Findings Of Fact At all times pertinent to the issues herein, the Pinellas County Construction Licensing Board was the county agency responsible for the certification of contractors in Pinellas County and the regulation of the contracting industry therein. Respondent, Phillip Gibson, was certified by Pinellas County as a tile and marble specialty contractor under license C-6053. On or about November 8, 1994, Respondent contracted with Myron J. Mensh, a home owner in St. Petersburg, to construct a block wall and apply stone veneer thereto at his residence located at 3018 82nd Way N. Also included in the agreement was the removal of an existing railroad tie wall and the removal of some dirt retained by the ties. Respondent was the contractor chosen by Mr. Mensh from several who were solicited for the job. Though there was no written contract, the parties agreed on a price of $3,900 for the work to be done and in early November, 1994, Mr. Mensh paid Respondent a deposit of $2,000. Respondent proceeded to accomplish most of the work called for, and on November 14, 1994, he advised Mrs. Mensh that the work was just about finished. The block wall had been constructed and the stone veneer applied to the top and outside face of the wall. The Menches had made separate arrangements to have the ties removed from the property by someone else, and this saved Respondent an $800 fee for their disposal, had he been required to take them to the dump. As it was, the Menshes agreed with some other individual to remove the ties and use them someplace else, and the only expense involved was $50 for the rental of a truck used to haul the ties away. This $50 was, by agreement of the parties, to be deducted from the $3,900 fee for Respondent's services. Respondent indicates that when he contracted with the Menshes for the work in issue here, they walked the property in advance and at that time there was no talk of putting any stone down the wall inside the planter. Respondent claims that when he walked through the project with Mrs. Mensh when, he claims, it was completed, she agreed that the stone facing on the side of the wall facing the house, which was the retaining wall for flower beds, should not be faced with stone, and the cinder block surface should be left uncovered. He claims she indicated the beds would filled to the top with dirt and there would be no reason to put either stone or stucco over the block. Had Respondent known the Menshes wanted stone down the inside of the planter, he would have extended the stone on the top of the wall out somewhat over the edge to cover the down course of stone. As it was, when the issue was raised, he attempted to place stone down the inside wall with the top exposed and it did not look at all good. He also claims that when he asked Ms. Mensh where the dirt from behind the ties was to be placed, earlier in the process, she advised him to pile it around the magnolia tree and she would have her gardener remove it to another location for use elsewhere. It would appear that Mrs. Mensh was satisfied with the work done as she advised Respondent to contact Mr. Mensh at his office to pick up the balance due. When he did so, he was paid. However, when Mr. Mensh returned to the home after making payment in full, he was not satisfied that the stone facing was not placed on the block wall inside the flower beds, and that the dirt still remained around the magnolia. As a result, Mr. Mensh repeatedly called the phone numbers he had for the Respondent in order to get the relief he desired but was unable to reach Respondent. Neither did Respondent return any of Mr. Mensh's calls, even though a female, identifying herself as Mrs. Gibson, said she was taking messages for him. In a December 6, 1994 phone call, this same lady admitted Respondent was in the house but would not take Mensh's call, promising to call back the next day. He did not do so. On December 12, 1994, Mr. Mensh sent Respondent a certified letter which was received, but he received no response. Because of this, he filed the complaint in issue. The evidence also indicates, and Mr. Mensh admits, that sometime subsequent to completion of the work but before the filing of the complaint, Mr. Mensh solicited the Respondent to cut away some stone around the fireplace inside Mr. Mensh's house to prepare for the installation of a fire screen. Respondent did this, but was unable to pour any concrete for the screen since the screen was not present. When the screen was subsequently delivered by another tradesman, and Mr. Mensh called Respondent to come back to install it, Respondent declined to do so. The preparation of the fireplace for the installation of the screen was not a part of the agreement in issue here, and there is no evidence that Respondent was obligated to do the stone removal or the concrete work around the screen when the screen was put in place. Mr. Mensh claims now that he paid someone else a nominal fee to have the dirt which was piled around the tree removed, and that is not a problem for him. His dissatisfaction rests with the fact that because the installation of stone over the uncovered bed wall is such a small job, he cannot now get anyone to do it. Respondent claims that when he cut the stone around the fireplace, after completion of the outside work which forms the basis of the complaint herein, no mention was made by either Mr. or Mrs. Mensh of their now-stated dissatisfaction with the bed wall. He also claims that when he finished the outside work, he carefully cleaned up the work site, removing all excess stone fragments and other materials, excluding the dirt, which, he claims, he was told by Mrs. Mensh to leave around the tree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint in issue against Respondent, Phillip Gibson, be dismissed. RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 2nd day of November, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Phillip Gibson 4200 32nd Avenue North St. Petersburg, Florida 22713
Findings Of Fact The Respondent is a certified building contractor, having been issued license number CB C011621 as an individual contractor. The Petitioner is an agency of the State of Florida, having responsibility and authority to license building contractors and to regulate their licensure status and their standards of practice pursuant to Chapter 489, Florida Statutes. Sometime in December, 1979, the Respondent, doing business as Economy Steel Buildings, Inc., entered into a contract with Digital Machine and Tool Company to construct a steel building for that firm. The Respondent subsequently commenced the construction on land owned by Digital Machine and Tool Company and obtained a permit from Seminole County on December 6, 1979, authorizing the installation of a septic tank. On the face of the permit appeared language containing the specification that the "stub-out" or pipe exiting the septic tank be installed 12 inches above the original grade level. The Respondent observed that language on the face of the building permit and knew and understood its import, as his own testimony reveals. The Respondent subsequently subcontracted the installation of the septic tank to a company known as Al's Septic Tanks, which installed the tank and drain field during the early part of February, 1980. On February 10, 1980, an inspector for the Seminole County Health Department, Don Gross, inspected the septic tank installation and informed the subcontractor and the Respondent that it was not in conformance with Section 10D-6.25(2)(e), Florida Administrative Code, in that the subcontractor had not followed the instructions on the face of the building permit (12 inches above grade level), which were designed to satisfy that Administrative Code section. Sometime between February 10, 1980, and the end of April, 1980, the Respondent received a "Notice of Violation" from the Seminole County Health Department regarding the alleged improper installation of the septic tank. The Respondent admitted that sometime soon after installation of the septic tank he became aware that it did not pass the Seminole County Health Department inspection. The Respondent maintained that he made three attempts to contact the Health Department regarding the Notice of Violation during the month of April, 1980, but he introduced no competent, substantial evidence to show what efforts, if any, he made to correct the installation of the septic tank. There were ongoing disputes between Digital Machine and Tool Company, its representative, Galon Lyell, and the Respondent during this period, and on May 21, 1980, the Respondent was told to stay off the premises and perform no further construction on the site. There arose at about this time a civil dispute between the Respondent and Digital Machine and Tool Company which is outside the scope of this proceeding. In any event, the Respondent did not correct the installation of the septic tank and there is no question that the septic tank was not installed with the "stub-out" pipe 12 inches above the original grade level. Digital Machine and Tool Company later obtained a corrected installation of the septic tank so that it would be "stubbed-out 12 inches above original grade" from a different subcontractor, at its own additional expense, in the amount of $855. From the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting under the name of Economy Steel Buildings, Inc. The Respondent admitted that he was fully aware, as of November 19, 1979, that he could not properly perform contracting work under the name, Economy Steel Buildings, Inc., without properly qualifying that company. After a Notice of Violation (Respondent's Exhibit 6) was issued by the Construction Industry Licensing Board through Investigator Hunter, the Respondent was aware that contracting under an unqualified company name was improper. After that Notice of Violation, the Respondent made some attempts to separate his personal contracting business from that of his material supply company, Economy Steel Buildings, Inc. The Respondent, however, accepted payment for contracting and materials from his client, Digital Machine and Tool Company, for the subject project in the name of Economy Steel Buildings, Inc. The Respondent also paid Myron Roseland, a subcontractor, from Economy Steel Buildings, Inc.'s account for work attributable to the Digital Machine and Tool project. Finally, Petitioner's Exhibit 5 establishes that the Respondent attempted to discharge personal liability as a contractor, which attached to him through the Digital Machine and Tool Company project and other projects, by declaring bankruptcy pursuant to Chapter 11 of the Federal Bankruptcy Act as Economy Steel Buildings, Inc., since in that petition he listed numerous subcontractors, including Myron Roseland, who performed work on the Digital Machine and Tool Company job, as creditors of that corporation to be discharged. In summary, during the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting work as Economy Steel Buildings, Inc. During that time period, Economy Steel Buildings, Inc., was not properly qualified or registered with the Construction Industry Licensing Board by the Respondent, who was the owner and sole stockholder of Economy Steel Buildings, Inc.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, 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 Petitioner finding the Respondent guilty of the violations alleged in Counts III and IV of the Amended Administrative Complaint and imposing an administrative fine of $1,000. The administrative fine should be suspended in part, provided the Respondent provides proof within sixty (60) days from the date thereof that he has made restitution to Digital Machine and Tool Company for the $855 it had to expend to obtain correction of the improper septic tank installation, as well as restitution of monies owed to Mr. Myron Roseland attributable to the Digital Machine and Tool Company project, in which event the Respondent's fine should be reduced to $250. DONE AND ENTERED this 10th day of February, 1983, at Tallahassee, Florida. P. MICHAEL RUFF, 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 10th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James R. Lavigne, Esquire 1971 Lee Road Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact King Royer, Inc., the Petitioner, and the State of Florida, Department of General Services, entered into a contract dated October 15, 1974, for the construction of vocational facilities at the Union Correctional Institution at Raiford, Florida. A copy of the contract agreement is Petitioner's Exhibit No. 3, the plans for the project are Petitioner's Exhibit No. 1, and the specifications for the project are Petitioner's Exhibit No. 2, all admitted into evidence. The contract has been completed and a certificate of contract completion issued by the Department of General Services as reflected in the copy of that certificate which is Respondent's Exhibit No. 18, admitted into evidence. The certificate of contract completion is attended by a letter of explanation from the architectural firm in charge of the project which letter is Respondent's Exhibit No. 19, admitted into evidence. This certificate of contract completion makes reference to change order No. 2, and a copy of change order No. 2 has been admitted into evidence as Petitioner's Exhibit No. 4. This cafe is brought pursuant to Article 8.5 of the contract document, Form of Agreement Between Contractor and Owner for Construction of Buildings, which calls for claims and disputes to be appealed to the Department of General Services for hearing. Those specific claims of appeal are promoted by two documents. The first document is the letter of July 16, 1975, by King Royer as president of the Petitioner corporation. This letter is addressed to the Director of the Department of General Services and is treated as the appeal document. There are five items within this element of the appeal which are listed as follows: "(1) Extension of tire for completion of the project, due to late delivery of the engineered metal building, and delays in completing corrective work of which we were informed only a few days before scheduled completion of the project. Removal of concrete floor which we believed to be 4" thick on the plans, but for which the Architect contends 6" thickness is required. Removal of approximately 2,500 square feet of slab which we contend was substantially in accordance with the contract and adequate for the intended purpose. Temporary bracing for the building, not necessary for any possible loads on such bracing, during removal of the concrete slab. Painting of interior metal structure, not required by the plans and specifications." Paragraphs one and four of this letter/petition will not be considered in substance, for reasons which will be set forth in the section of this recommended order, entitled Conclusions of Law. The second element of the appeal concerned an amendment to the appeal for purposes of considering change order No. 2, which is Petitioner's Exhibit No. 4. This amendment was entered into by stipulation and agreement of counsel for the parties. The stipulation and agreement, indicated that the appeal could consider the elements of the change order to this extent: (1) The element on extension of time due to inclement weather; (2) liquidated damages, only those elements where the liquidated damages pertain to delays associated with the removal of the concrete floor slabs reflected in paragraphs two and three of the original appeal and the painting of interior metal structures as indicated in paragraph five of the original appeal; (3) additional testing shown in the change order; (4) additional services of the structural engineer shown in the change order; and (5) additional services, of the architects and engineering firm, shown in the change order. The first it ruled to be a proper subject for consideration in this appeal, was item two of the July 16, 1975, appeal. As mentioned before this item deals with the removal of a concrete floor which the Petitioner contends was supposed to be 4" thick in accordance with the plans and for which the architect in speaking for the Respondent claims should have been 6" thick to comply with the plans. This area is shown at page 2 of 27 in Petitioner's Exhibit No. 1, which is to plan of the project. The area is found between column line A as a southern boundary and it's northern boundary is a common line extended from the northern wall of the auto mechanics shop. Its eastern boundary runs along column line 5, than proceed through an area approximately 4' 10" wide from column line 5, west to the eastern most wall of classroom 1, and then inset to the eastern wall of the instructor's office No. 1, and then inset to the small closet like area identified as No. 1, these latter dimensions making up the western boundary of the disputed area. In the initial pour of the concrete in that area, the depth of the pour was 4" and was so intended by the Petitioner. The architect of the project discovered that the depth was 4" and not 6" and ordered that this section of the concrete slab be removed. The removal was effected and the cost of that removal and reinstallation is at issue in the appeal. Sheet 5-2, which is at page 14 of 27 of Petitioner's Exhibit No. 1, calls for a 6" concrete slab in the auto mechanics shop and this auto mechanics shop is that area identified on Sheet 2 of 27 of Petitioner's Exhibit No. 1, and includes the disputed area previously described before. Since the initial pour was 4" instead of 6" in the area as described, the Petitioner was not in compliance with the plans and the architect was correct to cause the removal of the initial pour and the substitution of the 6 " pour. Item three in the appeal, set forth on July 16, 1975, questions the requirement for the removal of approximately 2500 square feet of slab which the Petitioner contended was in substantial compliance with the contract and adequate for the intended purpose. This area would be constituted of the remaining aspect of the auto mechanic shop which has not previously been identified in discussing item No. 2. Its southern boundary begins at the intersection of column line A and 1, thence along column line A to the intersection with column line five; go dawn column line 5 from that point to the intersection with the first wall encountered to locate the western boundary; then along that wall east to an intersection of the wall and column line 1 to locate the northern boundary; and then south along column line 1, to the intersection of column line 1 and column line A, to locate the eastern boundary. When the Petitioner initially poured the concrete slab in this area it placed the welded wire fabric by such a method that fabric sunk to the bottom or near bottom of the concrete slab, in violation of Division 3.2C. of the specifications, which call for the welded wire fabric to be placed in the center of the slab. Approximately a week after the floor was poured a Case No. 584 diesel forklift which weighs 10,000 pounds was driven onto the newly poured slab in the auto mechanics area, 100 to 150 times carrying approximately 1500 pounds of structural members on each run. Subsequent to the time that the mesh sunk to the bottom or the near bottom of the concrete floor slab, cracks were discovered in the surface of the floor of the auto mechanics shop and these cracks are determined to be structural cracks. These structural cracks were promoted in part by the location of the mesh in the concrete slab and by the traffic of the fork lift. The location of the mesh may be seen in Petitioner's Exhibit No. 11 which is a photograph of the auto mechanics slab when it was being removed and also in the Respondent's Exhibit No. 9 which is a core sample taken from the auto mechanics area. The nature of the structural cracks is shown by hand drawn lines placed on number 5-2, at page 14 of 27 of Petitioner's Exhibit No. 1, the pencil lines being drawn by Villany Hausner, the structural engineer on the project and the red lines being drawn by Jeff Hoxie, the project architect. This floor slab in the auto mechanics area was also dusted in contravention of Division 3.11A of the specifications which prohibits dusting of the exposed slab. The Petitioner tried to demonstrate that the cracks found on the surface of the concrete slab in the auto mechanics shop were not structural in nature by driving a 38,000 pound concrete truck onto the slab in the auto mechanics area in excess of two months after the pour. This test is found to be inadequate to overcome the conclusion that the cracks were structural in nature in that the test was not properly designed. The Petitioner was offered an opportunity for utilizing a properly designed test at its expense, as prescribed by the architect but the Petitioner did not respond to this offer. There was conflicting evidence about the depth of the initial pour in the area of the 2500 square feet. Respondent's Exhibit No. 1 seems to indicate that a test performed by the Petitioner showed the depth to be substandard but other Exhibits by the Petitioner, namely Petitioner's Exhibits No. 11 and No. 12 show photographs of the concrete slab being torn out indicating that the depth approximated 7". There is also an Exhibit, Respondent's No. 9 which was a core sample taken from the auto mechanics area, but it is not clear what section of the auto mechanics area it was taken from, whether in the 2500 square foot area or in the narrow area 4' X 10" which was mentioned in the point No. 2 of the appeal of July 16, 1975. After reviewing the evidence on the depth of the slab, it is not clear what the true depth was on an average, in the 2500 square foot section. Nonetheless, based on the structural cracks, as explained by the mesh location and to a lesser extent by the driving of the fork lift truck onto the slab, the initial pour of to 2500 square feet was not in compliance with the contract and tie architect was correct in having the slab removed when the Petitioner failed to respond to his offer to have the slab tested. Item No. 5 in the July 16, 1975 appeal pertains to the painting of the interior metal structures and the Petitioner claims that these metal structures are not required by the plans and specifications to be painted. The Petitioner promotes his argument by reference to Division No. 9 of the specifications, particularly 3.7A of Section 9F, which is found on page 9F-8. This part, 3.7A says, "do not paint . . . pre-finished item as specified under Division 13- special construction." Therefore, it is the Petitioner's contention that any item found in Division 13 should not be painted. However, Division 13 in its Section 13B, 3.1C found at page 13B-2, says, "give one shop coat of paint as specified herein to all steel surfaces . . ." This statement is further supported by Division 9, Section 9F, 3.6B(3) at page 9F-7, which says that ferrous metals, including shop painted items will have one coat of rust inhibiting primer and one coat of interior gloss oil house paint. Therefore, the reference 3.7A in Section 9-F of Division 9 does not exclude all so called pre-finished items as specified under Division 13 from painting and the architect was correct in insisting that all interior metal structures which were not in fact pre-finished be given a shop coat, one coat of rust inhibiting primer, and one coat interior gloss oil house paint, as necessary. The second aspect of the appeal concerns change order No. 2. The parties agreed that the 20 day extension of time due to inclement weather should be awarded to the Petitioner at $50 a day for a total amount of $1,000. The second item of the change order concerning liquidated damages in the amount of $1,800 is sustained in view of the fact that only those items pertaining to the removal of the floor slab and painting of the structural members could be considered in addressing the liquidated damages, because of the prior stipulation. Therefore, the architect being found correct in his actions, the liquidated damages should stand. Items 3-5 in the change order concerning additional testing, additional services of the structural engineer and additional services of the architect and engineering firm are proper cost items in view of the problems associated with the floor slab and the appeal of their assessment should be rejected.
Recommendation It is recommended that those items found in the July 16, 1975 letter of appeal offered by the Petitioner not be allowed. It is further recommended that the matters as set forth in the amendment to the petition as found in change order No. 2 be allowed only to the extent of an award of $1,000 for extension of time due to inclement the technique considered acceptable far reimbursement of the amount of $1,000, regardless of the decision on the other matters of the appeal. DONE and ENTERED this 12th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John A. Barley, Esquire Assistant Attorney General Room 115, Larson Building Tallahassee, Florida 32304 John F. Roscow, III, Esquire Post Office Drawer C Gainesville, Florida 32602 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should imposed.
Findings Of Fact Preliminary matters Petitioner, Department of Business and Professional Regulation (Department), is a state agency charged with the responsibility, inter alia, of regulating the practice of contracting and, pertinent to this case, prosecuting administrative complaints for the unlicensed practice of contracting, pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Edward Irons, is not now, nor was he ever, licensed by the Department to engage in the business or profession of contracting in the State of Florida. Irons Contracting For some time prior to August 1992, Respondent's brother, Gerry Irons, was engaged in the business of contracting in the State of New York. At the time, Gerry Irons was licensed by the State of New York as a contractor, and did business as Irons Contracting. Respondent was not present in New York State during that period, and had no interest or involvement with his brother's business. Following the landfall of Hurricane Andrew in August 1992, and the opportunities it presented to the construction industry, Gerry Irons relocated to Fort Lauderdale, Florida. There he engaged in construction related activities under the name Irons Contracting, and, when joined by Respondent as discussed infra, he was engaged by Tank Mangoya, a licensed contractor, to assist in the repair of residential damage caused by Hurricane Andrew. At no time was Gerry Irons or Irons Contracting licensed or certified as a contractor by the State of Florida. The Respondent and his involvement with Irons Contracting Respondent, Edward Irons, was born December 13, 1948, and completed his formal education with graduation from high school. His training and experience post-high school, to the extent it appears of record, was shown to include boat repair (painting and varnishing), but not construction related activities (until his employment by his brother, discussed infra, in or about August 1993). At the time of hearing, Respondent was engaged in reconditioning (washing, waxing, and buffing) automobiles. Personally, Respondent presents as a well, if soft- spoken gentleman, who is pleasant, candid, and credible. At or about the time Gerry Irons relocated to southeast Florida, Respondent was residing in Venezuela with his family, aboard his boat, and had so resided for approximately one year. Previously, Respondent and his family had resided in the Bahamas for approximately five years. In or about August 1993, about a year after Hurricane Andrew struck southeast Florida, the Irons family began their return voyage to the United States. At some point during the voyage they encountered a storm, which severely damaged their boat. Fortunately, Respondent was able to run the boat aground on an island; however, the boat, as well as the family's possessions, were lost. Lacking insurance, Respondent's family was rendered homeless, and without any means of support. Responding to his brother's call, Gerry Irons offered the family accommodations at his home, and sent them money and airplane tickets for their return. Upon their return, Respondent's family resided with Gerry Irons for about six months, after which they relocated to South Carolina. In the interim, Gerry Irons employed Respondent to work in his business (Irons Contracting). At the time of Respondent's initial employment, Gerry Irons was engaged by Tank Mangoya, a licensed contractor, to assist him in repairing residential damage suffered by Hurricane Andrew. Under his arrangement with Mangoya, Gerry Irons included Respondent's time in his billings to Mangoya. Mangoya would pay the bill submitted by Gerry Irons, and Gerry Irons would pay Respondent for his labors. Toward the end of 1993, Mangoya laid-off Gerry Irons and, consequently, Respondent. At the time, or immediately prior, Irons Contracting had been working under Mangoya repairing a home for the Chasner family in southwest Dade County. The Chasner family was apparently satisfied with the work performed because when asked by a neighbor, Ms. Sally Stern, they recommended Irons Contracting. At the time, Ms. Stern was renting a home in the neighborhood, having been displaced from her residence at 10452 Southwest 114th Street, Miami, Florida, because of damage caused by Hurricane Andrew. Apparently, she had employed a number of contractors to work on the home, and at the time she approached the Irons was dissatisfied with the progress made by the current contractor. Following discussions with Ms. Stern, Gerry Irons, who was no longer employed by or working under a licensed contractor (Mongoya), approached a friend of his, Terry Klob, a licensed contractor. While not privy to the entire conversation, it was Respondent's impression that Mr. Klob agreed to be the contractor on the job and Gerry Irons (Irons Contracting) would do the actual work.1 Subsequently, Gerry Irons met with Ms. Stern to inspect the property and negotiate the scope of work to be performed, and then prepared a proposal for the repair of Ms. Stern's home at 10452 Southwest 114th Street, Miami, Florida. The proposal named Irons Contracting as the contractor, and the proposed contract price was $118,093.75. On December 29, 1993, Gerry Irons and the Respondent met with Ms. Stern, and she acknowledged her acceptance of the proposal by affixing her signature to the agreement. Signing on behalf of Irons Contracting were Gerry Irons and the Respondent. Notably, it was not customary for the Respondent to sign documents on behalf of Irons Contracting; however, in this instance, Gerry Irons prepared the contract to include Respondent as a signatory to assure Ms. Stern, who had apparently developed a sympathetic concern for Respondent's loss, that he would be employed to work on her house. At no time was Ms. Stern led to believe, nor did she ever believe, that Respondent was a licensed contractor. Rather, it was always her understanding that Gerry Irons was the licensed contractor. Not only was it not customary for Respondent to sign on behalf of Irons Contracting, it had never occurred before and never occurred again. Notably, Irons Contracting was Gerry Irons' business, and he exercised primary control over its operations. Gerry Irons operated the business from his home; owned all the tools and other equipment used in the business; conducted all negotiations with Irons Contracting customers or potential customers; signed contracts, proposals, correspondent, and all other documents on behalf of Irons Contracting; and paid the bills or debts of Iron Contracting, including Respondent's pay, by check.2 Respondent's association with Irons Contracting was strictly as an employee,3 who was paid on an hourly basis for the work he did on Irons Contracting jobs. On an average week, Respondent would usually earn approximately $400. During part of the period following the signing of the contract and April or May 1994 when work ceased,4 Respondent worked as a day laborer on Ms. Stern's house,5 as well as other Irons Contracting projects. During that period, Ms. Stern made payments totaling $35,000. Each payment was by check payable to Irons Contracting, and each check was endorsed by Gerry Irons. Respondent, apart from being compensated for his daily labors, did not share in any of the proceeds Gerry Irons received from Ms. Stern. The costs of investigation and prosecution At hearing, Petitioner offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with an attorney's time, as of April 23, 1998, totaled $663.88. (Petitioner's Exhibit 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order: Finding the Respondent guilty of Counts I and II of the Administrative Complaint; Finding the Respondent not guilty of Counts III through VIII of the Administrative Complaint; Imposing an administrative penalty of $300.00; and Requiring, pursuant to Section 455.227(3), Florida Statutes, that the Respondent pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $663.88. DONE AND ENTERED this 11th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1998.
The Issue Whether Respondent engaged in negligence in the practice of engineering based on the structural engineering contained on a set of permit drawings, in violation of Section 471.033(1)(g), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of engineering pursuant to Section 20.165, Chapter 455 and Chapter 471, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed engineer in the State of Florida, having been issued license number PE 51230. In December 1998, Respondent was the engineer of record in the construction of a project hereinafter referred to as the Berlitz Language Center in Orange County, Florida. On or about December 9, 1998, Respondent signed and sealed a set of permit drawings for the Berlitz Language Center. Respondent then submitted the drawings to the Orange County Building Department for permitting. Rami Chami, a structural plans examiner with the County, reviewed the first submittal. Chami has a background in structural engineering. He is also a state-certified plans examiner, a state-certified building inspector and a masonry specialist. The proposed Berlitz Language Center is a two-story building constructed of insulated panels called AFM R-Control Structural Building Panels. The panels consist of a layer of foam-type material between two layers of plywood. The panels were used to provide a structural system that included the exterior walls, the exterior partitions, an elevated second floor, and a roof system. Along with the plans Respondent submitted a compliance report that outlined use limitations placed on the panels. The manufacturer of the panels had run extensive load tests on the panels and as a result of these tests had recommended loads and spans. Chami became concerned that the panels had not been tested for the loading conditions placed upon them by Respondent's design. He contacted the panel manufacturer and sent them a copy of the Respondent's plans. By facsimile dated January 11, 1999, the AFM Corporation recommended against using the panels as shown on the drawings because the panels had not been tested using that method of construction. The Orange County Building Department then hired an independent structural engineer, Ted Holz, P.E., to review the drawings and to provide comments to the Department. Ted Holz, P.E., is a licensed structural engineer. He also holds a building contractor's license and is a structural masonry inspector. In the opinion of Mr. Holz, Respondent had not performed an appropriate wind analysis. He found the plans rife with questions, irregularities, and conflicts. He also confirmed that the panels were being used in ways that would exceed the manufacturer's published data. In his opinion, the structure failed to comply with the local building code in regard to wind loads and live loads. Upon receipt of Holz' report, Chami again contacted the AFM Corporation and provided them with sketches of the proposed structure. By facsimile dated February 2, 1999, the AFM Corporation again recommended against the method of construction used by Respondent. Chami rejected the plans because Respondent's intended use of the panels in the Berlitz project was not acceptable. James O. Power, P.E., is a structural engineer who has been licensed in the State of Florida since 1947. He has over 47 years of structural engineering experience. Since 1980, he has been a consultant to the Department of Business and Professional Regulation in various professions including engineering, architecture, and contractors. Mr. Power was accepted as an expert in structural engineering. The manufacturer of the panels has performed extensive load tests on the panels and as a result of these tests has recommended load and spans. However, the conditions of use must match the test conditions. The most significant limitation on the test report is that the panels must be installed in conformance with the manufacturer's recommendations. In a number of cases, as shown on the drawings, the span and the load exceed those in the manufacturer's drawings as well as those in the Southern Building Code Congress International (SBCCI) test report. There are two additional restrictive requirements. The first states that panels should not exceed ten feet in height. The majority of the panels on the Respondent's drawings are 12 feet high. A second restriction requires a specially engineered header support beam to be provided for all openings exceeding four feet in width. There was no detail of any header or support for the 6-foot, 8-inch opening in the front door on Respondent's drawings. Respondent's use of the panels was contrary to the manufacturer's recommendations and did not comport with the limitations set forth in SBCCI Report No. 9251. Respondent's drawings are deficient in that they are incomplete, ambiguous, and inconsistent. On sheet EB01, the space under the Rear Stairway is shown to be enclosed. This is contrary to what is shown on sheets EB03 and EB23. Sheet EB02 shows what appears to be a vertical support located below the interface of the Left Stair with the upper landing. This is contrary to what is shown on EB23. The Floor Panel layout on sheet EB22 fails to provide for the opening in the second floor necessitated by the Rear Stairway. The Roof Panel layout on sheet EB22 fails to address the extension of the roof over the left stairway as shown on EB11. The detail of the floor spline found at EB11 calls for an AFM Wood I-Beam but this is not permitted by Table No. 3A of the SBCCI Report No. 9251 for a 5 1/2-inch core. Furthermore, this detail is in conflict with the note on EB27 which refers to Design Chart No. 3. Design Chart No. 3 deals with dimensional lumber beam splines rather than I-beam splines. Wall Panel No. 3, found on sheet EB18, is inconsistent with what is found on EB03. No support is indicated for Wall Unit No. 13 or for the left stairway. No details were provided regarding the construction of the rear stairway or the members supporting it. The exterior wall of the left stairway extends upward from 12 feet, 8 inches to 24 feet without transverse support at the end joints and without any support to resist wind loads except for what might be provided by the unspecified stair construction. The location of supporting walls found on EB03 is such that the span of the second floor panels, a maximum of approximately 27 feet, greatly exceeds the 12 feet permitted by Design Chart No. 3 in SBCCI Report No. 9251. The location of supporting walls found on EB07 is such that the span of the roof panels, a maximum of approximately 52 feet greatly exceeds the 20 feet permitted by Design Chart No. 3 in SBCCI Report No. 9251. On sheet EB07, connections between roof and floor panels, which are necessary to provide transverse resistance to wind loads, have not been specified for the front and rear walls. On sheets EB18, EB19, EB20, and EB21, wall openings and panel widths have not been coordinated to avoid the situation of a wall opening extending through a vertical joint into the adjoining panel. Sheets EB18, EB19, EB20 and EB21 fail to specify details of headers and supporting posts. Wall panels No. 2, No. 3, and No. 4 lack transverse support at panel ends and do not match the test load conditions on which Load Design Chart No. 2 in the SBCCI Report No. 9251 is based. Wall Panel No. 5 encroaches on the opening in the second floor necessitated by the rear stairway. At the left side of the rear wall, there is a 4-foot vertical gap between the gap between the top of Wall Panel No. 6, shown on EB19, and the bottom of Wall Panel No. 19, shown on EB21. No support is indicated for Wall Unit No. 30 in Wall Panel No. 9. No support is indicated for Wall Unit No. 31 in Wall Unit No. 13. The designation of Wall Unit No. 31 in Wall Panel No. 30 is the same as hat in Wall Panel No. 13 but the dimensions are different. No support has been indicated for Wall Unit No. 31 in Wall Panel No. 30. Engineering plans must contain sufficient detail so that a competent contractor could reasonably expect to produce a safe building. Respondent's plans do not contain this detail. An engineer must comply with the manufacturer's recommendations unless he can justify the deviations. Respondent has not complied with the manufacturer's recommendations and has not justified his deviation. Respondent's structural engineering experience is limited to his use of structural insulated panels. Respondent's explanation for the deficiencies in his plans and drawings is not credible. Respondent's engineering practice in regard to the Berlitz Language Center does not meet the standard of due care required for professional engineers. Respondent was negligent in the practice of engineering.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order finding the Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, engaging in negligence in the practice of engineering. Pursuant to the Board's disciplinary guidelines found at Rule 61G15-19.004, Florida Administrative Code, it is recommended that Respondent receive a written reprimand, pay an administrative fine of $4,000.00, and be placed on probation for a period of two years with such conditions that the Board deems appropriate. DONE AND ENTERED this 8th day of February, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 February, 2000. COPIES FURNISHED: Natalie A. Lowe, Esquire Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0750 William J. Payne, P.E. 7702 Indian Ridge Trail, North Kissimmee, Florida 34747 Dennis Barton, Executive Director Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301-0750 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto Ernest Brown was licensed by the Pinellas County Construction Licensing Board as a Masonry Flat Work Specialty Contractor and held License No. C-5015. On July 20, 1990, Respondent entered into a contract with Kali Gillespie (Exhibit 1) to build a two story garage addition to her home at 7901 Garden Drive North, St. Petersburg, Florida. The work was commenced in a timely manner and proceeded to completion until the stucco was applied which was supposed to match the color of Gillespie's house. As a Masonry Flat Work Specialty Contractor, Respondent is authorized only to contract for flat masonry construction such as driveways, slabs, etc. The work of pouring footings, laying blocks, framing and pouring lentils is work authorized to be performed by a Masonry Specialty Contractor. Respondent is not licensed as a general contractor who would be authorized to subcontract work for which the general contractor may not be qualified or licensed to perform. Other than the pouring of the slab for the garage floor and stuccoing the outside of the garage, all of the work for which Respondent contracted was beyond that authorized to be performed by a Masonry Flat Work Specialty Contractor. Only an occupational license is required to apply stucco. Respondent testified that he subcontracted with a licensed Masonry Specialty Contractor for the work that Respondent was not licensed to perform and that everything went well until the stucco was applied. Respondent further testified that he told Mrs. Gillespie that he would attempt to match the stucco with the color of her house, but could not guarantee a good match. In May or June 1990, Respondent contracted with James J. Da Silva to replace the driveway at Da Silva's residence. The work was completed in June 1990. Subsequent to the completion of the work, Da Silva was notified by the City of St. Petersburg Permitting Department that a permit was required for the driveway because part of this work was performed on the City's right of way. To obtain the after the fact permit, Da Silva was required to pay twice the normal fee of $130. Respondent gave no reason at hearing for his failure to obtain the permit. Both of these customers of Respondent suffered monetary damage due to Respondent's actions.
Recommendation It is Recommended that a Final Order be entered finding Ernest Brown guilty of the allegations made in the Administrative Complaint and issuing him a written reprimand and an administrative fine of $500. RECOMMENDED this 17th day of January, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. COPIES FURNISHED: Sarah Richardson, Esquire Assistant County Attorney 315 Court Street Clearwater, FL 34616 Ernest Brown 4727 9th Avenue South St. Petersburg, FL 33711
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is a certified general contractor, having been issued license number CG C012236. Respondent qualifies Ber-Pat Industries, Inc. On January 23, 1980, the Respondent, doing business through Ber-Pat Industries, Inc., contracted with Mrs. Benjamin Davis to construct an addition to the residence owned by Mr. and Mrs. Davis at 614 South Swinton Avenue, Delray Beach, Florida 33444. The contract between Mr. and Mrs. Davis and Ber-Pat Industries, Inc., was not for a fixed amount, but rather was a "cost-plus" contract. However, Respondent orally estimated to Mrs. Davis that the cost would he $21,500.00. Respondent commenced construction and received six draw payments totaling $29,184.78. Respondent's method of obtaining the draw payments was to invoice Mr. and Mrs. Davis, which he did on each of the six draws. The last invoice included $1,307.00 for the plumbing work which had been done by Priest Plumbing Company. Respondent did not pay the plumbing bill with the $1,307.00 given to him for this purpose. Rather, he used these funds to pay for ceramic tile which Mrs. Davis ordered on the date she paid Respondent for the plumbing work. Respondent did not inform the Davises of this diversion. Respondent thereafter sought a further draw for the ceramic tile costs. However, the project was then about 75 percent complete and costs were already $7,684.78 above the total project cost estimate. In view of this, the Davises believed Respondent had violated their agreement, and refused to make further payments. Because of their refusal to pay his costs, Respondent discontinued construction in late July, 1980.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 August, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Mr. Bernard Hanus 3225 Lakeview Boulevard Delray Beach, Florida 33445 James Linnan, Executive Director Construction Industry Licensing Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact David Howard was initially paid on a piece work basis, $6.50 per hour. David Howard worked a total of 240 hours. Subsequently, David Howard asserted a claim for wages as a carpenter at approximately $8.54 per hour. Having been advised of the claim, REB, Inc. paid David Howard a corrected wage of $7.34 per hour as a lather, and issued a check to David Howard for the difference between $6.50 per hour and $7.34 per hour. This difference was paid in a lump sum. David Howard installed drywall at all times on the project to construct a municipal building in Tampa, Florida. Persons who install drywall are classed as both lathers and carpenters. A great deal of controversy exists concerning with which trade, carpentry or plastering, it should be associated. REB, Inc. is a subcontractor specializing in the installation of various wall units. The company did not hire any employees as carpenters but only as labors and lathers.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the claim of David Howard be denied. Further, the Hearing Officer recommends that the Department of Commerce have prepared some form of pamphlet which outlines to claimants what they must prove if their case goes to a full hearing, and suggests to the claimant ways in which they can prove these essential allegations thereby permitting the Hearing Officer to make a determination of the case upon its merits. DONE AND ORDERED this 13th day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. David Howard 8422 North Hamner Tampa, Florida 33604 Luther J. Moore, Esquire Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Edwin D. Peck, Esquire 3637 4th Street, North Room 220 St. Petersburg, Florida 33704
