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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
Findings Of Fact Michael J. Kruger was employed from September 30, 1976 until January 21, 1977 by Structural Stud Products at an hourly wage rate of $6.15 per hour. According to his testimony he was engaged primarily in welding on this job. He was involved in installing steel wall stud units made from 12 to 16 gauge steel in the Fine Arts Building of Hillsborough Community College. Although his primary function was as a welder, he did assist in loading and moving these wall units from the point where they were unloaded on the job site to where they were put in place. Structural Stud Products is a company primarily engaged in the fabrication of steel wall units. They had entered a contract with the general contractor to provide such units for installation in the Fine Arts Building. Shortly after interior construction began, the dry wall subcontractor who was installing these units abandoned this project. Structural Stud Products took over this contract and not only supplied the materials but installed these units. Michael Kruger was hired by the job supervisor and plant manager to assist in the installation of these units. He was hired as and was paid wages as a laborer. According to the Schedule of Prevailing Wage Rates applicable to the construction of the Fine Arts Building at Hillsborough Community College, welders were to receive the prescribed rate for the craft performing the operation to which the welding was incidental. See Schedule of Prevailing Wage Rates. No evidence was received that the installation of steel wall units requires any specific expertise peculiar to any building trade. Testimony was received that such units are installed by carpenters, dry wall installers, and laborers.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the complaint be dismissed. DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Harrison Thompson, Esquire Post Office Box 3324 Tampa, Florida 33601 Mr. Michael J. Kruger 160 East Floribraska Avenue Tampa, Florida 33603 Mr. Luther J. Moore Department of Commerce Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
Findings Of Fact At all pertinent times, respondent John G. Wood was a registered real estate broker and a registered general contractor; and respondent Bruno Pais was one of approximately 15 registered real estate salesmen employed by respondent Wood, trading as Wood Realty. At the time of the hearing, approximately 125 people were employed in respondent Wood's construction business, which had built some 3,000 houses. John Wood and Associates, respondent Wood's construction firm, built a house at 903 Wakulla Drive in Winter Haven, Florida, on what had previously been a citrus grove. The house sits on a corner lot and adjoins a heavily travelled state road. In 1975, after the house had been built, respondent Wood learned that the ground underneath the patio near a glass door at the rear of the house had settled. He directed a construction superintendent to reinforce the footing underneath the house and to replace the patio. This repair proved ineffectual, however. In the summer of 1976, respondent Wood engaged Ivan Dewitt King, Jr., a civil engineer and land surveyor with some 30 years' experience, to evaluate the house at 903 Wakulla Drive and to advise what should be done to repair the house. Mr. King examined the foundation and dug several test holes. He found that the foundation had deflected downward one-quarter to one-half inch and that the soil was softer where the deflection had occurred than elsewhere. Although the foundation had bowed, it had not cracked. There was no sinkhole in the area. The softness of the soil might have been the result of a tree's having been uprooted. Mr. King recommended excavating under the existing foundation, pouring concrete to make a new, broader footing underneath the then-existing footing and, after the new footing had cured, placing jacks on it to jack up the original footing and hold it there until the space between the old and new footings was filled with concrete. Mr. King suggested a "twenty- four inch footer to go underneath the existing one, (T.56) and advised respondent Wood that taking these steps would solve the problem. In August of 1976, at respondent Wood's instance, Jeffrey N. Riner, who had been in the foundation and concrete business for some ten years, went in and dug out. . below the foundation and put like a three or four foot wide by about fifteen foot long solid concrete pad with steel across both ways coming up and out of it, and then. . took jacks, like twenty- ton jacks, and jacked the foundation and. jacked. . the slab back. . as close as possible to its original. . place, and then poured the concrete back underneath in between this foundation and the original foundation. (T. 65). Mr. Riner testified that, in his opinion, "that part of the house will never go anywhere." (T.65) After this second repair, respondent Wood observed the house and observed "no structural problems" (T.42) "other than minor cracks in the masonry and expansion cracks." (T.41) Originally, respondent Wood had sold this house to Fred Crabill. Shortly before the second repair, respondent Wood took the house back as partial payment for another house he sold Fred Crabill. Some six months after the repair, on February 17, 1977, James D. and Erma C. Anderson signed an agreement to purchase the house. Driving by, Mr. Anderson had noticed the house and had thought about buying it, but decided to do so only after respondent Pais showed him the house. Respondent Pais was aware of the condition of the soil, that the foundation had deflected, and that repairs had been done. He had been given to understand that there was no longer any structural problem with the house. Mr. Anderson asked respondent Pais if there were anything wrong with the house, and respondent Pais assured him that there was nothing wrong. When he first inspected the house, Mr. Anderson observed that the house was dirty, but noticed no other problems. After the Andersons moved in, they found that the bath tub did not drain properly. The drainage problem was not caused by settling of the house or deflection of the foundation, and was known to neither respondent until after the Andersons vacated the premises. After Mr. Anderson removed some sliding glass doors for cleaning, be had difficulty opening and closing the doors. The Andersons began noticing hairline cracks in a rear wall, two or three of which grew over time to be about one-quarter inch wide at their widest points. These cracks reflected minor setting of the soil underneath the house, attributable to vibration caused by nearby traffic. (T.43) The Andersons never made a down payment on the house. Under their agreement with respondents, the sale was to be closed on or before April 3, 1977, with the Andersons making mortgage payments until the closing. The closing was postponed while the Andersons tried to sell other real property so as to be able to apply the proceeds to the house on Wakulla Drive. In September of 1977, respondents threatened to evict the Andersons unless they closed the transaction. On September 11, 1977, the Andersons, who had learned by then of the repairs previously done to the house, and who were worried about the cracks they had seen, moved out. Thereafter, a complaint was filed with petitioner. In November of 1977, respondents caused some re- grouting to be done to repair cracks in the mortar first observed by the Andersons on a rear wall of the house. Subsequently, Lane A. Bohannon took the house in trade for other property. He knew that the foundation had been repaired at the time. Mr. Bohannon, who rents the house, was unaware of any problems with the house's settling or with the operation of the sliding glass doors during the approximately eight months that he had owned the house.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint as against John G. Wood. That petitioner suspend Bruno Pais' registration as a real estate salesman for thirty (30) days. DONE and ENTERED this 26th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen Baker, Esquire and John Wood, Jr., Esquire Suite 2, 200 Avenue K, Southeast Winter Haven, Florida 33880
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, School Board of Brevard County, Florida, is empowered to designated the personnel positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees for the school district. The Respondent, Arthur Douglas Barna, has been employed by the Petitioner since the early 1970s. The Respondent has a degree in mechanical engineering, is a registered professional engineer, and has twenty years of experience in the construction field. Respondent's first position with the Petitioner was as construction manager. In 1976, Respondent's title was amended to staff engineer and construction manager. In 1981, Respondent was made Director of Facilities a position he held until February, 1991, when he was returned to the staff engineer position and John Allen was retained to be Director of Facilities. On April 23, 1991, Respondent was recommended for appointment to the position of staff engineer for the 1991-92 contract term by the school superintendent. The qualifications for appointment as staff engineer/project manager are: Graduation from a college or university with a degree in engineering. Registered as an engineer in the State of Florida. Experience (five years minimum) in educational design and facility planning administration. Experience in administration of educational construction contracts. Knowledge of Uniform Building Code and Florida School Laws and Regulations. On April 23, 1991, by a 3-2 vote, the Petitioner rejected the superintendent's recommendation to employ Respondent. Prior to April 23, 1991, Respondent had received satisfactory personnel evaluations. Prior to April 23, 1991, Respondent had not been reprimanded or disciplined for any act or omission regarding the performance of his duties. In the two years prior to April 23, 1991, Respondent had participated in numerous construction and remodeling projects for the Petitioner. Such projects exceeded $46,000,000.00 in cost to the public. One of projects Respondent was involved with during his tenure with the Board was Stone Middle School (Stone). That project originated with a bid proceeding to choose a contractor to perform the construction work. One of Respondent's duties was to represent the Board at bid openings. In the case of the Stone project, within a short time after the bid opening, the apparent low bidder on the job, Speegle Construction (Speegle), advised Respondent that an error had been made on the bid form. That error was claimed to be in the amount of $40,000.00. Speegle's bid was $90,000.00 lower than the next low bidder. Speegle had tendered a bid bond in the amount of $50,000.00. After reviewing the matter with the bidder, Respondent took the matter to his supervisor who then took the issue to the school superintendent and board staff. Among the staff who considered the issue was the school board attorney. Regardless of any dispute regarding the computation of the $40,000.00 error (such are deemed irrelevant to the essential issue), the Board was presented its options: to take the bid bond and award the contract to the next lowest bidder; to give Speegle the additional $40,000.00 and award it the contract; or, presumably, rebid the project. Since awarding Speegle the contract, with the $40,000.00 addition, still saved the public $50,000.00, over the next lowest bidder, Respondent recommended that option. His recommendation was supported by his superiors. After public discussion of the matter, the Board unanimously voted to select Speegle as recommended by staff. No evidence supports the assumption that the Board's decision, based in part on Respondent's recommendation, was found to be illegal, unethical or challenged by the other bidders on the project. The Stone project had additional problems since the architectural firm hired to complete the drawings did not meet the guidelines established by the Department of Education. On at least two occasions the plans had to be returned to comply with state standards. Consequently, the project was late commencing. Such lateness was not due to the fault or error of the Respondent. To the extent he was involved, Respondent properly supervised the Stone construction project and did not approve inferior work. All specifications of the contract were met and verified by Respondent and then assistant superintendent for facilities, Leon Cowling. Issues regarding performance of the Stone project arose between Respondent and Cliff Gordon, president of the architectural firm involved with the job. Such issues related to the lockers and an athletic field which Mr. Gordon claimed did not meet specifications. Such allegations are not supported by the record in this case. When the Stone project was not completed on time, Respondent assessed liquidated damages against Speegle in accordance with the contract terms. Respondent was not responsible for the lateness, and Speegle, in fact, made good on the damages. Respondent and Mr. Gordon did not agree on aspects of the Stone project. Mr. Gordon became disgruntled when Respondent would not approve payment to Mr. Gordon's firm for work allegedly done. Mr. Gordon attended Board meetings regardless of his claim that Respondent had advised him to stay away. Respondent was not responsible for the removal or encapsulation of asbestos found in several schools. Respondent's position placed him in a position over construction, not maintenance. Moreover, another school administrator was assigned to be responsible for overseeing issues related to asbestos at all times material to this case. Respondent did not supervise a project wherein the treatment of asbestos was at issue. Anderson Elementary School (Anderson) has a noise problem in that sound travels from one area to another. The ceiling tile used in the Anderson project was the same product used in the other schools and was the contractor's choice. At the time of installment an issue arose as to whether the tile to be used met the specifications of the contract. Ultimately, the architect signed off on the use of the tile requested by the contractor. Unfortunately, the tile used does not buffer noise. Whether the tile originally requested would more effectively buffer the noise is unknown. Whether the design of the facility contributes to the noise problems is also unknown. That there is a noise problem at Anderson is not due to an act, omission, or the negligence of the Respondent. In connection with the air conditioning system installed at Southwest Junior High School (Southwest) a problem arose as to that system's design. Respondent did not design the system. In fact, a design firm was retained to complete the work and the system was installed based upon that work. The Board does not have the personnel or the staff expertise to verify whether outside consultants perform their jobs correctly. Presumably, the Board utilizes such consultants because it does not have the internal resources to do the work requested. In the case of Southwest, the firm hired designed the system improperly. As a result, the Board made a claim, and collected, against the firm's errors and omissions insurance. Thus, the Board received damages for the design defect. Cambridge Elementary School (Cambridge) is located adjacent to a housing subdivision developed by Centex Homes. Due to drainage problems associated with the development, the homeowners' association and the developer requested that the Board execute a drainage easement on the Cambridge property so that the properties might be enhanced. The homeowners' proposal made to the Board gave the expense of preparing and maintaining the easement to the association. Respondent was approached regarding the drainage easement and considered the matter to benefit the school site. Respondent and Mr. Cowling recommended granting the easement. Such easement was to be preceeded by an agreement setting forth the homeowners' obligations to the Board. For reasons not addressed by this record, an agreement was not prepared and returned to the Board as had been directed. In fact, the Board chairman and superintendent executed the drainage easement without evidence of an agreement. Nothing in this record suggests Respondent had anything to do with the execution of the easement or the failure to obtain a written agreement regarding it. Moreover, these events occurred in May and November, 1988, some three years prior to the nonappointment of Respondent. The construction of the educational services facilities at Viera posed many novel and complicated construction issues for the Board and its staff. For one thing, the Board had not utilized a "design/build" format in construction before. Based upon the record in this case, it is unlikely that the format will be used again. The design/build format requires the construction of some phases of a project while the design is still occurring. As a result, unlike situations where a contractor has a determined set of plans to follow, the builder in the design/build format is in a constant state of flux and change. As may be expected, the owner is tied to the same constant amendment to plans. In the case of Viera, Respondent served as the owner's representative on the project. By contract, all notices and changes went through Respondent who was then responsible for coordinating with the Board staff. At all times material to the Viera project, Respondent kept his supervisor aware of the progress of the project and of the changes to plans or specifications. It was not Respondent's responsibility to report directly to the Board regarding the Viera project (or any other for that matter). Respondent routinely made reports to his supervisor who then coordinated matters with finance and the superintendent. Respondent was available to the Board for any matters that might require his input. Early on in the Viera project Respondent advised his supervisor and the Board that they had little control over how the building was constructed. As long as the project stayed within the general design concept, the specifications were fairly open. Respondent's first priority was to try to keep the Viera project on budget as to the changes that occurred. To that end, items such as the carpet allotment were reduced to capture more funding for other requested items. In each such case Respondent made his superior aware of the changes. Ultimately, the changes requested by Respondent, the superintendent, or John Forbes were placed before the Board as change order #1 and approved. While some of the changes had already occurred, there is no evidence that the Board took action to prohibit Respondent and the administration from making the day-to-day decisions on the project. In fact, the contractor make changes on the Viera project without authorization from any Board administrator. Presumably, necessity caused the Board to accept such work. There is no evidence that the changes authorized by Respondent on the Viera project were arbitrary or in violation of the contract. Respondent did not fail to abide by the contract terms. Respondent did not act improperly regarding the Viera project and is not responsible for the quality of the workmanship of the job. As energy costs became a concern to the Board, the Respondent participated in a conservation effort whereby energy firms were solicited for proposals as to how the Board might save on energy expenses. Initially five contractors showed interest in the project but only three filed proposals with the facilities department. To evaluate the proposals, which was deemed a "win/win" deal by the Board, an outside consultant was hired to review each of the submittals. The proposals, along with input from the consultant, was then heard and considered by a committee of eleven school board employees. The Respondent was not a voting member of the group. After receipt of the proposal and the foregoing review, the committee and Respondent recommended to the Board that Facility Masters Incorporated (FMI) be selected for the contract. The Board also reviewed the proposals and recommendations and approved the recommendation to hire FMI. The contract between FMI and the Board was reviewed by the school board attorney. The scope and terms of the project were outlined to the Board and the administrative staff. The concept of the proposal was to replace, at no initial cost to the Board, the outdated and inefficient equipment with new, efficient units so that the energy savings would actually pay for the equipment. None of the persons who reviewed the FMI project was aware that the proposal might require a performance bond. Respondent and others aware of the project were familiar with bonds and the necessity to have same on certain types of projects. In this instance, the superintendent, the assistant superintendent for facilities, the school board attorney, and Respondent did not request a bond for this job. No Board member questioned whether a bond should be requested for the project. All of the foregoing operated under the assumption that the replacement of equipment and the construction incidental to that did not require a bond. The principals employed at FMI had a satisfactory work history on similar projects. Their qualifications were investigated by Mr. Cowling, the assistant superintendent. No prior poor work performance was discovered. Under the terms of the FMI contract, the Board was to receive and approve a list of subcontractors before FMI was to "commence the installation of the System." There was no requirement that FMI submit a list for subcontractors of subcontractors. After commencement of the installation of the system, the Board and several of its individual members were sued for amounts allegedly owed Miller Electric, a subcontractor of a subcontractor on the FMI project. That suit brought to light the issue of the performance bond, or lack thereof, and the discovery that an individual, identified in the record as Armondo Diaz, had somehow obtained the balance of $167,000 from the Shawmut Bank. Such monies represented the final draws due on the FMI project. Respondent, however, did not authorize the final draw from the bank nor is there any evidence that he supported Mr. Diaz in that matter. Subsequently, the Board sued the bank over the release of the funds and settled the suit with Miller. Whether the $167,000 (quickly released) would have settled Miller Electric's claim is unknown. Certainly, it would have greatly reduced it. At the time of Respondent's departure from employment, the FMI system was operating in seven of the twelve schools in an acceptable manner. The other five schools were operational but not to the efficiency level anticipated. The Respondent acted reasonably in the selection and award of the contract to FMI, the administration of the project, and is not responsible for the improper release of the final draw. Three Board members testified that they have lost confidence in Respondent's ability to perform the duties of staff engineer/project manager. None of the three had registered complaints regarding his work performance with Respondent or his supervisor, Mr. Cowling, prior to the Board meeting April 23, 1991. None of the three Board members was able to articulate the factual basis for her lost confidence when asked to do so in December, 1991. The Respondent meets all of the qualifications for employment as staff engineer/project manager as that job title is described by the Board. The Respondent acted appropriately and within the scope and description of his job duties on each of the following projects: Stone Middle School; asbestos; Anderson Elementary School; Southwest Junior High School; Cambridge Elementary School; Viera; and FMI.
Recommendation Based on the foregoing, it is RECOMMENDED: That a final order be entered appointing Respondent to the position of staff engineer/project manager with all back pay and benefits withheld him from the date of his termination. DONE and ENTERED this 31st day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1992. APPENDIX TO CASE NO. 91-5645 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER, THE SCHOOL BOARD: It should be noted that Petitioner did not number the paragraphs in its proposed findings of fact. The numbers indicated below were assigned as follows: paragraphs 1 through 20 related to Respondent's general job description and responsibilities; paragraphs 21 through 31 are under the heading related to Viera; paragraphs 32 through 53 are under FMI; paragraphs 54 through 66 are under the Stone Middle School heading; paragraphs 67 and 68 are under Southwest Jr. High School; paragraphs 69 through 73 are under the asbestos heading; and 74 through 79 are under Cambridge Elementary School heading. No proposed findings of fact were submitted for the allegations related to Anderson Elementary School. Paragraphs 1 through 16 are accepted but do not necessarily reflect accurate quotes of the cited material as there are minor, insignificant irregularities. Paragraph 17 is rejected as contrary to the weight of the evidence. While it is accepted that three board members testified they had lost confidence in Mr. Barna, it is not concluded that they had objective reasons for that opinion prior to the vote on the Superintendent's recommendation. Paragraph 18 is accepted. With regard to paragraph 19, it is accepted that the job description had been held by Mr. Barna prior to the Board decision and would have been afterwards had they accepted the Superintendent's recommendation. Paragraphs 20 and 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraph 23 is accepted. Paragraph 24 is rejected as contrary to the weight of the credible evidence. Paragraph 25 is accepted. With regard to paragraph 26, it is accepted that some, but not all, of the changes addressed by change order 1 were completed prior to the submission of the item to the Board. Paragraph 27 is rejected as contrary to the weight of the evidence, and contrary to the facts established at hearing. Mr. Barna did not authorize changes without making his superiors aware of the items to be considered. The contract speaks for itself as to his authority. Paragraph 28 is rejected as contrary to the weight of the evidence; see also comment re: paragraph 27 above. With regard to paragraph 29, it is accepted that change order 1 represented an increased cost to the project; otherwise rejected as not supported by the record cited. Paragraph 30 is accepted but is irrelevant since evidence established that Mr. Barna did not approve some of the changes to the project and that they were done without any authorization. Paragraph 31 is accepted but is irrelevant; Mr. Barna did not stand as the guarantor on the work performed by others. Paragraph 32 is accepted. Paragraph 33 is rejected as contrary to the weight of the evidence. Paragraphs 34 and 35 are accepted. Paragraph 36 is rejected as not supported by the record cited; weight of the evidence supports the fact that Miller Electric was a subcontractor for a subcontractor and that the contract did not require the disclosure of subs of subs. Paragraph 37 is rejected as contrary to weight of the evidence; see comment paragraph 36 above. Paragraph 38 is accepted but is irrelevant. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is rejected as contrary to the weight of the evidence. Paragraph 41 is rejected as irrelevant. Paragraph 42 is rejected as contrary to the weight of the credible evidence. Paragraph 43 is rejected as not supported by the evidence; to the extent that the paragraph suggests Mr. Barna was generally familiar with bond requirements and that he compiled "boiler plate" forms it can be accepted, otherwise must be rejected since no evidence that Mr. Barna prepared or drafted documents. The bond form on its face shows it is an AIA document A310 form. Paragraph 44 is rejected as argument. Paragraph 45 is rejected as a conclusion of law. The facts of this case establish that no one associated with the School Board side of the project realized it was, or should have been, a bond job until the lawsuit was filed. Had anyone suspected a bond should be required, it would have been requested. Mr. Barna was not at fault for not requesting a bond anymore than Mr. Walker was, or Mr. Cowling, or Mr. Collingsworth, or the individual Board members who know when bonds are required. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is rejected as contrary to the weight of the evidence as it suggests Mr. Barna knew a bond was required (as it was a construction job); clearly, neither he nor anyone else realized a bond would, or should, be required. Paragraph 48 is rejected as irrelevant. Paragraph 49 is rejected as contrary to the weight of the evidence. Paragraph 50 is rejected as irrelevant. Paragraph 51 is accepted. Paragraph 52 is contrary to the weight of the evidence. Paragraph 53 is contrary to the weight of the evidence. Paragraphs 54 through 57 are accepted. Paragraph 58 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence. Paragraph 59 is rejected as a conclusion of law not supported by the record and contrary to the weight of the evidence. Paragraph 60 is accepted but is irrelevant. Paragraphs 61 through 66 are rejected as contrary to the weight of the evidence, irrelevant, or assuming facts or conclusions of law not evidence. Paragraph 67 is accepted. Paragraphs 68 through 73 are rejected as contrary to the weight of the evidence, conclusions based upon facts not in evidence, or irrelevant. Paragraph 74 is accepted. With regard to paragraph 75, it is accepted that Mr. Barna represented that drainage would be improved by the proposed easement drainage; as to the suggestion that Mr. Barna assured "no water" would be drained unto the property, such proposed fact is rejected. Paragraphs 76 and 77 are rejected as contrary to the weight of the evidence. The Board's decision to accept the concept was not solely based upon Mr. Barna's recommendation. Paragraph 78 is accepted. Paragraph 79 is rejected as irrelevant, beyond the scope of this proceeding, and to the extent it suggests Mr. Barna to be at fault, is contrary to the weight of the evidence. Mr. Barna was not responsible for drainage problems at the school. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT, BARNA: 1. Paragraphs 1, 2, 7 through 18, 20, 22, 23, 25 through 38, 41, 43, 46 through 56, 58 through 61, 66 through 71, 77 through 79, 93 through 97, 101, 102 through 105, 109 through 111, 113, 114, 116, 120, 123, 124, 127, 129, 130, 132, 135 through 146, 148, 149, 151 through 157, 159, 160, 162 through 165, 167 through 169, 171, 172, 174, 176, 177, 179, 181, 182, 186, 188, 189, 190, 191 are accepted. Paragraphs 3, 4, and 5 are accepted but are irrelevant. Paragraph 19 is rejected as irrelevant; reiteration of charges, not fact; or argument. With regard to paragraph 21, it is accepted that projects described in statement of cause were extent of Board consideration (if that); otherwise, not supported by record cited. 5. Paragraph 24 is rejected as irrelevant and argument. 6. Paragraph 39 is rejected as repetitive or argument. 7. Paragraph 40 is rejected as argument. 8. Paragraph 42 is rejected as conclusion of law. 9. Paragraph 44 is rejected as restatement of document not fact. 10. Paragraph 45 is rejected as argument or comment. 11. Paragraph 57 is rejected as restatement of document not fact and argument. Paragraph 62 is rejected as hearsay not supported by direct evidence. Paragraph 63 is rejected as restatement of document not fact and argument. Paragraph 64 is rejected as comment, not fact. Paragraph 65 is rejected as hearsay not supported by direct evidence. Paragraphs 72 and 73 are rejected as recitation of testimony. Paragraph 82 is rejected as restatement of document not fact and irrelevant. Paragraph 83 is rejected as irrelevant. Paragraph 84 is accepted but is irrelevant to this case. Paragraphs 85 and 86 are rejected as argument. Paragraph 87 is rejected as restatement of document not fact. Paragraph 88 is rejected as argument. Paragraph 89 is accepted but is irrelevant to this case. Paragraph 90 is rejected as restatement of document not fact. Paragraphs 91 and 92 rejected as argument and recitation of testimony. Paragraph 98 is rejected as irrelevant. Paragraph 99 is accepted but is irrelevant to this case. Paragraph 100 is rejected as restatement of document not fact. Paragraph 106 is accepted but is irrelevant to this case. Paragraphs 107 and 108 are rejected as restatement of document not fact. Paragraph 112 is accepted to the extent that the terms outlined were Mr. Barna's understanding but such terms were not reduced to writing in accordance with the Board's directive. Why the easement was signed prior to an agreement being drafted and approved by the Board is unknown. No evidence suggests Mr. Barna was responsible for the oversight. With regard to paragraph 115, see comment regarding paragraph 112 above. Paragraph 117 is rejected as irrelevant. Paragraph 118 is accepted but is irrelevant to this case. Paragraph 119 is rejected as restatement of document not fact. Paragraph 122 is rejected as argument. Paragraph 128 is rejected as not supported by evidence cited. Paragraph 131 is rejected as hearsay. Paragraph 133 is rejected as hearsay. Paragraph 134 is rejected as restatement of document not fact. Paragraph 147 is accepted but is irrelevant to this case. Paragraph 150 is rejected as restatement of document not fact. With regard to paragraph 155, the phrase "which ultimately recommended" should be added before "FMI" to clarify the statement instead of "recommending." Paragraph 158 is rejected as restatement of document not fact. Paragraph 161 is rejected as restatement of document not fact. With regard to paragraph 166, it should be added that at all material times to the review of the project before the letting of the job, the FMI project was considered as described. Paragraph 170 is accepted with the substitution of the word "acceptably" for "perfectly." It is the view of the trier of fact that no system can be perfect. Paragraph 173 is rejected as contrary to the weight of the evidence. From this record it would appear that Mr. Walker gave no definitive statements regarding the FMI project. Paragraph 175 is rejected as contrary to the weight of the evidence. It is accepted that Mr. Barna and Mr. Walker, together with other persons in authority, discussed the FMI project. Paragraph 178 is rejected as argument. Paragraph 180 is rejected to the extent it concludes funds were obtained by fraud; clearly that is the Board's position as no one authorized the final draw. Paragraph 183 is accepted but is irrelevant to this case. Paragraph 184 and 185 are rejected as argument not fact. Paragraph 187 is rejected as irrelevant and argument. Paragraphs 192 through 196 are rejected as argument, conclusion of law, or not supported by the weight of the evidence. COPIES FURNISHED: Stanley Wolfman David J. Wolfman STANLEY WOLFMAN, P.A. 200 W. Merritt Island Causeway Post Office Box 540513 Merritt Island, Florida 32954-0513 Louis V. Cianfrogna James H. Earp CIANFROGNA, TELFER, REDA & FAHERTY, P.A. Suite 102 1990 West New Haven Avenue Melbourne, Florida 32904 Abe Collingsworth Superintendent of Schools Brevard County School District 2700 St. Johns Street Melbourne, Florida 32940
The Issue Whether an administrative fine should be imposed against the Respondent pursuant to Section 381.112, Florida Statutes, under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, ASI, a corporation, was a manufacturer of fiberglass septic tanks in Sebring, Florida. At all times material to this proceeding, ASI was on the state of Florida list of approved septic tank manufacturers. For a septic tank manufacturer to be put on the state of Florida list of approved septic tank manufacturers, the manufacturer must convince the Department that it will manufacture septic tanks in accordance with the standards and specifications set forth in Rule 10D-6.054 (General Standards for Treatment Receptacles) and Rule 10D-6.055 (Construction Materials for Treatment Receptacles), Florida Administrative Code. A 1050 gallon fiberglass septic tank was installed at 3727 Thunderbird Hill Circle, Sebring, Florida by Dan Young, a licensed septic tank contractor. Final inspection in accordance with Rule 10D-6.043(2), Florida Administrative Code was made by the Department of this septic tank installation, and the installation was approved on May 24, 1984. However, during the Final Inspection the tank was partially covered with only the top of the tank visible which limited the amount of light available for a visual inspection for thin spots by Dixon. Young does not specifically remember this particular fiberglass septic tank as being manufactured by ASI because he did not remember being on the job and present when this particular tank was installed, and he did not check this particular tank to determine the manufacturer. However, it was Young's recollection that all of the fiberglass septic tanks used in Thunderbird Hill Village I, where this particular tank was installed, were purchased and picked up from ASI. Likewise, neither Edward Dixon, who made the final inspection and approved the installation of this tank and who inspected the tank after the complaint was filed, nor James Fisher, who inspected the tank after the complaint was filed, specifically looked for, and do not recollect seeing any information on the tank that identified the manufacturer or the date of manufacture. Neither Young nor Dixon checked the tank in question for thickness even though there was an opportunity to do so, and did not notice any readily visible thin spots in the tank during the installation or final inspection. Young's reason for not checking the thickness of the tank was that it was purchased from an approved manufacturer, and he assumed it was made to specifications. Dixon's reasons for not checking the tank for thickness was that it was not one of the standard checks in the final inspection for approval, and since the tank was partially covered it would have required drilling a plug in the tank which was impractical. On September 12, 1989 a complaint was filed with the Department alleging that the septic tank at 3727 Thunderbird Hill Circle had "caved inwards" and was cracked. The complaint alleged a wall thickness of approximately 0.140-0.160 inch. On or about September 14, 1989, the Department, in response to the complaint, had inspector Dixon visit the site. Dixon drilled and removed a plug approximately one inch in diameter from the tank and carried the plug to Fisher at the Department's office in Sebring, Florida. While at the site, Dixon measured the tank's wall thickness around the drilled plug site with a micrometer. The wall thickness measured between 0.140 and 0.150 inch in this area. Fisher measured the plug at three different locations with a micrometer. The measured thickness of the plug was 0.147, and 0.157 and 0.162. The micrometer used by Fisher had been checked for accuracy, and found to be accurate within 0.0002 inch. There was no evidence that the plug was taken from the area of the tank that had "caved-in", only that Dixon had randomly selected an area on the top of the tank from which he took the plug. Although no one saw any heavy equipment run over this particular tank, there was evidence that other tanks in this area had been run over after installation which required them to be repaired. Also, Fisher testified that upon viewing the tank that it appeared to have been impacted by a heavy weight causing it to be crushed or "bowed-in". There was no evidence to show that the tank had been cracked. There was insufficient evidence to show that the "caving-in" was the result of the tank being below specifications on wall thickness. There was testimony that heat, light and certain caustic material placed in the tank may have some effect on a fiberglass tank, but there was no substantial competent evidence to show how the tank may be effected or if it was affected. ASI was notified of the complaint on October 10, 1989, and requested to correct the alleged deficiency or an administrative would be imposed. The alleged deficiency was not corrected, and an administrative complaint was served on ASI on November 15, 1990. As of the date of the formal hearing, ASI had not corrected the alleged deficiency. This particular fiberglass septic tank is still in service, and no effluent was leaking from this tank and running to the surface of the ground. The tank does not constitute a health hazard. ASI had previously repaired fiberglass septic tanks during installation where it was shown that an isolated area of the septic tank wall was below the thickness specifications. However, the Department had not previously cited ASI for any violation of the thickness specification for walls in septic tanks manufactured by ASI. The Department has inspected the ASI facility on at least an annual basis for compliance with the Sanitary Code of Florida, and has always found ASI to be in substantial compliance with the code, notwithstanding certain derogatory remarks on at least three occasions. Other than a visual inspection for thin spots, the Department does not check for compliance with the wall thickness specifications for fiberglass septic tanks in its annual or other inspections of the manufacturing plant or at the final inspection and approval of an onsite sewage disposal system.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the mitigating factors provided in Section 381.112(2), Florida Statutes, and the Department's responsibility under these circumstances, it is, recommended that the Department enter a Final Order finding ASI guilty of violating Rule 10D-6.055(1)(b), Florida Administrative Code, and assessing an administrative fine in the amount of $200.00 pursuant to Section 381.112(1), Florida Statutes. DONE and ENTERED this 7th day of August, 1991, in Tallahassee, Florida. _ WILLIAM R. CAVE 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 7th day of August, 1991. APPENDIX The following contributes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-2. Adopted in Findings of Fact 1 and 3, respectively, as modified. 3. Adopted in Findings of Fact 3, 5, and 15, as modified. 4.-9. Adopted in Findings of Fact 6, 7, 7, 8, 12, and 12, respectively, as modified. Rejected but see Finding of Fact 10. Adopted in Finding of Fact 11. Not material or relevant but see Finding of Fact 8. Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in Finding of Fact 3, as modified. The second sentence adopted in Findings of Fact 3 and 4, as modified. The balance of paragraph 2 is legal argument and not a Finding of Fact. Not a Finding of Fact but a statement of the contents of a rule or conclusion of law. Covered in Preliminary Statement. 5.-6. Adopted in Finding of Fact 3, as modified. 7.-8. More of a legal argument or conclusion of law than a Finding of Fact. 9.-10. Not material or relevant but see Finding of Fact 5. 11.-13. Adopted in Finding of Fact 5, as modified. 14. Rejected. The Department made a prima facie showing that the tank installed was manufactured by ASI since it was purchased and picked up from ASI by Young. Therefore, the burden shifted to ASI to prove these facts. ASI failed in that regard. 15.-17. Not material or relevant, but see Finding of Fact 10. Adopted in Finding of Fact 10, as modified. Adopted in Findings of Fact 6 and 10, as modified. Adopted in Finding of Fact 13, as modified. Not material or relevant. Paragraph 22 is argument as to the credibility of Fisher's testimony, and not a Finding of Fact. Not material or relevant. 24.-25. Adopted in Finding of Fact 15, as modified. 26.-27. Not material or relevant. 28. Adopted in Finding of Fact 15, as modified. 29.-33. Either legal argument or Conclusion of Law and not Findings of Fact. 34. Adopted in Finding of Fact 14, as modified. 35.-38. Either legal argument or Conclusion of Law and not Findings of Fact. COPIES FURNISHED: Raymond R. Deckert, Esquire Health Program Attorney, District VI 4000 West Dr. Martin Luther King Jr. Blvd. Tampa, FL 33614 James F. McCollum, Esquire 129 South Commerce Avenue Sebring, FL 33870 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, 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 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
