Findings Of Fact Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND: That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence. RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J New Smyrna Beach, Florida 32069 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 76-784 PETER C. SWEBELIUS, SR. CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069, Respondent. /
Findings Of Fact The Respondent, Clarence Kimball, is a professional engineer licensed to practice engineering in the State of Florida, holding license number PE 0009427. The Petitioner is an agency of the State of Florida charged with enforcing standards and principles of professional engineering practice imposed upon licensed professional engineers in Florida and enumerated in Chapter 471, Florida Statutes (1981), and with monitoring and regulating the licensure status of professional engineers in Florida. The Respondent was retained to draft engineering design drawings for a multi-family residential project known as Westwind Villas, to be constructed in Lee County, Florida. The project consisted of two two (2) story buildings each containing four residential units. The drawings depict the first floor of the two buildings as built in place out of concrete block. The second floor of the building as depicted in the drawings, would be built of prefabricated modular units mounted on top of the concrete block, first floor construction. The purpose of these engineering drawings was to define the scope of the work to be done by the building contractor, who would do the actual construction, and to define the materials to be used by the contractor and the manner in which those materials were to be assembled. These permit drawings contain an inconsistency as to which way the buildings are to face. Sheet 1 of the drawings depicts a plot plan and drainage plan for the Westwind Villas. That sheet indicates that the units are all facing west. Sheet 2 of the drawings also shows the units facing west. Sheet 5, however, depicts the units as both facing to the north. This fact was established by Petitioner and indeed, was acknowledged by the Respondent in his testimony. Sheet 2 depicts the elevation and design of the foundation of both buildings. There are a number of areas of the foundation design where the drawing depicts an increase in the width of the concrete slab involved, but with no indication of the Respondent's intent as to what the dimensions of the widened portion of the slab were to be. The Respondent acknowledged that the failure to indicate the width of the slab as widened with regard to the drawing on Sheet 2, was a mistake on his part. Sheet 2 also contains a note that says "number 5 bars in the concrete fill are indicated by a little square." Indeed there are numerous small squares on the foundation plan indicating that number 5 reinforcing bars are erroneously sticking out of the floor of the structure. The Respondent admitted that the filled squares indicate reinforcing bars out in the floor of the structure, as opposed to the foundation, and that those are mistakes. Sheet 2 also provides no indication or direction to the building contractor as to the degree of compaction of soil required, the grade of lumber to be used, nor the grade and type of reinforcing steel to be used in the concrete portion of the construction. Sheet 4 of the permit drawings contains details and cross sections. Section AA calls for an 8" x 16" concrete tie beam and in depicting the typical cross section of that same beam, the Respondent shows it as an 8" x 12" concrete tie beam, which would have less "shear load "or weight bearing ability. Section CC of Sheet 4 illustrates a section of the wall for which the Respondent indicates that a single wall is to be constructed of interior type wall materials. Due to the offset of the two units in their alignment arrangement with each other however, there should have been two "stud walls" designed with the exterior portions of those walls constructed out of exterior materials, since, as designed in an offset pattern, portions of the walls would indeed be exterior walls. The Respondent acknowledged here again that he should have designed the two walls providing for materials suitable for exterior wall construction. As Respondent admits, Section CC also does not indicate how the contractor is to anchor prefabricated units consisting of the second floor structure, to the beams on which they are to rest. There is no indication as to what material is to be used for the attic floor of the structures. Section 5 depicts cross sections, trusses and framing details. There is inconsistency between the elevation depicted on Sheet 2 and the roof rafter plans shown on Sheet 5. The roof after plan indicates that the prefabricated second story unit is 14 feet wide without overhang on the sides. The elevation drawing, however, shows an overhang of 1' 4" on each side. There is thus an inconsistency there, and also an inconsistency between the ceiling plan above the second floor and the truss detail both of which are shown in Sheet 5. The ceiling plan indicates that the ceiling joists are to be 2" x 6". In truss detail "A" the ceiling joists are shown to be 2" x 8". Additionally, the 2" x 6" ceiling joists are overstressed in that the attic was designed to have a pull down staircase and thus is clearly intended for storage use. The standard building code in effect for this structure, requires that an attic space to be used for storage should be designed with a live load capacity of thirty pounds per square foot. The Respondent designed this attic space with a live load capacity of fifteen pounds per square foot, and thus has failed to meet building code standards. Sheet 5 contains illustrations of "Sling and Jack Points" thus showing a method for lifting the fabricated units onto the concrete block first floor structure. The owner of the building ultimately decided not to use this method for lifting the prefabricated units atop the first floor, but the Respondent failed to notify the Lee County Building Department of this decision and did not file a revised sheet showing the elimination of the use of sling and jack points for lifting in the design. The drawing with regard to placement of the second floor units on top of the first floor concrete block structure was incomplete. The Respondent referred to a temporary support beam to be used during the lifting operation and indicated the specification for that beam "as depicted by reference on another sheet of the drawings. Respondent, however, did not indicate what other sheet the contractor was to refer to. The permit drawings for this project, signed and sealed by Respondent, are to some extent an amalgamation of drawings from other previously designed projects, some of which are inconsistent when an attempt is made to combine the drawings into a single new design. There are a number of construction problems the Respondent failed to resolve with his drawings, and while many of the errors and inconsistencies standing alone would not be significant, the sum total of all the inconsistencies, ambiguities and inaccuracies in the drawings result in a final product which would, if used to construct the building, result in a poorly constructed, and possibly unsafe building, because of the substandard and ambiguous nature of the drawings at issue.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Professional Engineers suspending the license of Clarence Kimball, the Respondent herein, for a period of four years, provided however, that if, within one year from the date of such final order, the Respondent, through enrollment and successful completion of appropriate continuing engineering educational courses, can establish that his engineering skills have been remediated and rehabilitated, then the remaining three years of suspension should be abated and his licensure reinstated to its former status. DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32391 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of June, 1984.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, 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 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
The Issue Whether Respondent's license as a Certified General Contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set for the in the Administrative Complaint dated July 17, 1981. This case arises from an administrative complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Respondent Lawrence M. Stoner, a certified general contractor, for alleged derelictions in connection with the construction and subsequent collapse of a condominium at Cocoa Beach, Florida in March, 1981. Although this case was consolidated for hearing with the case of Department of Professional Regulation, Construction Industry Licensing Board v. Bruce Alles, Case No. 81-2057, the parties announced at the commencement of the hearing that they had elected to hear this case separately. This case was originally noticed for hearing to be held on November 2, 1981. Petitioner filed a motion for continuance of the hearing on October 23, 1981 based on additional information that had been received subsequent to the filing of the Administrative Complaint. However, the matters sets forth in the motion were not considered to constitute good cause for continuance and the motion was denied. The petition alleges that although a firm named Univel, Inc. entered into a contract with another company, Palm Harbor West, Inc. to construct the condominium project in question, Univel hired Respondent to pull the building permit in the name of the corporation for which he was the qualifying agency, Dynamic Construction Company, Inc. It further alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it is stated that the building collapsed in March, 1981 killing eleven persons and injuring twenty- three others, and that violations of the Southern Standard Building Code in the improper placement of steel rebars in columns, and inadequate thicknesses of floor slabs contributed to the collapse. Thus, the petition alleges grounds for disciplinary action against Respondent for acting as a contractor in the name of another, failing to notify Petitioner of his affiliation with another business organization, and failure to supervise the project. It also predicates discipline upon willful or deliberate disregard in violation of the applicable building codes in covering reinforcing steel without an inspection and deviating from approved plans and drawings. In his answer to the complaint, Respondent averred that pursuant to an agreement between his firm and Univel, Inc., his services were provided to Univel to serve as the general contractor for the project and that he did so, exercising proper supervision over construction, and that the building was built according to its engineering plans and drawings and applicable codes. The parties entered into a pre-trial statement of the issues as follows: Was there a duty under Florida Statutes 49.119(3)(b) for LAWRENCE M. STONER to notify the Department of Professional Regulation that he intended to affiliate with Univel, Inc. to do the Harbor Cay job? Did LAWRENCE M STONER act in the capacity of a contractor under any name other than the names set forth in his contractor's certificate? Did LAWRENCE M STONER have a duty to supervise and be responsible for the Harbor Cay project and, if so, did he supervise it and was responsible for that job? Did LAWRENCE M STONER willfully or deliberately disregard Section 108.2 of the Southern Standard Building Code by covering steel in concrete columns on the Harbor Cay job prior to inspection, or did he willfully and deliberately disregard Section 114 of the Southern Standard Building Code by failing to follow plans and specifications calling for an eight inch slab thickness and/or by improperly placing the steel rebar in the concrete columns? At the hearing, Petitioner presented the testimony of fourteen witnesses and submitted fourteen exhibits in evidence. Respondent called three witnesses and submitted five exhibits. Respondent's Exhibit 5 is a late-filed exhibit received by agreement of the parties. A Proposed Recommended Order filed by the Petitioner and Respondent's Summation have been fully considered and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent, Lawrence M. Stoner, is a certified general contractor holding license numbers CG C005313 and CG CA05313, and was so licensed at all time pertinent to this proceeding. He is the qualifying agent for Dynamic Construction Company, Inc., and Atlantic Contracting, Inc., Cocoa Beach, Florida (Testimony of Respondent, pleadings, Petitioner's Exhibit 4) Respondent has been the president of Dynamic Construction Company, Inc. since 1973. He formed Atlantic Contracting, Inc. in 1980, but it has been inactive and has never done business as a general contractor. Respondent is the sole employee of Dynamic Construction Company, Inc. Dynamic occupies one office in the offices of Univel, Inc., a general contracting firm in Cocoa Beach, Florida. Dynamic does not pay rent for the office, does not display company signs, nor does it have a telephone in its name. For the past three or four years, Dynamic has been associated with Univel according to an arrangement between Respondent and Kenneth Alles, Vice President of Univel, whereby Dynamic provided Respondent's services to Univel for the general supervision of construction projects. Under their oral agreement, the owner of a particular project would pay Dynamic a weekly sum through Univel for Respondent's services, and bonuses upon completion of a particular job for good performance. Respondent and Alles considered this arrangement to constitute a joint venture between the two general contracting firms. During the period Respondent was affiliated with Univel, he devoted his full time to its work which consisted of about a dozen projects. After approximately the first year of their association, Respondent began pulling the construction permits for the various jobs in the name of Dynamic Construction Company, Inc. Univel had a certified general contractor, David Boland, as its qualifying agent during that period until some time in late 1979. Additionally, Bruce Alles, a certified general contractor who is the son of Kenneth Alles, became a qualifying agent for Univel in the summer of 1979, but was inactive from about April, 1980 to April, 1981. In fact, from the time he became the qualifying agent, Bruce Alles did not perform any work as general contractor for Univel except one small remodeling job. Respondent has been in the construction business for approximately twenty years. The records of the Construction Industry Licensing Board fail to reflect that Respondent ever applied to be a qualifying agent for Univel, Inc., nor did he ever inform the Board of any intended affiliation with that firm. (Testimony of Respondent, K. Alles, B. Alles, Petitioner's Exhibits 4, 8) On November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., whereby Univel agreed to construct a 118-unit condominium project to be known as Harbour Cay Condominiums at Cocoa Beach, Florida. The work was to be conducted in three phases, the first phase consisting of 45 units, the second 55 units and certain villas, and a third phase consisting of 18 villas. Completion of the work was scheduled for April 30, 1982. The contractual cost of the Phase I portion of the project was set forth in the contract as $2,283,670, including a contractor's fee of 12% of such cost. The contract provided that payment of the contractor's fee was contingent upon provisions for payment of Towne Realty, Inc. under a separate agreement between that firm, Palm Harbor West, Inc., Ken Alles, and Scott Alles. Article 16 of the contract provided that each party shall approve the cost of the other to be charged to the project and in the event one party objected to such cost, the objecting party should be allowed to substitute its subcontractor, personnel or material supplier at a lesser cost, provided it did not delay completion of the project. On February 27, 1981, Dynamic and respondent as "Contractor" entered into an agreement with Palm Harbor West, Inc., Kenneth Alles, individually, and other corporations as "Developers" wherein it was agreed that the "Developers" would hold the "Contractor" harmless from third party claims arising from work performed by the Developers; personnel or agents on various projects, including Harbour Cay. (Petitioner's Exhibit 3, Respondent's Exhibit 5, Testimony of K. Alles) On October 28, 1980, Respondent applied to the City of Cocoa Beach, Florida for a building permit in the name of Dynamic Construction Company, to construct a five-story, 45-unit condominium whose owner was listed as Palm Harbor west. The listed project name was "Harbour Cay" and the architect or engineer was shown to be William Juhn. The building department, City of Cocoa Beach, issued the requested permit number B5263 on December 5, 1980. Permit conditions included the statement "All construction shall conform to the Southern Standard Building Code and other requirements of the City of Cocoa Beach, Florida." (Testimony of Respondent, Straub, Petitioner's Exhibits 7, 11) By Ordinance No. 608, dated October 18, 1979, the City of Cocoa Beach adopted the Standard Building Code as promulgated by the Southern Standard Building Congress International in 1979. Section 1601 of the Standard Building Code provides that all structures of reinforced concrete shall be designed and constructed in accordance with he provisions of Building Code Requirements for Reinforced Concrete, ACI 318 issued by the American Concrete Institute. Although Section 114 of the Standard Building Code purports to make it a misdemeanor for any person to violate the code or construct a building in violation of a detailed statement or drawing submitted and approved under the code, the Cocoa Beach Building Code, Article 1, Section 6-3 provides for penalties under a separate city ordinance for violating provisions of the standard building code or of the city building code. (Testimony of Straub, Petitioner's Exhibits 5B-C, 6, 14) Section 106.5 of the Standard Building Code provides that whenever the work to be covered by a permit involves construction under conditions which, in the opinion of the building official, are hazardous or complex, the building official shall require that the architect or engineer who signed the affidavit, or made the drawings or computations, shall supervise such work and be responsible for its conformity with the approved drawings. Pursuant to this provision, the building official of Cocoa Beach determined that the Harbour Cay project was complex and that he did not have sufficient personnel to provide inspection services. Accordingly, he made arrangements with Respondent and the owner's representative at the site, Jack Bennett, to have the project's structural design engineer, Harold Meeler, perform such services and provide daily inspection reports to the City. Meeler assumed such functions under an oral agreement with Univel, Inc. He had either inspected or assisted city inspectors to inspect all Univel projects since 1977. (Testimony of Straub, Meeler, Respondent's Exhibit 4) Two field superintendents supervised the on-site work at the Harbour Cay project One of these, Fred W. Rustman, was employed by Univel, Inc. and had fifty years experience. The other field superintendent was Patrick T. Alles, brother of Kenneth Alles, who was employed as a site superintendent by Towne Realty, Inc. a firm which owned Palm Harbor West, Inc. His immediate supervisor was Jack Bennett, also employed by Towne Realty, Inc., who served as the "owner's representative." Alles' function was to supervise the concrete and form work, and Rustman coordinated the balance of the job and approved vendor's bills. Rustman looked upon Bennett and Kenneth Alles as his immediate supervisors. Bennett primarily did office work such as pricing, insurance matters, time schedules, and the like. He described himself as the "anchor man" of the project who could always contact the other supervisory personnel because he stayed in place. Bennett conferred with Respondent on a daily basis and was of the view that Respondent had ultimate responsibility for the project because he was the general contractor. Kenneth Alles felt that he had ultimate responsibility for construction decisions for Univel, Inc. on the project, but looked to Respondent as having ultimate overall construction responsibility. (Testimony of Rustman, Bennett, K. Alles, Henderson, Petitioner's Exhibit 12, Respondent's Exhibit 1) Respondent's functions with respect to the Harbour Cay project were varied. Although he relied upon the field superintendents for immediate supervision of construction, he conferred with them periodically for resolution of problems. Ordinarily, general contractors do not perform immediate supervisory functions at the construction site. Respondent reviewed subcontractor bids and recommended awards to be made by Univel, Inc. Univel, Inc. supplied construction personnel for the project. Respondent arranged for rental of equipment, and coordinated with the project engineers, architect, and city officials. He approved payments to subcontractors, and ensured the payment of other bills submitted by suppliers which had been approved by the field superintendents. Problems that arose were usually resolved by joint decisions of Bennett, Kenneth Alles, and Respondent. Respondent's office was approximately 1,000 yards from the job site and he made it a practice to visit the site at least three times a week. (Testimony of Respondent, K. Alles, Bennett, Rustman, Lilley) Harold Meeler conducted frequent inspections of the project and rendered periodic reports reflecting such progress, commencing with garage construction in October, 1980. He was not aware of the identity of the general contractor and generally dealt with Bennett and the field superintendents. His general practice was to inspect in the late afternoon and dictate his reports in a tape recorder on site. The reports were later transcribed and submitted to Bennett. The city building officials expected these reports to be rendered on a weekly basis to him, but they were frequently slow in reaching his office. None of the reports included any indication of construction deficiencies, but merely related when the various construction stages had been completed. Testimony of Meeler, Bennett, Rustman, Straub, Respondent's Exhibit 3) The construction schedule followed at the Harbour Cay site was to prepare reinforcing steel bars for the columns on Mondays and Wednesdays by securing them with steel stirrups on the ground. They were then placed in position within the forms for the columns. Although the specifications and drawings did not show how to place the bars, the number per column ranged from 4 to 8 bars as called for in the design specifications. It was noted by the reinforcing steel subcontractor that the columns were too narrow to adequately space 4 bars per column. However, the only way in which they could be and were placed was to align 4 bars down each side of the column. Generally, the design drawings for a construction project show detail as to spacing. It was noted that some of the bars at the Harbour Cay site were overbent. Meeler inspected the bars on the ground and after the concrete columns had been poured, but noted no deficiencies in his reports. However, he did give instructions on many occasions on placement and addition of bars. He was able to check the position of the bars in the concrete columns by reason of the fact that they extended out of the column into the next floor. The concrete floor slabs were poured two days a week after the steel had been set and the columns poured. Section 108.2(e) of the Standard Building Code provides that reinforcing steel of any part of a building shall not be covered or concealed without first obtaining the approval of the building official, the designing architect, or engineer. (Testimony of Rogers, Meeler, Bennett, P. Alles, Petitioner's Exhibits 1-2, 5a) Patrick Alles, one of the field superintendents, did not start on the job until March 9, 1981, at which time the building had been completed through the third floor. On that day he observed hairline cracks in the slabs at the top and bottom of the columns. He was concerned and notified Meeler and Bennett of the existing condition. Meeler discussed the matter with A.M. Allen, a structural engineer who had actually done the design drawings, who joined him in an inspection. Allen told Meeler that there appeared to be no structural damage, but Alles thereafter added an extra line of 4 x 4 limber supports between the floors to reshore the building. Respondent was made aware of the problem but did not actually participate in the inspection and subsequent remedial work. (Testimony of Meeler, P. Alles, Respondent) On March 26, 1981, a surveyor for A. M. Allen who had worked on the Harbour Cay building "layout", was on-site and observed that several of the building columns between the fifth floor and the roof line appeared to be deflected, and that one of the columns had a sag. He called this to the attention of Patrick Alles and they estimated the amount of deflection. Alles was of the opinion that one corner column was about 3/4" out of vertical on the north corner, and the surveyor estimated a 1 1/4" deflection. No action was taken with regard to the condition of the columns (testimony of P. Alles, Adams) Meeler's last report, dated March 28, 1981, noted that on March 27th the roof slab was being poured. Subsequently the building collapsed and, shortly thereafter, Petitioner employed a registered professional engineer to conduct an investigation into the cause of the collapse. The engineer, Oscar Olsen, was accepted as an expert in structural engineering. He commenced his investigation several days after the collapse, at which time most of the debris had been removed from the job site. He inspected the broken slabs, columns, positions of rebar, thickness of slabs, and the steel stubbed out of the floor from the foundation and column locations which were still intact to determine the placement of steel, and number and size of bars. Comparing these with the specifications, he made an analysis of the design. He concluded that the primary cause of the building's collapse was a punching shear failure of the slab around the columns due to insufficient thickness of the slab, in combination with rather small columns. He attributed this deficiency to design failure. Although the design called for 8" thick slabs he found that in most cases the slabs were under the required eight inches varying from approximately 7 1/2 to 7 5/8". "Shear" is a tendency for the slab to separate from the column and just slide down it. Although the slabs did not all meet the thickness requirements of the specifications, this fact would have had only a small influence on the building failure. The actual shear stress exceeded allowable tolerances by two to three times and therefore the slabs should have been designed to be about ten inches thick. Steel bars in the columns coming out of the first floor level in several cases were considerably out of position in that they were too closely grouped, and in some cases, they were located completely over to one side of the column and in contact with the form. Such improper spacing violated Section 7.6.3 of the American Concrete Institute Building Code Requirements for reinforced concrete (ACI 318-77) in that the clear distance between longitudinal bars was not at least one and a half times the diameter of the bar, or one and a half times the diameter of the bar, or one and a half inches. The spacing also violated Section 7.6.4 of the Code which requires that the clear distance limitation between bars applies also to the clear distance between a contact lab splice and adjacent splices or bars. This violation is based on bars projecting out of the slabs that lapped bars in the column cage that came down from above, and did not maintain the same clear distance between adjacent groups or bars. The ACI Code, in Section 1.1.1, states that the Code provides minimum requirements for design and construction of reinforced concrete structural elements of any structure erected under requirements of the general building code, of which ACI Code forms a part. The improper placement of the reinforcing bars in the columns was not the initial cause of the building collapse, but could have aggravated the situation to some degree. Three of the columns were designed in such a manner that it would have been impossible for a contractor to meet the required ACI specifications, but the rest of them could have been done properly, although it would have been difficult to do so. Although the spacing problems can arise from the size of the reinforcing bars as designed by the engineer, it is normally the contractor's ultimate responsibility to ensure that the steel is properly placed and, if a problem in placement arises, he should call the matter to the attention of the engineer. The fact that the Harbour Cay building had some variation in the plumb line on the fifth floor was not a contributing cause to the building's failure. (Testimony of Olsen, Hunter, Petitioner's Exhibits 10, 13-14) The holes left by some 30 random concrete cores taken from slabs at the Harbour Cay site were measured by Warren Deatrick, Chief Engineer and Vice President of Universal Engineering and Testing Company, who is also the President of Orlando Concrete Contractors, Inc. The measurements showed that only three of the 30 cores were less than eight inches in thickness, being 7.5", 7.8", and 7.9" respectively. He noted that a number of other cores had been taken by others in the balcony areas which were designed to be approximately 1/2" less thick than the main floor slabs. Some of the main floor core holes measured more than eight inches in thickness, up to 8.4". Of the three situations involving less than eight inches in width, only the 7.5" core holes represented an excessive tolerance within reasonable construction practices, and it could have been caused by an inadvertent deflection or depression at the particular point. Due to the manner in which concrete settles in the forms and is troweled, there are always areas that tend to produce an uneven surface. Concrete contractors uniformly point out problems in steel placement to the design engineers and follow his instructions as to whether or not to change its position because he is the person who knows what is necessary according to the design, and is familiar with the basic allowable tolerances. (Testimony of Deatrick) On October 13, 1980, prior to the issuances of the building permit for the Harbour Cay project, the city engineer of Cocoa Beach reviewed the structural calculations for the project and found that they were in accordance with Chapter XII of the Southern Building Code Congress. (Respondent's Exhibit 2)
Recommendation That the Construction Industry Licensing Board suspend the certified general contractor's licenses of Respondent Lawrence for a period of six months pursuant to Section 489.129(1)(j), Florida Statutes, for violation of Section 489.119(2)(b), Florida Statutes. DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. Post Office Box 1386 Tallahassee, Florida 32302 Elmo R. Hoffman, Esquire 215 East Central Boulevard Orlando, Florida 32801 Mr. James K. Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32301
Findings Of Fact The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63. A minimum passing score is 70. Each correct answer was worth 4 points. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16. Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)." The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth. Referring to the plans in question, the opening between the foyer and the living room lacks jams. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination. The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed. DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 30th day of April, 1993. APPENDIX A The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3 Paragraph 6 Paragraph 4-8 Paragraph 7 Paragraph 9,10 Paragraph 8 Paragraph 11 COPIES FURNISHED: Isidoro Carrillo Post Office Box 1896 New Smyrna Beach, Florida 32170 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director DPR - Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The ultimate issue to be decided in this proceeding concerns whether the Petitioner C & M Building Systems, Inc. should be granted certification as a minority business enterprise. In order to make that determination it must be decided whether Maxine R. Chentnik, the president of the Petitioner corporation, and its minority group member owner, controls the management and daily operations of C & M Building Systems, Inc.
Findings Of Fact The Petitioner, C & M Building Systems, Inc., was incorporated in Florida on October 15, 1975. The Petitioner at that time operated under the name of Homes Unlimited, Inc. and was primarily engaged in residential construction contracting. Since that time, the name has changed to the present name of the Petitioner corporation and since at least the mid-1980's the primary business of the corporation has been commercial construction contracting. The net worth of the Petitioner corporation is under a million dollars and 60 percent of its stock is owned by Maxine R. Chentnik, an American female. Forty percent of the stock is owned by her husband Chester G. Chentnik. Mr. Chentnik has over 33 years experience in the construction business as well as a doctorate degree in business administration. For some twelve years he taught business management courses at Florida State University. Mrs. Chentnik has a bachelor of science degree in education and attended business college for approximately one year. Additionally, she has taken approximately 15 hours of college level courses in the fields of interior design and architectural drafting. Mrs. Chentnik's experience in the construction industry began when she and her husband built their own home in 1974. They served as their own contractors and Ms. Chentnik was most involved in that construction project since her husband worked full time at the university. This allowed her to gain experience in hiring and negotiating with subcontractors, arranging for payment of them, in ordering materials and supervising the construction of the home. She and her husband were in need of extra income and therefore she conceived the idea of starting their own residential construction business. When their Corporation, Homes Unlimited, Inc. formed, Mrs. Chentnik was unemployed and, since her husband was still employed at Florida State University, she devoted the majority of the time of the two owners and officers, to the operation of the business. After building their own home, various friends and other customers began engaging them to do residential building projects. Thus, from 1974 until 1982, they built approximately 12 residences. Some of these were built for speculation purposes. Mrs. Chentnik did part of the initial design of the homes, obtained prices from subcontractors, exercised supervision at the job site as to the manner of construction and maintained the books and records of the business. Mrs. Chentnik has never held a contractor's license herself. All of these projects were built using Mr. Chentnik's license. He did the estimating of materials needed, material and labor costs involved and arrived at prices to charge the owner or customer. He had similar managerial duties to those of Mrs. Chentnik. The supervision of the home construction was a joint project because Mr. Chentnik had more technical construction knowledge than Mrs. Chentnik due to his years of experience in construction. He had many years of construction experience working with his father prior to obtaining his college education. In 1982, Mr. Chentnik left his employment with Florida State University and engaged in the construction business full time. From 1983 to 1985, Homes Unlimited, Inc. was associated with Paragon Builders, a corporation which was owned by Mr. and Mrs. Chentnik and another couple. Paragon entered into a consultant agreement with Homes Unlimited by which Homes Unlimited was responsible for estimating material and labor needs, as well as job costs, for bidding purposes, and assembling, preparing and submitting bids. It was also charged with performing job site supervision of Paragon's construction projects. Mr. Chentnik performed under this consulting agreement for Homes Unlimited. Mrs. Chentnik was less active in the business operations at that time due to her child rearing duties. In 1985, the relationship between Homes Unlimited and Paragon Builders came to an end and Paragon Builders, Inc. was dissolved. Homes Unlimited had become primarily a commercial construction contracting company and as a result the name was changed to that of C & M Building Systems, Inc. in November, 1985. The initial directors of Homes Unlimited and C & M Building System corporation were Chester G. Chentnik and Maxine R. Chentnik. The articles of incorporation provide that there should not be less than two directors. The articles also provide that the initial bylaws of the corporation must be adopted by the Board of Directors, and that the Board has the power to amend them. Article 3 Section 2 of the Bylaws at present, provides that the number of directors shall be two and that the affairs of the corporation shall be managed by the Board of Directors. The Bylaws provide that the Board of Directors shall be elected by the shareholders at the annual meeting. Section 12 also provides for cumulative voting for election of the Board members, meaning that at each election of the Board, each shareholder shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected or he may accumulate his votes by giving one candidate as many votes as the number of directors to be elected, multiplied by the number of his shares, or by distributing those votes on the same principle among any number of candidates. The Bylaws provide that a majority of the directors constitutes a quorum for the transaction of business. Article 4 Section 1 of the Bylaws provides for a president, vice president, a secretary, and treasurer. All must be elected by the Board of Directors. The president is the chief executive officer of the corporation, subject to control by the Board. The president may execute contracts or other documents which the Board authorizes, as can the secretary or other officers. In January, 1986, the Board passed a resolution providing that estimates of the costs of work proposed to be done by the corporation are to be prepared by the president or secretary and that any proposal submitted by the corporation must be prepared, examined by and submitted to the president or secretary. It is also required that all orders for materials are to be given in writing by the president and secretary or by either of them acting with the consent of the other. No order is valid unless signed by the president or secretary. Contracts for the performance of work are valid only when signed by the president or vice president and by the treasurer or secretary. In April, 1986, C & M, by resolution of its Board, entered into an agreement with CGC Company whereby CGC would thereafter provide "all bidding, on-site management, and "special administrative services" (subject to the ultimate management power being vested in C & M's Board of Directors). CGC is to be compensated for these services at the rate of $1,000 per month, plus a performance fee at the end of each fiscal year, as determined by C & M's Board of Directors, based upon C & M's profitability during the preceding fiscal year. Chester Chentnik is the president of CGC Company and performs the services involved in construction site management, preparation of bids and the like. Mr. and Mrs. Chentnik have alternated at being president of C & M since its incorporation (under its original name) in 1975. Mr. Chentnik was first elected president and Mrs. Chentnik was elected vice president, as well as secretary- treasurer. Mr. Chentnik was president in 1976, 1978, 1980, 1982, 1984, 1986 and 1987. Mrs. Chentnik was president on alternate years beginning in 1977 and was president in 1988 and to the present. Mr. Chentnik explained that the alternating presidencies were intended to more evenly divide the workload involved in signing documents. Mr. Chentnik is currently the vice president and secretary-treasurer of the corporation. In 1986 and 1987, Mrs. Chentnik was employed with a real estate firm and Mr. Chentnik primarily ran C & M operations by himself. The Petitioner is currently working on construction projects involving the Florida A & M University President's residence, the Department of Transportation building; the computer room in the Carlton Building, a bus washing facility for the Leon County School Board, as well as a renovation project for the Florida Bar. Those projects are being performed under Mr. Chentnik's license. Mr. Richard Farrell was employed with C & M as a building superintendent and placed his contractor's license with C & M. His license was not used for any contracts presently being performed by C & M, however. Mr. Farrell is no longer an employee and is not performing work for C & M. Mr. Farrell now manages a related mill-work manufacturing company owned by the Chentniks, but is not performing any construction work or supervision for C & M. The decision to hire Mr. Farrell was a joint one by both Mr. and Mrs. Chentnik. His direct supervisor was Mr. Chentnik, although both Mr. and Mrs. Chentnik had supervisory authority over him. In any event, Mr. Chentnik's license is now the license qualifying the company as a construction contractor for purposes of Chapter 489, Florida Statutes, and the authority of the Construction Industry Licensing Board. Mr. Chentnik does the estimating for the company, prepares bids for jobs, is responsible for supervision of the construction details of the business, as well as for construction site management. On those bidding situations when he does not prepare the entire bid, he generally prepares the cost estimate portion of it and the remainder of the bid, concerning the addition of "overhead", and profit increments, are prepared jointly with Mrs. Chentnik. He also deals with the architects, engineers, and subcontractors, especially at the job site, and, since Mr. Farrell's departure, has taken over his job site supervision responsibilities. Mr. Chentnik has signed contracts for the company, executed change orders, pay requests, contract amendments, purchase orders and has prepared and submitted bids on behalf of the corporation. Mr. Chentnik signed the Department of Transportation contract in June, 1988 and an amendment to that contract in December of 1988. He also signed signed certain change orders to the Florida Bar contract in both September and November, 1988. The Carlton Building computer room bid was signed by Mr. Chentnik in September, 1988, as well as a change order for the Florida A & M University project which he signed in November, 1988. Mrs. Chentnik does not hold a contractor's license herself. She does all the bookkeeping for the company, pays the bills, and deals with the banks; in terms of checking and savings account deposits, withdrawals, as well as arranging credit. She has signed certain notes and lines of credit herself. She orders supplies and takes care of the insurance needs of the business and monitors which construction projects are coming up for bid, and obtains plans for them for the company to consider. She also contacts subcontractors for prices, attends bid openings, and arranges for bonding for the company for the jobs it undertakes. She assists in preparation of bids, especially the supplying of figures for overhead and profit on bids the company submits. She shares in the supervision of employees with her husband and directly supervises one employee, a part-time clerical helper. The company secures a great deal of its business by competitive bidding. Cost estimating is an important part of the bidding process. This estimating is performed primarily by Mr. Chentnik. Mr. Chentnik also developed the computer program to assist the company in its bidding efforts. The bidding program contains a range of percentages of overhead and profit which the company can add to the cost estimates on its bid to arrive at its most advantageous bid price. Mrs. Chentnik typically chooses a percentage for overhead and profit from the ranges set by the computer program. Mrs. Chentnik does not prepare entire estimates or bids herself. In all nearly cases her husband has assisted her. Mrs. Chentnik did prepare an entire bid for a flagpole project, valued at approximately $3500. In essence then, the decisions concerning which projects the company bids and which it declines to bid on have been joint decisions of Mr. and Mrs. Chentnik. They have usually jointly prepared bids, with Mr. Chentnik doing the greater part of that effort in providing the cost estimates. Both of them have historically negotiated prices with subcontractors in order to obtain figures for costs for a given project, in the course of preparation of a bid, however. The company has a checking account, a money market account and holds certificates of deposit. Both the Chentniks have equal drawing rights on all the accounts. The decision as to what amount of money to be placed in certificates of deposit is usually a joint decision. Both Mr. and Mrs. Chentnik have previously signed as personal guarantors on debt instruments for the company. Although Mrs. Chentnik does most of the banking business on behalf of the company, neither Mr. nor Mrs. Chentnik has sole control or authority over the bank accounts and the banking relationships of the corporation.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered denying the request for certification as a minority business enterprise of C & M Building Systems, Inc. DONE and ENTERED this 5th day of September, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2758 Petitioner's Proposed Findings of Fact (The rulings below relate, by number, sequentially, to the unnumbered paragraphs of the Petitioner's proposed findings of fact) Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely comporting with the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not, in itself, dispositive of material issues presented. Respondent's Proposed Findings of Fact 1-15. Accepted Rejected as unnecessary and not dispositive of material issues. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 25-29. Accepted. COPIES FURNISHED: James O. Shelfer, Esquire Gardner, Shelfer & Duggar 1300 Thomaswood Drive Tallahassee, Florida 32312 Susan B. Kirkland General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida licensed professional engineer, holding license number PE 45941. There have been no prior disciplinary proceedings against the Respondent. The Respondent acted as the general contractor in the construction of his personal residence, which is the structure at issue in this proceeding. There is no evidence that the structure, as built, fails to meet applicable standards and requirements. On December 16, 1999, the Respondent submitted to the City of Clearwater Building Department, 29 sheets of building plans for alterations to the Respondent's residence. Of the 29 sheets, three were apparently signed and sealed by an engineer identified as Shields E. Clark, P.E., who did not testify at the hearing. Nineteen of the 29 sheets contain the statement, "[a] windload review of this plan has been made by Shields E. Clark, P.E. and it is certified to be in compliance with Section 1606 of the Standard Building Code 1994." The plans apparently confused the Clearwater Building Department official who reviewed the material. He asked the Respondent to meet with him and explain the project. The meeting occurred on or about January 10, 2000. During the meeting, the Respondent signed and sealed 22 of the 29 sheets; afterwards, the reviewing official noted they were unsigned. Four sheets of the initial plans were not signed and sealed by anyone. The Clearwater Building Department relies on the engineering certification in determining whether plans should be approved. The Respondent signed and sealed the plans as a professional engineer and the plans were approved. As to all of the plans submitted by the Respondent to the Clearwater Building Department, the Petitioner presented the expert testimony of James Owen Power, a Florida licensed engineer. Mr. Power's testimony was persuasive and is credited. (Sheet numbers identified herein reference the page numbers in Joint Exhibit 1.) According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on December 16, 1999. The deficiencies noted by Mr. Power include: the failure to specify which of two methods was used in calculating compliance with Southern Building Code windload requirements; depiction of a three-foot overhang projection on sheet 12 which is not depicted on other pages in the same plans; lack of a footing under a center post (sheet 19); lack of a beam at the center post to indicate what is being supported (sheet 21); inadequate support of the center post (sheet 22); a failure to provide for transfer of a portion of the roof load to an appropriate support (sheet 22); inadequate support for the load being carried (sheet 23); and depiction of a sample wall section atypical of all conditions throughout the proposed construction. On March 15, 2000, the Respondent submitted a 22-page set of drawings to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 14, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 15, 2000. The deficiencies noted by Mr. Power include: the failure to indicate whether differences in foundation, floor and roof framing, between the initial plan submission and the March 15 submission, were to be regarded as substituted plans or changes to the initial plans; the failure on five sheets to refer to windload certification; the failure to correlate position of cross beams to posts (sheet 43); differing numbers and locations of cross beams within the plan submission (sheets 43 and 44); a cantilevered wall that is identified without appropriate detailing; omission on sheet 45 of a "transverse" beam depicted on sheet 44; depiction of a wall not previously shown and two previously un-shown beams over the garage door (sheet 46); the appearance of a previously un-shown and unspecified pipe column in the middle of the garage opening (sheet 46); the lack of proper identification of a post and partition depicted on the column view (sheet 47); inconsistent identification of the dimensions of a balcony overhang (sheets 43, 49 and 52); and alteration of original rafter sizes without notice of the change (sheet 63). On March 28, 2000, the Respondent submitted an 11-page set of drawings and two sheets of cost estimates to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 28, 2000. The deficiencies noted by Mr. Power include: omission of a footing and pipe column depicted in the second set of plans without notification of change (sheet 31); the inability to determine the intent of "back addition lower plan" (sheet 32); alteration of the notation of a wall from the second set of plans (sheet 33); inconsistent depiction of the new wall foundation at the left side of the structure (sheet 33); inconsistent identification of the footing at the center of the garage opening (sheets 31, 33, and 34); inconsistent depiction of footers (sheets 34 and 35); inconsistent depiction of columns and beams (sheets 33, 34 and 35); and alteration in the manner of depicting partitions within the structure from the depiction contained in the initial submission (sheet 37). On June 12, 2000, the Respondent submitted another 11- page set of plans to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on June 12, 2000. The deficiencies noted by Mr. Power include: identification of beams as "optional" without defining the requirements of either option (sheets 64 and 65); depiction of knee braces not previously identified in previous plans (sheet 65); inconsistent depiction of partitions (sheets 65 and 69); alteration of wall width from second plan submission without adequate notification of change (sheets 49 and 66); depiction of knee braces without proper consideration of lateral load (sheet 66); depiction of a diagonal structure the intent of which is unclear (sheet 68); inconsistent depiction of a center joist (sheets 38 and 69); alteration to the previous depiction of rafters without notification (sheet 67); deletion of footing and a column in the center of the garage opening without notification (sheets 68 and 70); and the addition of a door to the left of the garage opening without notification of change from prior submissions. The Respondent's building plan submissions fail to meet professional standards. Structural elements were added, altered, and deleted without appropriate notification, and within submissions, elements were inconsistently depicted. The Respondent's failure to meet professional standards resulted in building plans that were ambiguous and unclear.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order reprimanding Phillip J. Matonte, P.E., for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 11th day of April, 2002. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 J. Robert Griffin, Esquire Tilton & Metzger, P.A. 1435 East Piedmont Drive, Suite 210 Tallahassee, Florida 32308 Natalie A. Lowe, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
