 25 plans. On or about February 1, 2005, Irby signed and sealed seven of seven pages of plans for House Relocation at 1000 La Paz Street, and filed them with the Building Department on February 24, 2005. The seven pages of plans for the House Relocation signed and sealed February 1, 2005, and filed with the Building Inspections Department of Escambia County on February 24, 2005, represent the relocation project as completed. Changes made during construction and approved in the field are reflected in this set of plans. The Florida Building Code 2001, as amended 2003, is applicable to this case. The relocation project involved moving an existing home from Perdido Bay to a location several hundred feet further inland. The house was an elevated structure at the original location and was elevated at the La Paz address. Respondent Irby was not only the engineer of record but was also the contractor for the project. Certain features of the construction and design of the original structure were not known at the time the original plans were submitted for the foundation. For example, there was a façade that hid from view the I-beam, stringers and pipe posts under the floor of the home. These features could not be seen until the façade was removed in preparation for the move. Relocation projects are subject to certain exceptions under the Florida Building Code. Some design specifications normally required when building a house are not required for a relocation project, because the existing structure need not be redesigned or brought up to code as long as it meets conditions specified in Florida Building Code Section 101.4.2.3. There is no allegation that those conditions were not met in this case. The primary requirement for a relocation design is foundation plans sealed by a professional engineer or architect, if required by the Florida Building Code for residential buildings or structures of the same occupancy class. Respondents' plans filed with the Escambia County Building Inspections Department included foundation plans. Both witnesses testifying for the Petitioner stated that they did not review or prepare any calculations related to the plans and there was no evidence presented that the Building Department had required the calculations to be submitted with the plans. James Lane, who testified on behalf of the Petitioner, acknowledged that there is nothing in the Florida Building Code to prevent an engineer from using the dead weight of the house on the piers and the friction it creates as a method of construction. If the dead load of the house and the friction transfer from the house to the top of the piers is sufficient to address the lateral wind requirements, then straps (also referred to as connectors) would not be necessary to meet the requirements of the Florida Building Code. The main wind force resisting system for the relocation project was the embedment of the foundation piers in the fiberglass reinforced slab and continuous footing in the garage area. Page 6 of the June 25 plans specifies a four-inch minimum monolithic concrete slab with fiberglass reinforcement, using 3,000 PSI concrete, as well as number 4 rebar throughout the footings. There is no requirement that the exact location of rebar splicing be noted on the plans, and the plans are not deficient for failing to provide that information. Moreover, the Florida Building Code requires that a minimum of 2,500 PSI concrete be used. Respondents' design exceeded this requirement. Respondent Irby performed calculations, using the dead load weights in Florida Building Code Appendix A, that showed that the dead load of the existing house sitting on piers with the friction it created was more than sufficient to withstand the required lateral wind load. Mark Spitznagel, P.E., reviewed both the plans and the calculations and visited the construction site. He opined that the calculations showing wind loads could be supported using dead load friction between the house and the piers were correct, and that the Florida Building Code does not require an engineer to explain that no connector, or strap, is required under this circumstance. His testimony is credited. Despite the fact that no connectors were actually required, page six of the June 25 plans included directions for connectors that were used to provide additional support. The Administrative Complaint alleges that the plans do not provide adequate guidance for transfer of horizontal wind loads from the house to the supporting piers and posts or how the supporting piers and posts are to resist imposed loads from the house. The evidence presented at hearing did not indicate what information the Petitioner believed would be sufficient to meet the applicable standard of care. Moreover, the evidence presented supports the conclusion that the metal posts were never intended to transfer lateral wind loads, but were to support vertical loads. The metal posts were part of the existing house and not subject to redesign under the exemption afforded in Florida Building Code Section 101.4.2.3. Shear walls were not considered in the calculations performed by Irby. However, the June 25 plans included shear walls around the garage area, which served to provide extra support over and above what would be required by Irby's calculations. The detail provided on page 6 of the June 25 plans provided a clear load path from the foundation through the shear walls to the upper original structure. The June 25 plans admittedly do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size or thickness for top and bottom plates for the pipe posts. This information is not provided because the pipe posts were part of the original structure and there was no need to redesign them or include them in the foundation plans. The slab beneath the structure was also shown on sheets 1-3 and 6 of the June 25 plans. The slab characteristics are shown in the monolithic footing detail. The upper floor framing members, including the floor joists and the stringers and the I-beam atop the pipe posts were part of the original house design. The house was elevated at its original location, and the stringers, I-beam and pipe posts were part of the original structure. These components did not need to be shown on the plans because of the exemption provided in Florida Building Code Section 101.4.2.3. Respondents did not include main wind force resisting loads for the structure because the Florida Building Code does not require them to be shown for residential, as opposed to commercial, projects. Based on the evidence presented, only component and cladding pressures are required to be shown on the plans, and page 6 of the June 25 plans clearly provides this information. In accordance with Florida Building Code Section 1606.1.7, wind loads for components and cladding were provided showing that the structure was designed to withstand winds up to exposure category D, at 140 miles per hour. The house was actually moved and put in place on the foundation piers three days prior to Hurricane Ivan. Hurricane Ivan was a major hurricane causing extensive damage to the Pensacola area. According to the National Weather Service's Tropical Cyclone Report for the storm, Perdido Key was "essentially leveled." The house relocation project sustained no structural damage in Hurricane Ivan.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Administrative Complaint against Respondents be dismissed. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 A. G. Condon, Jr., Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Calloway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Sections 489.129(1)(i) and 489.129(1)(o), Florida Statutes, and if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a Certified Plumbing Contractor, holding License No. CF C056847. Respondent has maintained an active license since October 19, 1995. At all times material to this proceeding, Respondent conducted his business under the name of Ron Price Plumbing and Tile. On May 18, 2000, Respondent's business was located at 2043 Mike Street, South Daytona, Florida. On May 18, 2000, Respondent gave Edward Carlson a written proposal to perform some repair work in a bathroom at Mr. Carlson's residence, which was located in Daytona Beach, Volusia County, Florida. The letterhead on the written proposal indicates that Respondent's business address was 2043 Mike Street, Daytona Beach, Florida. The written proposal states that for the sum of $1,200, Respondent would perform the following work : (a) remove floor and bottom two rows of tile; (b) install PVC pan and drain; (c) install dura rock to walls; (d) install four-by-four wall tile; (e) install second floor; (f) install two-by-two floor tile; (g) use white grout; and (h) haul away refuse. Mr. Carlson accepted this proposal. Respondent did not pull a permit from the City of Daytona Beach Building Department before commencing the work in Mr. Carlson's bathroom. The City of Daytona Beach, Florida, requires a permit for the type of work performed by Respondent, even though very few plumbers or contractors actually take the time to pull one. Specifically, City of Daytona Beach Ordinance 104.1.4.1 requires a permit for minor repairs exceeding $500. Respondent, subsequently, completed the work in Mr. Carlson's bathroom. Mr. Carlson inspected the work and paid Respondent $1,200 as agreed. There is no credible evidence that Respondent's work was substandard or that he damaged Mr. Carlson's property in any respect. Thereafter, Respondent moved his business to 6089 Airport Road, Port Orange, Volusia County, Florida. As of September 1, 2000, Petitioner's records correctly reflect Respondent's current address of record at the new business location. Petitioner expended $312.48 in total cost, excluding attorney's fees, for investigating, filing, and pursuing the complaint against Respondent through the administrative complaint process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(o), Florida Statutes, imposing an administrative fine in the amount of $500, and assessing investigative costs in the amount of $312.48. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
Findings Of Fact Delbert W. Ogden holds license number CR 0051562 as a registered roofing contractor in the State of Florida. He held this registration at all times material to this action. Mr. Ogden was the qualifying agent for Sealtite Roofing and Waterproofing, Inc. from December 15, 1986 through May 30, 1987. The Watkins Contract On April 1, 1987, Sealtite Roofing and Waterproofing entered into a contract with Pauline Watkins (Ms. Watkins' name is now Pauline Watkins- Biddulph), to replace the roof on her home. The work included both a cement tile roof and a flat gravel roof. In her dealings with Sealtite Ms. Watkins dealt with a salesman, Tom Pagano. She never dealt with Mr. Ogden. Sealtite Roofing agreed to provide a written warranty on the roofing work for a period of 10 years. It delivered the Warranty when the work was completed. Ms. Watkins made a deposit with Sealtite at the time the contract was signed. A further amount was paid to Sealtite when the work has halfway finished, on April 27, 1987, and the final payment was made when the work was completed on May 1, 1987. At the time the house was reroofed, the weather was dry. After rain which occurred in late June, 1987, (almost two months after the work had been completed) Ms. Watkins had a number of leaks, the most serious being a leak in the kitchen. Ms. Watkins notified Mr. Pagano of the problem on June 30; the next day an inspector from Sealtite came to the house. Ms. Watkins then spoke with the office manager of Sealtite who informed her that the roofing would be removed and all water damage would be repaired, that new material to replace the roof had been ordered, and the new roofing material should arrive so that the corrective work could be done during the week of July 6, 1987. No one came in early July to repair the damage, so Ms. Watkins contacted the engineering department of the building division of the Village of North Palm Beach. Nothing came of that contact. Ms. Watkins again called the building inspector for the Village of North Palm Beach on July 22 and was advised to contact the Palm Beach County Construction Industry Licensing Board, because by that time Sealtite's phone had been disconnected. On July 23, 1987, a Mr. Slee, the owner of Sealtite, informed Ms. Watkins that her roof would be inspected again the next day. On July 24, two men appeared at Ms. Watkins' home, inspected the roof and left without speaking with Ms. Watkins. Ultimately, by August 13, 1987, Ms. Watkins complained to investigators with the Florida Department of Professional Regulation about the roofing company's failure to honor its warranty. On August 14, 1987 she was contacted by a Mr. Greg Martin, who claimed to be the qualifier for Sealtite at that time, and Mr. Slee. They were to arrange for repair of the roof by August 31, 1987, but they never did so. Mr. Ogden Delbert Ogden had disagreements with Mr. Slee, the owner of Sealtite Roofing, which caused him to resign as the qualifier for Sealtite with the Palm Beach County Construction Industry Licensing Board. His letter of resignation was mailed to the Palm Beach County Board on April 27, 1987. He followed this action with a latter to the State of Florida, Department of Professional Regulation, resigning as the qualifier for Sealtite with the State on May 14, 1987. As a result of his letter to the State, he received a receipt from the Jacksonville office of the Construction Industry Licensing Board on May 30, 1987, acknowledging that his license was placed on an inactive status. Mr. Ogden's first contact with Ms. Watkins was on November 6, 1987. He suggested that Ms. Watkins retain a lawyer to sue Mr. Slee and Sealtite. Ms. Watkins declined, maintaining that the dispute was between Mr. Ogden as the qualifier and Mr. Slee as the owner of the corporation which Mr. Ogden had qualified. Necessary Repairs Due to the inadequate work that was done on Ms. Watkins' roof by Sealtite, the roof had to be repaired. She paid $2,572.50 to remove and replace the roof Sealtite had installed, and also paid B & N Building Services $950.25 to repair the kitchen and porch ceilings and to replace a beam. She also paid 375 for new drywall, a repair to another damaged ceiling and other work done by another repair firm. Mr. Ogden's Past History with the Board On two occasions complaints had been made about Mr. Ogden's work to the Construction Industry Licensing Board. On September 9, 1987, the Board chairman signed a closing order finding there was probable cause to believe that Mr. Ogden did not obtain a permit in a timely manner, and on January 7, 1988, the chairman signed a closing order finding probable cause that Mr. Ogden had failed to honor a guarantee for work on a residential room addition. In both cases, Ogden was sent a letter of guidance. It appears that as the result of receiving the letter of guidance, Mr. Ogden was never provided an opportunity to formally dispute either of the complaints made against him. The mere fact that the Board found probable cause to believe Mr. Ogden may have violated Chapter 489 on prior occasions in no way proves that Mr. Ogden was actually guilty of misconduct on either occasion. There is no factual basis in the record for concluding that Mr. Ogden has been guilty of misconduct on prior occasions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that the Administrative Complaint filed against Delbert W. Ogden be dismissed. DONE and ORDERED this 4th day of May, 1989, in Tallahassee, Leon County, 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 5th day of May, 1989. APPENDIX The following constitute my rulings on proposed findings pursuant to Section 120.59(2), Florida Statutes. Findings Proposed by Department Covered in paragraph 1. Covered in paragraph 1. Covered in paragraph 2. Covered in paragraph 2. Covered in paragraph 4 Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 4. Covered in paragraph 7. Subsidiary to the first clause in paragraph 7. To the extent relative, covered in finding of fact 5. Covered in finding of fact 5. Rejected as subordinate to finding of fact 1. Rejected as irrelevant. Rejected for the reasons stated In finding of fact 8. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Delbert W. Ogden 360 Selve Terrace West Palm Beach, Florida 33415 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Florida Construction Industry Licensing Board Post Office Drawer 2 Jacksonville, Florida 32201
The Issue The issues presented for decision herein are whether or not the Respondent diverted funds from a construction project involved herein; violated local building codes and thereby engaged in misconduct in the practice of electrical contracting all in violation of Sections 489.533(1)(m), (f), and (i), Florida Statutes (1983).
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. During times material herein, Respondent is and continues to be a registered electrical contractor having been issued license number ER004865. On November 28, 1983, Clell Villella, manager of Coral Castle, Inc., a tourist attraction, and Respondent entered into a subcontractual agreement for the installation of parking lot and outdoor lighting electrical connections to existing electrical services at the Coral Castle. The contract price was $26,600 and the parties agreed that the work would be-completed by January 1, 1984, the beginning of Coral Castle's peak tourist season. (Petitioner's Composite Exhibit 2 and testimony of Clell Villella). On December 8, 1983, Respondent was given an initial deposit of $6,600 to commence work. (Petitioner's Composite Exhibit 3). After Respondent was given the initial deposit he failed to appear at the Coral Castle to commence work on the project for approximately 30 days despite Manager Villella's constant prodding through phone calls. Respondent commenced work on the project during early January, 1984 and worked evenings for a period of approximately ten to twelve days on the project. After Respondent had worked on the project for approximately twenty hours, he abandoned it by failing to appear at the site for more than 30 days. Respondent failed to return Manager Villella's phone calls. When it became apparent that Respondent would not be returning to the project, Manager Villella hired Tierney Electrical Contractors, Inc., (Tierney) to complete the electrical work on March 7, 1984. Tierney submitted a proposal to complete the work in question for the sum of $36,500. (Petitioner's Exhibit 4). Tierney was requested to make some modifications to the work which Respondent had contracted to perform. Tierney estimates the added cost resulting from the modifications increased the value of his proposal by approximately $4,000. (Testimony of William Tierney). When Tierney commenced construction on the project, Manager Villella requested that he estimate the amount of the work that Respondent had completed. Tierney estimated that amount to be 13% of the project or approximately $2,226. Tierney's calculations were based on the fact that Respondent had installed approximately 643 feet of 3/4-inch rigid conduit. Based on the estimate of the work completed by Respondent, Coral Castle, by letter, requested Respondent to refund the $4,374 difference between the amount of the deposit initially tendered to him and the amount of work completed as estimated by Tierney Electrical Contractors. As of the date of the hearing, Respondent failed to respond to this demand or return any telephone calls from Manager Villella. At no time while Respondent performed the work in question for Coral Castle, Inc., had he (Respondent) applied for or obtained an electrical permit to perform the work in question. Respondent acknowledges that no permit was obtained for the work he performed at Coral Castle. However, he maintains that the common practice in the area is that permits are "pulled" after the work is completed or, in any event, prior to the first inspection; that it is permissible to commence construction except that a permit has to be obtained prior to the time when the job is either completed or the first inspection is due. However, a review of the pertinent sections of the South Florida Building Code, 1 1984 edition, reveals that it is necessary to first file an application for and obtain a permit prior to. commencement of construction. Chapter 3, Section 301, South Florida Building Code (1984 Edition).m
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license as a Registered Electrical Contractor be suspended for a period of one (1) year. Further, it is recommended that the suspension be stayed for a period of 30 days during which time the Respondent will be allowed an opportunity to enter into a settlement agreement with Coral Castle, Inc., and provided that such an agreement is made, that the suspension revert into a term of probation for a like period i.e., (1 year). Finally, it is recommended that the Respondent pay the Petitioner an administrative fine in the amount of $1,000. Recommended this 4th day of February, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1986.
