The Issue Whether Petitioner, White Rock Quarries (“White Rock”), is entitled to an award of attorney’s fees to be paid by Respondents, Dorothy Brown-Alfaro and Amilcar Alfaro (“Respondents” or “Ms. Alfaro”), pursuant to section 57.105, Florida Statutes, and an award of attorney’s fees and taxable costs to be paid by Respondents pursuant to section 552.40(9), Florida Statutes; and, if so, the amount of attorney’s fees and taxable costs to which White Rock is entitled.
Findings Of Fact White Rock engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, White Rock utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondents reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Respondents are the third owners of the home, which was built in 1981. Respondents have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. The subject quarries are located within various geographic areas identified by different sections in close proximity to Respondents’ home. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Respondents’ home. Section 6 is approximately 2.3 or 2.4 miles from Respondents’ home. Section 4/5 is approximately 1.6 miles from Respondents’ home.1/ In the underlying case, Respondents asserted that White Rock’s quarrying activities caused damages to their home. Respondents alleged damages centered on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is undisputed that cracks exist throughout Respondents’ home and that Respondents’ home is damaged because of the cracks. However, the issues to be determined in the underlying proceeding were whether the cracks were caused by White Rock’s blasting activities, and, if so, the amount Respondents should be compensated for the damages. Section 552.40(1) provides, in pertinent part, that: A person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction mining materials mining activities by filing a petition with the Division of Administrative Hearings by electronic means through the division’s website on a form provided by it . . . . Pursuant to section 552.40(2)(c) and (d), the petition must include: The approximate time, date, and place of the use of explosives which is alleged to have resulted in damage to the petitioner; and A description of the damage caused and the amount sought for recovery. On December 14, 2015, Respondents’ former counsel filed an Amended Petition Under the Florida Construction Materials Mining Activities Administrative Recovery Act. In the amended petition prepared and filed by Respondents’ former counsel pursuant to sections 552.40(1) and (2), Respondents claimed they were entitled to the following items of damages caused by White Rock’s blasting activities: Floor ($24,000) Foundation ($100,000) Walls ($50,000) Ceiling ($20,000) Patio ($50,000) Driveway ($75,000) Windows ($45,000)2/ The final hearing in the underlying proceeding lasted two days. At that hearing, Respondent Dorothy Brown-Alfaro (who appeared pro se at the final hearing), presented photographs and a home inspection report showing cracks throughout the home. She described new, worsening, and expanding cracks throughout the home resulting from White Rock’s blasting activities. In addition, Ms. Alfaro submitted into evidence a blasting log, which documented the date, time, and intensity of White Rock’s ongoing blasting activities since 1999 Respondents claimed they felt at their home. The blasting log was also an exhibit to Respondents’ amended petition. At the hearing, Ms. Alfaro testified to White Rock’s frequent blasting and the effects on her home from the blasts. According to Ms. Alfaro, when White Rock’s blasting activities occur, the house “sways,” “everything shakes,” and “the entire structure of my house moves.” According to Ms. Alfaro, “when it shakes, my ceiling, my roof, my walls, my floor, everything shakes.” She testified that items fall off the shelves and she described the feeling from the blasts as a “vibration similar to an earthquake.” Ms. Alfaro presented the additional testimony of Barbara Hagan, Paul Ingelmo, and Ismailia Rashid. Mr. Ingelmo is a structural engineer who performed a visual inspection of Respondents’ residence. Ms. Rashid is a general and roofing contractor. Neither Mr. Ingelmo, Ms. Rashid, nor Ms. Hagan could opine that the damages to Respondents’ home were caused by White Rock’s blasting activities. Ms. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Ms. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. The undersigned found Ms. Alfaro’s testimony regarding the purported cause of the cracks not to be credited or persuasive. Ms. Alfaro regularly provides construction estimates in her business. Ms. Alfaro testified that the damages she requested in the amended petition were based upon her estimate of the repair costs she would incur to correct the damages caused by White Rock’s blasting activities. She testified, without objection, that she obtained material costs and calculated the amount of materials needed (i.e. per cubic yard of concrete and drywall) and labor to complete the repairs. In response to the evidence presented by Ms. Alfaro at the hearing, White Rock presented the testimony of Jeffrey A. Straw, a seismologist; David L. Teasdale, a civil structural engineer; and Michael Schraeger, a general contractor and building inspector. As a seismologist, Mr. Straw was responsible for monitoring the impacts and vibration from White Rock’s blasting activities and analyzing their effects on structures. At the hearing, he described the concept of peak particle velocity (“PPV”), the speed at which a particle of ground oscillates as the vibration wave moves through the ground following a blast. Mr. Straw testified that according to seismographs located within the vicinity of Respondents’ home, at no time have any of White Rock’s blasting activities reached or exceeded the PPV limit of 0.5 inch per second established by the state of Florida. Mr. Straw also visited Respondents’ home twice: in April 2006 and January 2016. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Respondents. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Respondents’ home and driveway. Mr. Straw also testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.3/ While at Respondents’ home in January 2016, Mr. Straw experienced the effects of a blast. He described it as “[r]elatively minor based on blasts that I felt,” and indicated the blast lasted about three to five seconds at most. However, Mr. Straw further testified that he could feel the impact of the blast under his feet, and he could hear it, “there was some general vibration of the structure,” and some “dish rattling.” Mr. Teasdale is extensively familiar with seismographs and has extensive experience installing and using them. At the hearing, he was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at Respondents’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale explained the substantial differences between an earthquake and quarry blasting. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. According to Mr. Teasdale, distortion occurs where the foundation of a structure is accelerated laterally and causes the under part of the building to lag in response, which causes the building to shift back and forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale testified there was no damage to the foundation of Respondents’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Respondents’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Based on his review and analysis of Respondents’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Respondents’ home. Mr. Schraeger has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. At the hearing, Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Respondents’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in the home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Respondents’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. He opined there was no evidence of foundation damage. Mr. Schraeger further testified that in his professional opinion, some of the cracks in Respondents’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of the home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Respondents. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At the hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, he opined that all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. According to Mr. Schraeger, the crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods. At the hearing, Mr. Schraeger disputed Ms. Alfaro’s cost of repair testimony. However, Mr. Schraeger was not asked to give an expert opinion regarding the amount of damages, and he provided only “ballpark” or “rough” estimates of the cost of repair. For example, Mr. Schraeger testified that the cost to repair the flooring would be “approximately $11,000.”4/ As to the foundation, he estimated the cost to be $0.00 because he found no damage. As to the walls, Mr. Schraeger estimated a figure of $16,000. As to the ceiling, Mr. Schraeger estimated a figure of $5,000. As to the patio, Mr. Schraeger estimated a figure “well within the high end of six thousand.” As to the driveway, Mr. Schraeger estimated a range between “roughly” $17,000 and $20,000--the high end of the range resulting from “material fluctuation” construction costs. As to the windows, Mr. Schraeger estimated $12,000. Clearly, Mr. Schraeger acknowledged there are actual damages throughout much of the home, and there are actual costs associated with the repair of the damages. That the parties disagreed as to the amount of damages as to each item of alleged damages does not mean that the amount of damages claimed was unsupported by the material facts necessary to establish the claim. In sum, based on the evidence adduced at the hearing, the undersigned found that Respondents failed to prove by a preponderance of the evidence that the damages to their home were caused by White Rock’s blasting activities. Rather, the preponderance of the evidence presented at hearing established that the damages to Respondents’ home were not caused by White Rock’s blasting activities. In reaching this conclusion, the undersigned credited and found persuasive the testimony of Mr. Straw, Mr. Teasdale, and Mr. Schraeger. Although the undersigned was not persuaded in the underlying case by the evidence presented by Respondents, this does not mean that Respondents’ claims were not supported by the material facts necessary to establish the claims. There was competent, substantial evidence introduced by Respondents at hearing showing that: (1) Respondents’ home was in close proximity to White Rock’s frequent blasting activities; (2) when the blasting occurs, the house “sways,” “everything shakes,” “the entire structure of [the] house moves,” items fall off the shelf, and Ms. Alfaro feels a vibration similar to an earthquake; and (3) there are cracks throughout the home--some of the cracks are new, worsening, and have expanded as a result of White Rock’s frequent blasting activities. White Rock is the prevailing party in Dorothy Brown- Alfaro and Amilcar Alfaro v. White Rock Quarries, DOAH Case No. 15-6014CM. However, White Rock has failed to establish it is entitled to an award of attorneys’ fees pursuant to sections 57.105 and 552.40(9). On page 16 of its proposed final order, White Rock also claims it is entitled to recover taxable costs under section 552.40(9), totaling $9,287, as the prevailing party in the underlying case. The amount of taxable costs claimed is based on Exhibits 12A through 12G. In Respondents’ Proposed Final Order, Respondents do not dispute that White Rock is entitled to “recover costs totaling $9,287.15 (all the costs claimed except for the cost of lunches totaling $62.65) as costs reasonably necessary to defend the claims asserted in the underlying case.” The undersigned has examined White Rock’s Exhibits 12A through 12G, which constitute the universe of taxable costs sought, and the total of the costs is $9,287. There is no cost of lunches included within Exhibits 12A through 12G. All of the costs identified in Exhibits 12A through 12G are taxable costs or incidental administrative costs directly associated with the case, and therefore, are recoverable under section 552.40.
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
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed violations of Section 489.129(1)(m), Florida Statutes, by committing fraud, gross negligence, incompetency and misconduct in the practice of contracting, and whether he has violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating applicable building codes with regard to the construction of two residences or additions thereto in Tallahassee, Florida.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, and related rules, which provisions regulate the admission to licensure and the licensure status of certified building contractors, impose standards for the practice of building contracting and provide a means for enforcement of these practice standards by disciplinary proceedings such as this one. The Respondent is a citizen of the State of Florida and is a certified building contractor. He is the qualifying agent for Fountaincrest Builders.. He holds license no. CBC022113. The Respondent had built a substantial number of residences in Tallahassee and Leon County, Florida, in the years in which he has practiced contracting in Leon County. On December 23, 1988, Dr. Ronald Reeves purchased a home in the High Grove subdivision located at 4770 Lancashure Lane, Tallahassee, Florida. The home had been built by the Respondent and Fountaincrest Builders, and Dr. Reeves purchased the home from the Respondent. Dr. Reeves was apparently satisfied with the quality and type of construction in the existing home which he purchased. However, he decided to construct an addition to that home. He desired to construct the addition on the end of the house encompassing the garage (the south end), in order to have room for an upstairs playroom, additional bathrooms, an office and library area, and to continue to have garage space. Dr. Reeves is a medical doctor, who operates a consulting business, using a portion of his residence as his office and work area. Accordingly, in early January of 1989, he consulted with Mr. Fountain about the possibility of constructing an addition to the home for this purpose. On January 23, 1989, he contracted with the Respondent and Fountaincrest Builders for the construction of the addition. He believed that the Respondent could best accomplish an appropriate blending of the structure and appearance of the addition with the existing house since he was the original building contractor, who constructed the house and would be most familiar with all construction details related to it and to the addition. In fact, his decision to buy the existing house was influenced by his desire to build an addition to integrate structurally and visibly with the existing house, so that the fact that the addition had been built at a later time would not be readily apparent. The Respondent assured him that he could structurally and aesthetically blend the addition with the existing house in an appropriate and pleasing manner. The parties agreed to a contract price of $40,666.00. Construction was commenced and carried through to completion, although not to the satisfaction of the owner. Dr. Reeves ultimately paid approximately $36,000.00 of the agreed- upon contract price before frequent and increasingly heated disagreements between Dr. Reeves and the Respondent culminated in the termination of the contract and the Respondent leaving the job. The construction agreed upon consisted of an enclosure of the existing garage to create an office, study and library area with a half bathroom, as well as adding a three-car garage with a staircase and a recreation room and half bathroom on the upstairs level. The contract provided and the Respondent verbally agreed that all work would be performed to the same quality and standards as that prevailing in the existing home to which the addition was to be added. Dr. Reeves and the Respondent discussed Dr. Reeves' desires and requirements for the addition, including the bathroom, study, garage, staircase, recreation room, etc.; and Dr. Reeves thereby indicated to the Respondent the general physical nature and description of the construction he wanted done. The Respondent then selected a draftsman and had the draftsman draw plans for the addition. Prevailing standards for the practice of building contracting in Florida and in Leon County require that a building contractor, who obtains the plans, should be responsible for verifying the measurements to insure that the drawings correctly account for and depict the existing construction and the proposed construction to be added to it. Verifying the measurements in this context means that the contractor should check all dimensions before construction begins to insure that the new construction depicted on the plans, including its junction with the existing building, will fit and match the existing building, both as to dimensions and type and size of materials used, as well as verifying the dimensions depicted on the plans with the actual layout of the proposed construction in the field. This helps to insure that all elements depicted on the plans, materials used and finished components of the construction will appropriately fit within the dimensions depicted on the plans and that those dimensions will ensure appropriate mating of the new construction with the old. The plans obtained by the Respondent contained the following caveat from the draftsman: While every attempt has been made in the preparation of this plan to avoid mistakes, the maker cannot guarantee against human error. The contractor on the job must check all dimensions and other details and be responsible for same. The Respondent obtained the building permit for the additional construction on January 24, 1989 and construction commenced shortly thereafter. Construction had commenced before the Respondent ever advised the owner that certain problems existed regarding differences between the dimensions depicted on the plans and the actual field rendering of those same elements of the construction. During the course of construction, Dr. Reeves perceived certain deficiencies and discussed them on a repeated basis with the Respondent. These deficiencies and the discussions concerning them, which became more and more heated, culminated in Dr. Reeves' sending the Respondent a registered letter on May 9, 1989 identifying the deficiencies which ultimately were the basis for the charges in the complaints. In Leon County, all structures constructed pursuant to a building permit must comply with the Standard Building Code; and all such structures must have a building permit issued before construction can commence. It is the builder's responsibility to be familiar with that building code and to apply it correctly to each phase of construction. The code applicable to this construction and proceeding is that contained in the Standard Building Code, 1935 Edition, with 1986 and 1987 Revisions ("SBC"). This code and its predecessor versions have prevailed in Leon County for the past 16 years. The Respondent had assured Dr. Reeves that the exterior appearance of the proposed addition would aesthetically blend with the existing house so that the junction of the addition with the existing house would not be noticeable. In fact, however, the brick on the front elevation or face of the Reeves' home, facing the street and front yard, does not properly blend with the brick of the existing home at the point where the addition joins the existing home.' Although brick of a matching size, shape and color was used in the addition, the new brick does not correctly align and blend with the old brick. After the brick work was already in place, the Respondent represented to Dr. Reeves that the blending was, in his opinion, of good quality and about the best obtainable from masons and contractors in the trade in the Leon County area. In fact, however, `the existing masonry work is substandard. The joint thicknesses vary beyond acceptable limits and the brick was not correctly "keyed in" or overlapped with existing brick courses from the existing house corner and thus does not achieve minimum standards of masonry construction prevailing in Leon County and in Tallahassee. In fact, at one point, in a noticeable area near the ground, at the junction of the old and new brick veneer walls, bricks are cut or broken and the old half brick is joined to the new half brick with a mortar joint rather than whole old bricks and whole new bricks being correctly overlapped or "keyed in". Thus, even if the Respondent intended that the blending of the brick would be of good quality and would not be readily noticeable, the execution of the masonry work was not actually carried out in that manner. The plans as originally procured by the Respondent from the draftsman depicted a garage window on the front of the addition to the home at the same level as the existing windows in the home itself. That window was depicted on the original plans as a square window. The plans contain a notation by Dr. Reeves', questioning why the window was square instead of matching the existing windows of the house in shape, which were large palladian windows (having arched openings). Because Dr. Reeves wanted the palladian window, the plans were taken back to the draftsman for revision. When the draftsman revised the plans, he indicated to the Respondent that the palladian window would cause a problem because it was higher than the square window originally depicted on the plans and, therefore, would project up into the space required for the window "header". The header is a top plate or structural component designed to span the top of a window opening at the top of a wall and which, in this case, is required to support part of the load or weight of the upstairs floor and roof assembly. The plans were nonetheless changed to include the palladian window, and the Respondent obtained the plan showing the palladian window in the garage wall, rather than the square window, prior to commencing construction. In order to fit the palladian window in the wall and still have room for a header over the window opening upon which to support the upstairs floor and roof components overlying the top of the window opening, it became necessary to frame the window in such a way that the finished window would ultimately project approximately one foot lower or closer to the ground or grade level than the existing windows in the home, which is readily apparent when viewing the front elevation. The Respondent did not inform Dr. Reeves that the window would be approximately one foot lower than the existing windows in the home until well after construction had commenced and, indeed, the window was already framed into the wall. Dr. Reeves did not actually approve of this difference in window elevations. He felt compelled to accept it since at that stage of construction, it was the only practical solution to the problem created by there being insufficient space in the wall to accommodate the palladian window if installed at the level of the existing palladian windows in the home. Although it is true that Dr. Reeves insisted on the change from the square configured window to the palladian window, the fact that the window was ultimately installed at a lower level than existing windows and is thus aesthetically undesirable due to its misalignment with existing windows was due to the Respondent's failure to verify the measurements of the plans and their depiction of the window with the dimensions necessary to the correct framing of that wall. This resulted in insufficient space required for the header or support beam system spanning the window opening necessary to support the overlying second floor and roof elements of the construction. The relatively incurable nature of the problem also resulted, in substantial part, from the Respondent's failure to advise the owner of the dimension problem created by the window configuration change before construction began and had progressed to the point that proper alignment of the window and proper window configuration could no longer be effected. It was the Respondent's duty to reconcile all discrepancies in the existing measurements in the plans for the permitted addition before the work commenced and to disclose in a timely fashion any deviations from those plans to the owner in order to effect the owner's consent or agreement on any further changes or corrections. The plan for the upstairs playroom area of the addition depicted that a bathroom or half bathroom was to be located at the southern end of the addition above the entrance to the new garage area in the southwest corner of the upstairs playroom area. The plans depicted a double window in the south wall of the upstairs playroom directly over the garage doors. During the course of the construction, the Respondent discovered that in order to construct the bathroom of the size, dimensions and location depicted on the plans, the bathroom would encroach or project in front of the attic playroom window if placed in the position depicted in the plans. The plans, themselves, do not show such an encroachment. Either the plans are incorrect in depicting the location and dimensions of the bathroom and the window in positions relative to each other, or the Respondent erred in interpreting the plans and in constructing the bathroom and window in deviation from the plan drawings. In any event, the Respondent did not offer explanation to nor seek permission from the owner for the change in location of the bathroom. The Respondent told Dr. Reeves that the bathroom would have to be moved because it would encroach on the attic playroom window, but did not tell him that the location was being changed until the bathroom was already being framed in the new location at the other end of the attic playroom on the same west wall. Thus, the owner did not approve of the relocation of the bathroom, but felt that there was no practical choice in having to accept its relocation at that point because its construction had already progressed to the point where it would be impossible to relocate it once again to its originally depicted position. Thus, based upon the Respondent's references to the apparent encroachment of the bathroom over the attic playroom window space, the owner acquiesced in the relocation. It then developed that, as a result of relocating the position of the bathroom, the bathroom door would not open sufficiently to meet building code requirements regarding the distance and space to be allowed for the opening of doors. The bathroom door still does not open fully as a result of the bathroom relocation. This is because the bathroom door is too close to an opposite partition wall and contacts that wall when opened so that the door cannot open fully. As a result of relocating the bathroom, the wall in question had to be also relocated so that the bathroom door would open wide enough to meet code requirements. As a result of the wall being relocated, patching of the plaster-type of wall coating was required. That patching resulted in a substandard wall finish with a sort of light adobe texture changing to a sort of heavy adobe stucco texture within six feet of wall space on the same wall. This is unsightly in appearance and not in accordance with the standard of construction for contractors in Leon County and not in accordance with the quality of construction which the owner was told he would receive in the new addition, as compared to the quality of the existing house. All of this resulted from the Respondent's failure to timely anticipate the bathroom location problem and inform the owner. The Respondent also failed to reconcile the plans with existing dimensions prevailing at the site in relation to the existing construction to which he was connecting the addition. This resulted in the necessity for relocation and modification of the stairwell and stairs from that originally depicted in the plan drawings. A stairwell to the attic playroom was constructed after three attempts. The last attempt, after redrafting of the plans, finally achieved a workable arrangement for the stairwell and stairs, but was not in conformity with the originally drawn plans. The draftsman for the stairwell and stairs met with carpenters on the job site to assist in resolving discrepancies between the measurements depicted in the existing structure of the house and the plans. The draftsman also had to return a second time to meet with the owner and the carpenters at the owner's request to assist in adequately locating, designing and constructing the stairwell and stairs. The Respondent was not present at either of those two meetings. The owner did not find out that the stairs had to be relocated until framing of the stairs was well underway. The Respondent failed to adequately anticipate measurement discrepancies between the existing house structure and the planned addition in interpreting the plans for the stairwell and stairs and in carrying them out. The Respondent located plumbing above the floor level in the addition and in the renovated garage of the addition. This consisted of the sanitary sewer drain line from a newly constructed half bathroom. The plans had not depicted constructing the plumbing or sewer drain line above floor level in an exposed fashion. Because the sanitary sewer line was installed above the floor level of the addition on the ground floor, it had to be "boxed in" or surrounded by a plumbing chaise where the sewer line went through the office area of the new addition. This caused a condition incompatible to some extent with the design of the structure and the owner's intent for that space. It was to be a portion of his office area, but the plumbing chaise to conceal the above floor sewer line resulted in the file cabinets, planned to be installed in that area, resting approximately six inches out into the room away from the wall, resulting in less usable floor space in that office area. Additionally, the same sewer line was exposed in one corner of the garage area of the addition suspended above the floor before it exited through the foundation wall of the building at a point above floor level in the garage. The plans did not depict such an exposed sewer line, and the owner was not aware that the sewer line would have to be located inside the addition or the renovated garage portion of the addition above floor level until he discovered them already installed or being installed in that fashion during construction. When he discovered them that way and questioned their location and configuration, the Respondent explained that in order to achieve sufficient "fall" or slope for the gravity sewer line to the septic tank, to which it was routed, the sewer line had to be constructed above floor level. While this was shown to be true and resulted in the owner being economically benefited by using the same septic tank which was already installed for the house, he was not given the opportunity to choose whether to construct them in that fashion or to, in a more expensive way, cut through the concrete floor and adjacent foundation wall to go immediately outside the building from the bathroom. This method would have been more expensive, but would have been more aesthetically pleasing. The point is that the owner was not given an opportunity to consider this departure from the plan drawings before the construction of the sewer line had progressed to the point where it was impractical to change the design and location of it once again. Roof framing trusses are very critical construction components. Roof trusses are pre-engineered, pre-constructed rafter and attendant bracing assemblies which are built by a truss manufacturer, transported to and installed on the job site. Their design, construction and placement on the roof structure of a building is to be accomplished in exact accordance with building plans and the truss manufacturer's design and specifications in order to avoid the risk of failure due to downloading of the weight of the roof of a building, as well as failure during wind uplift in storm conditions. Thus, structural engineering and contracting standards with regard to truss manufacture, installation and repair must be strictly adhered to, as depicted in Sections 1708.2.1 and 1708.2.3 of the SBC, in effect in Tallahassee and Leon County. Trusses installed over the addition on the Reeves' residence were improperly cut and after the cut was discovered, were improperly repaired by the Respondent and his subcontractors. In the course of a framing inspection, the inspector discovered that the "heel end" of one truss over the new garage addition at the Reeves' residence had been cut to accommodate the location of the top of the brick veneer wall on the outside of the framed wall of the new addition. That is to say, the bottom horizontal member of the truss projected outward from the framed wall too far and had to be cut or "notched out" to allow it to be installed in relation to the height of the top of the brick veneer wall immediately adjacent to it and to the framed wall. The Respondent did not have a qualified superintendent on the job at the time of the inspection nor was the Respondent present. When later confronted by the building inspector with this problem, the Respondent either denied its existence or had no knowledge that the truss end had been cut. He did, however, agree to repair them immediately. The repairs to the trusses were specified by engineering personnel of Alpine Engineering, who designed and built the trusses. The repairs were to be accomplished by the addition of metal reinforcing plates at certain critical junctions of the truss members. The repairs were not carried out properly, however. The corrective metal plates specified by Alpine Engineering were not properly placed and nailed. Adherence to truss specification, both as to design, installation and repair, if necessary, is critical to the structural integrity of a building, especially under downloading conditions and storm wind uplifting conditions. The failure to properly install this truss, including the cutting of it at a critical point to make it fit, and more especially, the incorrect repair after the defect was discovered, constituted a departure from generally-accepted structural engineering and contracting standards prevailing in Tallahassee and Leon County in the construction industry. It constituted a specific violation of the above-cited Sections of the SBC. The Respondent also allowed a negative grading condition to exist in the vicinity of the garage door opening on the west side of the garage. In effect, a negative slope existed in this area causing rain water to flood into the front portion of the garage. This apparently resulted from inadequate supervision of the subcontractor who performed the grading of the ground surface around the addition to the house. The grading behind the garage addition on the west side, combined with the negative slope of the driveway concrete pad in that area allowed water to flow into the garage. This condition was aggravated somewhat by the owner's failure to timely effect sodding of the graded area, as the subcontractor had recommended. The subcontractor had recommended that the area be sodded completely so as to retard the flow of water and the attendant erosion of soil from the grade behind the garage and driveway. The condition was ultimately alleviated by the owner, himself, when he built a small retaining wall of brick to redirect the flow of water away from the negatively sloped area of the driveway pad. In addition to the problem discussed above concerning the improper truss installation and repair, the Respondent also failed to insure that the roof on the new addition was properly supported and framed. The "common-framed" portion of the new roof (that part not constructed with pre-engineered trusses) joined the factory-built trusses on the existing garage. At the point of that juncture, an unsightly bulge in the finished shingle level or plane of the roof occurred, which was itself due to poor construction by failure to insure that proper measurements were taken and that the common-framed members were cut to the proper measurements so that the level of the common-framed portion and the factory-truss-supported portion of the new roof would line up in the same plane. When this condition came to the Respondent's attention, after the roof was completed, either through remonstrances of the owner or through advice by his carpenters, the Respondent promised the owner that they would correct the condition by "shimming up" or raising the common-framed roof portion so that the bulge would be eliminated and the common-framed portion and the truss-supported portion of the addition's roof would be level with each other. After the shimming or raising of the common-framed portion of the roof was accomplished. and after the "final" framing inspection, the building inspector made another inspection visit to ascertain if proper repairs had been accomplished at the bulged roof area. He observed that the roof had been raised by the placing of the shims or wedges under the ends of the common-framed rafters between the ends of those rafters and the decking of the pre-existing roof on the original portion of the house. (See Petitioner's Exhibit I, page 101; Petitioner's Exhibit F, page 63, photo 7, page 64, photo 10 in evidence) The lifting of this portion of the roof by the installation of shims accomplished a favorable cosmetic result in the exterior appearance of the roof line. It was accomplished at the expense of structural integrity, however. The shimming of the common-framed roof rafters created a dangerous risk of wind uplift during storm conditions because the holding power of the nails was largely nullified at the end of the rafters. This is because the installation of the shims resulted in the nails being removed approximately half their length where the ends of the rafters were "toenailed" into the old roof decking. In permitting the installation, and then the "shimming up" of the common-framed portion of the new roof, resulting in the partial pullout of the nails attaching the ends of the common-framed rafters to the existing roof deck beneath, no apparent effort was made (by lifting the old shingles) to ascertain if the joint of the new, common-framed rafters was with the existing rafters beneath the old roof or merely nailed through the plywood decking of the existing roof. This latter condition would result in little support for the new common-framed portion of the roof and almost no resistance to wind uplift, especially in consideration of the fact that the addition of the shims under the new rafters greatly reduced the holding power of the rafter nailing. This constitutes a clear violation of SBC 1701.1.1, requiring that wood members and fastening comply with and conform with good engineering practices. Additionally, the common-framed rafters were allowed to be set on 48- inch "centers," or a distance of 48 inches between the center of each rafter, instead of the Code required 24 inches. The plywood decking for the roof has a load rating only allowing a maximum of 32 inches of unsupported span for that decking. The inspector later required the installation of additional rafters between each of the existing common-framed rafters installed by the Respondent with the addition of horizontal purlins, or two-by-four bracing members, between the rafters in order to prevent sagging of the plywood decking at the decking joints. Lumber used for such framing is stamped with codes that correlate to the use and load tables in the SBC for the permissible uses of lumber for framing, including roof framing. The failure to set roof rafters on two-foot centers under such circumstances is a substantial departure from prevailing contracting standards in Tallahassee and Leon County. A ridge beam support column was installed beneath the ridge beam to which the common-framed rafters attached at the center, highest point of the common-framed portion of the addition's roof. This support column was established by the Respondent's testimony, as well as that of the framing carpenter involved, to be unimportant and not intended as a structural member, being merely placed there to support and hold the rafters in alignment until they had been properly nailed. The problem with it, however, is that it was poorly nailed with only three nails connecting it; and it was left in place after completion of this portion of the roof. It was merely nailed to the roof decking beneath without a supporting rafter member directly under it to bear the downward load exerted on it by the weight of the roof system above it. If construction of the common-framed portion of the roof had been performed properly, there would be no downward loading on this column; and, indeed, it would be unimportant. In the instant situation, however, the ends of the rafters, as discussed above, had been shimmed up in such a way that they were no longer securely nailed at each end. This permits the weight of the roof system, and anything on that roof above it exerted in a downward fashion, to allow potential spreading of the feet or ends of the rafters where they attach to the pre-existing roof beneath, so that they cannot bear all of the downward load of the roof. This, in turn, puts a downward loading on this column which, due to the incorrect rafter framing and installation, results in it being a support column even if it was not intended to be. It is inadequately nailed to be a support column and is inadequately attached because it is attached merely to the plywood roof decking and shingles underneath it, instead of to a pre-existing rafter under the pre- existing roof decking. The potential for horizontal spreading of the ends of the common- framed rafters where they were shimmed up could be alleviated if the proper horizontal collar beams had been in place running between the rafters, in a horizontal plane, from one pitch of the roof to the other in the common-framed portion of the roof. These were left out, however. Thus, there is no real preventive measure to prevent the spreading of the rafters and the potential that the inadequate toenailing at the ends of the rafters may become loosened with the downward loading on the roof over time. Thus, the failure to properly attach the ends of these common-framed rafters to supporting members beneath the pre-existing roof decking and to adequately nail them, coupled with the failure to install the correct collar beams between the two legs of the rafters, as well as the use of the ridge beam support column in the way in which it was used resulted in the common-framed portion of the roof on the addition being extremely inadequate in terms of complying with correct and generally-accepted building and engineering standards prevailing in Tallahassee and Leon County under the purview of the SBC. Additionally, common-framed rafters in this area were severely bowed or bent near the new roof line, due to the excessive length of the rafters used. In other words, the two-by- four section rafters used span too great a length for their cross section volume and density to adequately support the roof load they have to carry. The required cross-section for each rafter spanning the length required should have been 25 cubic inches. They were only of 8 cubic inches cross section. The potential consequence is thus severe bowing of the rafters and eventual roof failure. Because of the inadequate toenailing of the rafter ends allowed by the Respondent, the potential uplift load from high winds exceeded the dead load downward of the weight of the roof itself on the rafters by some 200 pounds at the nailing points at the ends of the rafters. That is to say, the storm wind standard in the building code results in an uplift loading on such a roof which, when considered with the dead load of the roof in a downward direction, results in an uplift potential of 200 pounds at the nailing points under the storm wind velocity condition contained in the subject standard in the SBC. Thus, there is a real potential for failure of this portion of the roof in the event of hurricane-force winds. The Respondent additionally allowed the construction of point loadings on shims under the roof framing, where the roof framing joins the vertical wall framing, which actually bear on the brick veneer exterior wall. Brick veneer is intended to be a wall finish or covering rather than to provide structural support for the wall to which it is attached or the roof above it. It can easily fail if it supports roof loading. The downward loading from the roof members at the point in question was 400 pounds per square inch. The brick veneer wall was constructed with standard "type M" mortar, which has a standard strength of 300 pounds per square inch. Thus, the bearing of "down loaded" roof weight onto the brick veneer wall, transmitted to that brick veneer wall by the use of shims or wedges on top of it bearing under the roof framing members, can result in failure of the brick veneer wall. Use of shims in this fashion violates Section 811.1.2 of the SBC It is true that the Respondent himself did not perform the roof framing in the manner discussed above, but rather it was performed by his framing and carpentry subcontractors. It is also true that the Respondent was not on the job every day, observing the installation of each roofing member, but rather had to supervise other jobs in other areas of the City or County, as well. It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs. The contractor is, however, responsible for the quantity and quality of work performed by his subcontractors and has a duty to supervise them adequately. Even if the deficient framing was done without the Respondent's knowledge, he had a responsibility to promptly see that it was corrected. This responsibility was not fulfilled in the instant situation, and the corrections called to his attention by the building inspector were either not made, or were deficiently performed when made, in the manner found above. Either the Respondent's supervision of the job was grossly inadequate or he lacked a basic knowledge of proper roofing and structural framing standards necessary for safe residential roofing construction or a combination of the two factors. The finished carpentry and plaster work in the addition was deficient in a number of respects. This work was performed by the Respondent's subcontractors and, to some extent, by the Respondent, himself. The built-in bookshelves in. the office area were trimmed with two different types of mismatched trim moulding. Additionally, the shelves warped because they spanned too great a distance for the strength of the lumber used for the shelves. This resulted in them bowing severely when loaded with heavy books, and on some occasions, resulted in them falling when loaded with books. The Respondent was aware that these shelves would be used for Dr. Reeves' books before he constructed the shelves and yet constructed them of materials and in such a manner that they would not adequately bear the weight of the books placed on them. Standard building practices require disclosure to an owner at any point when design materials are not appropriate to the construction element in which they are to be used. In using materials for the bookshelves that would not adequately bear the weight which they were designed to bear, the Respondent either negligently did not insure that lumber of the proper strength and dimension was used to bear the weight and see that it was properly braced or, alternatively, did not know that the type of lumber he used would not sufficiently bear the weight of the books, which he should have foreseen would be placed on the shelves. In response to Dr. Reeves' complaint about the quality of the bookshelves, the Respondent merely indicated to him that the materials used were the highest quality and that the shelves were constructed properly. He then suggested placing the shelf boards flat on the floor with weight on them to straighten them out. This response ignores the fact that inadequate materials and construction methods were used in the bookshelves in the first place, both as to the necessary structural strength and as to the appearance of the bookshelves, which was clearly substandard in view of the mismatched trim moulding used around the top of the shelves. Additionally, when the attic playroom windows would not close because of the improper sizing of the windowsill, the Respondent sent a carpenter, who chiseled out recesses in the windowsill to accommodate the window handle so that the window could shut in a downward direction and lock. None of the other windowsills in the house match the sill in the attic playroom windows, because it was not necessary in any of the other windows to chisel out a recess for the window handles to go down far enough for the window to lock. This problem could have been remedied by the removal of the bottom window casing member and lowering it a sufficient, small amount so that when the windowsill was replaced on top of it, adequate clearance for the handles would still exist when the window was locked so that a person's hands could fit into the window handles to raise and lower the window. Instead, the Respondent took an expedient approach at remedying this situation by chiseling out a space in the windowsills for a person's hands and then attempting to cosmetically improve it by suggesting the installation of metal cups in the windowsill to conceal the chiseled out portion. Additional finish work in the addition, which was substandard, involved the wall patching in the stairwell and the patching and finish work around the baseboards in the stairwell, which was substandard and of a rough appearance. The skylights were not finished in the addition in a way to match the skylights in the existing house, which had been trimmed out with proper moulding and covered with a light-defusing plexiglass, which was left off the skylights installed in the addition. More importantly, the handrail on the steps in the new addition was merely anchored through the sheetrock wall with toggle bolts or screw anchors, rather than being fastened or anchored in the wall studs themselves behind the sheetrock, which would have been a strong connection to pine lumber, rather than in weak plasterboard-type sheetrock material, which was the actual result. Because of the failure to attach the stair handrail to the studs in the wall, it would be possible for a person using the handrail to fall down the stairs and be injured. In fact, the handrail actually fell off the wall eventually because of this inadequate attachment. It is noteworthy that the Respondent, himself, personally participated in the installation of this handrail in a deficient fashion. The finish grade outside of the garage wall on the west side of the garage portion of the addition was higher than the floor of the garage, that is, the soil in the finish grade came up higher on the outside of that wall than did the concrete floor of the garage on the inside of that wall. This was doubtless the result of the subcontracting grader's efforts to create a valley or a slight swale around the house a short distance away from the wall so to conduct water away from the house. What resulted, however, because of inadequate reverse sloping and because the wall was inadequately waterproofed, was that water seeped through the wall in a manner which could eventually rot and deteriorate the interior wall studs and the sheetrock on the inside wall of the garage. A water line or stain is visible six inches above the floor line on the interior wall of the garage at this point, which indicates that moisture is migrating through this wall. This is a departure from prevailing standards of practice in the construction industry. An additional severe defect in the construction of the addition occurred in conjunction with the installation of the palladian window discussed above. The Respondent permitted the use of doubled "two-by-sixes" nailed or "scabbed" together as a header member or plate spanning the top of the palladian window opening in the garage. Although double two-by-sixes are stronger than a single two-by-six or even doubled two-by-fours, the doubled two-by-six member was not sufficient to bear the load from the flooring and roof system bearing downward from the room and roof above. Doubled two-by-twelves or their equivalent was required for such a load-bearing-span. When the building inspector visited the job site and observed the doubled two-by- sixes, he issued an oral correction notice to the Respondent's subcontracting framing personnel on the job. When he returned to inspect the job later, after sufficient time had elapsed to make the correction, he found that the two-by-sixes were still in place and the sheetrock installers were already covering the interior walls of the garage. This would soon have the effect of concealing the inadequate, doubled, two-by-six header. Because of this, the building inspector immediately issued a stop work order on the job. If the Respondent had properly carried out his duties in supervising this job, he would have been aware that the two-by- sixes had been substituted for two-by-twelves or their equivalent. Even if he had not initially realized that the two-by-sixes were installed and were inadequate (although a competent contractor should have), he should have seen that the two-by-sixes were replaced when the building inspector called it to his or his subcontractor's attention. A stop work order should not have been necessary in order to effect safe construction of the window header in question. Eventually the problem was corrected by having the truss company engineers involved design a steel "flitch plate" to adequately construct and install a safe window header in the space that was available. This was done by sandwiching the steel plate in-between two two-by-sixes, which then made an adequate header support member easily installed in the available space. The Respondent either negligently failed to note that the use of the two-by-sixes was inadequate or failed to adequately supervise the framing work on the job. Alternatively, if the Respondent knowingly allowed the available space for the header at the top of the window too dictate the size of the header, rather than using Code required window-opening span tables to calculate an effective alternative, he would have engaged in misconduct in the practice of contracting. The record does not clearly reflect, however, that he knowingly allowed the two- by-sixes to be used for this reason, although it does establish that he should have been aware of their use and of their inadequacy and promptly acted to correct it when it was called to his attention, which he did not do until the stop work order was issued. The Griggs House On November 10, 1986, Dr. Griggs, after having solicited proposals for construction of his residence, accepted a proposal from the Respondent to construct a residence for him and his wife at 3552 Trillium Court, Tallahassee, Florida. The cost of the construction was to be $170,090.00. The original proposed cost, prior to the entry of the parties into a contract, was $188,000.00. Certain deletions and changes were made, which resulted in the ultimate contracts price of $170,090.00, however. Construction commenced on the Griggs, residence in February of 1987. A certificate of occupancy was issued in October of 1987. During the course of construction, certain deficiencies in the house were communicated orally and in writing to the Respondent by the Griggs. These included posting of letters and the leaving of "post-it" notes on the spot of certain areas of construction which the Griggs believed to be defective or which they wanted changed for some reason. The frequent changes in construction elements proposed by the Griggs, many of which resulted from changes of mind by their concerning how they wanted certain elements of the construction performed, culminated in a strained relationship between the Griggs and the Respondent. Ultimately, they sent a number of registered letters to the Respondent concerning their dissatisfaction with the manner in which the project was being completed and concerning items they wished performed by the Respondent. Some of these letters were returned undelivered and unopened. Their differences culminated in Dr. Griggs' decision, after ten months of construction, to finish the house himself because he felt that the Respondent was not responding to his requested corrections or changes. The contract had specified that the Respondent had six months to complete the house. Some of the delay, at least, was the responsibility of the Griggs, caused by their requesting various changes in the way the house was constructed and to be constructed. In any event, after Dr. Griggs terminated the relationship with the Respondent, he called the Tallahassee Builders' Association, lodged a complaint, and received the recommendation of that Association that he hire an engineer to review the construction performed to date. Ten days after Dr. Griggs received a letter from the Respondent stating that he was leaving the job, Dr. Griggs gave the Respondent a letter terminating his contract. A number of significant construction deficiencies and errors exist in the manner in which the Respondent constructed the house. These include problems with the foundation and basement wall construction, certain framing deficiencies in the walls and roof, the front porch, inadequate water damage protection, and improper installation of correctly engineered framing components. These deficiencies are treated in detail below. The Respondent fabled to install adequate steel reinforcement and to adequately fill cores or cavities in the concrete blocks of the outside, western-most basement wall, in that area of the wall where backfall or earth rested against its outside surface. This wall was constructed of 12-inch concrete blocks, with the normal cavities or cores in each block. The blocks were laid by the brick mason in "courses" or rows, one block course on top of the course below it to a height of nine feet. Each core thus represented a vertical cavity of approximately nine feet in the wall. The architect's plans called for inserting vertical steel reinforcing rods or "rebar" in these cores or cavities, 48 inches apart, pouring them full of concrete, with the vertical rods extending to the top of the nine-foot wall where a solid concrete lintel was to be poured over and around them. The plans also called for horizontal steel reinforcing rods to be placed at two-foot intervals from the bottom to the top of this wall in the area of wall where backfill or earth was retained on the outside of, and bearing against, the wall. Although vertical steel dowel rods were installed from the foundation footing extending into the vertical concrete block wall in this west wall, they only extend in the case of each such dowel, from two feet, three inches to 36 inches above the foundation footing. The plans call for each vertical rod to extend the full height of the nine-foot wall where earth bears against it. (See Respondent's Exhibit 10 and Petitioner's Exhibit AA in evidence, as well as the testimony of Martin Page, Engineer). None of the vertical steel rod reinforcing in the 12-inch block wall was present from the bottom to the top of the nine-foot wall. None of it extended vertically more than three feet above the footing. Additionally, the cores of this basement wall were not poured solid with concrete, as specified in the plans for the earth-retaining portion of the wall. In fact, less than 50% of the cells in the earth-retaining portion of this wall were poured solid. The test corings performed by Ardiman & Associates, depicted in Respondent's Exhibit 10 and in the testimony of Martin Page and others, establishes that, through this coring method and by visual inspection thereafter, this reinforcing in the wall was missing in large part. Nearly all of the specified horizontal rebar steel was also omitted, although the Respondent maintained that he used "durawall" material on every two courses of block, instead of the specified horizontal rebar steel. He maintained this was equal to the horizontal steel as an adequate reinforcement. This was not established to be adequate, however, in terms of proper engineering and construction and, in any event, was not in accordance with the plans. If it was impossible, as the Respondent maintained, to put the horizontal steel in the mortar joints because of lack of sufficient space between the blocks in those joints, he should have called this to the architect's attention and obtained an alternative solution approved by the architect who drew the plans. Construction in this manner, for the earth-bearing portion of the west wall, renders it deficient in the structural strength demanded by the design and renders it of less structural integrity in the future with possible cracking and leaking to result. The potential for future damage caused by the inadequate reinforcing in the wall is alleviated somewhat by the fact that the earth retained by the wall does not extend to its full height, nor does the entire wall have to support earth loading. Only 28 feet of the wall has earth backfill extending upward for a portion of the wall's height. In any event, however, to correct this failure to follow the architect's design (which was adequate as designed) will be costly and time consuming, although it was not clearly shown that the problem is of sufficient seriousness to justify constructing a retaining wall on the outside of the present west basement wall at issue, as the Petitioner maintains. The Respondent constructed a front porch on the residence by placing the brick forming the porch floor over felt tarpaper and plywood, as well as framing members which were not "pressure treated." Since they are not pressure treated, they are susceptible to water-induced rot damage. The felt paper, itself, is not impervious to water and is not adequately waterproofed. Accordingly, the non-pressure treated wood beneath the brick and felt paper, including structural members under the porch, are already rotting; and the bricks and mortar of the porch are loose due to being placed on an unstable, water-damaged surface. The water runs down into and erodes into the basement space below and adjacent to the porch location. The plans originally called for a roof to be placed over this porch floor which would have alleviated the water damage presently being caused. Because of a change agreed to by the Griggs and the Respondent to place three windows above this porch, the Respondent deleted the porch roof. Although the deletion of the porch roof may, indeed, have been necessitated by the addition of the three windows which the Griggs desired, the Respondent failed to explain to them the consequences of deleting the protection of the roof over that porch; and, indeed, knowing that the roof was to be deleted, the Respondent should have taken steps to insure that the porch floor was constructed of waterproof, stable materials. As constructed, there is a load-bearing wall on part of the support system that underlies the brick porch, creating a dangerous situation over time because of weakness caused by water- induced wood rot. The construction of the porch was shown not to comport with the SBC, particularly Section 1703.15, because it was not constructed with pressure- treated wood or in the alternative, because it did not have an impervious material between the brick porch floor and the wood beneath. This method of construction also violates SBC at Section 1409.4 because the masonry floor rests on a combustible wood material. Additionally, the exterior trim on the house lacked proper flashing and where it contacted concrete was not pressure treated. The windowsills were improperly installed so that the drip edge on the window casing could not function properly in conducting water away from the house. Dr. Griggs requested that the Respondent construct a crawlspace storage area adjacent to the finished portion of the basement, and the Respondent agreed to do so. This space was not included in the original plans, but the Respondent agreed to construct it at Dr. Griggs' behest in order to accommodate Griggs' wishes. He never informed Dr. Griggs, however, that in order to get sufficient space in the storage area, the Respondent would have to excavate the earth in the area in such a way that the floor slab poured in this basement crawl space would be significantly lower than the existing perimeter foundation footing. This resulted in exposing the soil under the existing foundation footing above the poured slab. This allowed the soil under the foundation footing to erode due to passage of water from outside the house, particularly from the area of the front porch, so that soil was eroded from under the foundation footing in this area. The creation of such a condition ir1i the crawlspace storage area is a serious structural problem. It could cause, if allowed to progress uncorrected, cracking of the foundation or collapse of the walkway above it on the outside of the house. This condition is a serious departure from prevailing standards of construction practice for similar foundations in Leon County and violates the SBC, specifically Section 1302.1. This provision requires that the bottom of foundation footings and foundations extend no less than 12 inches below the finished earth grade. By excavating out and installing the slab floor beneath the foundation footing, the result was that the foundation footing was resting approximately 12 inches above the finished grade on the inside of the footing. The earth beneath the exposed footing eroded away until the matter was corrected by the installation of brick and cement "parging" to retain the earth beneath the footing. This corrective measure was specified by the architect for the job and was eventually accomplished. In the same area of the basement crawlspace, the Respondent also permitted non-pressure-treated bottom plates to be installed in direct contact with the concrete, which can promote water-induced rot in violation of Section 1703.4, SBC. Although the Petitioner charged that the basement floor slab, itself, was not poured within an acceptable tolerance of thickness, the evidence, consisting of the results of the Ardiman engineering investigation of this matter, in evidence as Respondent's Exhibit 10, showed that the basement floor slab averaged approximately 3.97 inches thick, which is sufficient to meet the building code requirements. It was shown, however, that the slab does not rest on top of the foundation footings on the southwest or north portions of the foundation, as specified in the plans. Although the Respondent maintained that pouring this slab as a monolithic slab with thickened portions under the load- bearing areas successfully addresses this problem, in fact, the evidence shows that some of those load-bearing, thickened portions of the slab are not the full required ten- to twelve- inch thickness, but rather are on the order of six to nine inches thick, with reinforcing steel not encased in concrete at at least one point. This is an insufficient footing under the interior walls of the basement. Thus, although the slab is of a sufficient average thickness to meet the building code requirements, the thickened portions of the slab are not sufficient to support load-bearing walls within the context of compliance with good construction and engineering practices established by the Petitioner's expert witnesses. A floor truss or joist was installed upside-down, due to a subcontractor's mistake. In order to properly comply with engineering specifications, the addition of "gusset" plates was required according to the engineering specifications furnished by the truss manufacturer. The repair was appropriately made. Misplacement of this truss should have been readily apparent to the contractor if propel supervision had been effected on the job. The particular circumstance of the truss placement, configuration and loadbearing requirements made structural failure as a result of its upside-down placement unlikely, however. The Respondent failed to insure, by adequate supervision, that certain walls were properly framed according to the architect's plans. In this respect, the ceiling height for the basement was designed in the plans to be nine feet; but the Respondent allowed the walls to be framed in such a way as to result in an eight-foot ceiling height. The upper floor is framed to accommodate a nine- foot ceiling according to the plans, however. Three load-bearing door headers (load-bearing members spanning the top of door openings in the basement) were constructed in such a way as to not be in contact with the wall framing above or the vertical supports or "cripples" below. The cripples were cut too short. The owner was required to take the remedial measure of hiring a carpenter, who jacked up the support headers above these door openings to the correct load-bearing positions and then replaced the cripples with cripples of proper length so that they would bear properly against the headers and prevent any sagging or cracks from developing in the walls, or improperly-fitting doors above. This could result from sagging of the wall plate, wall and floor above these improperly fitted headers and cripples. Additionally, horizontal purlin supports needed to be added to interior walls between studs in the basement as a remedial measure, after the Respondent ceased work and left the job site, in order to prevent bowing of studs from downward loading. The endmost stud of a non-load-bearing wall in the basement contacted or "butted" against a concrete block wall. It was not treated to resist moisture-caused rot. The use of non-pressure-treated studs at points where that wood must bear against concrete is contrary to prevailing standard building practices, since only pressure-treated rot-resistant lumber should be in contact with moisture-prone concrete. This condition had to be repaired by a carpenter retained by Dr. Griggs. Common-framing was constructed on top of and between two trussed roof areas. The roof joists were insufficient for the spans covered,. and the bearing points of the ridge beam were improperly braced. The effect of this was to create a soft or flexible roof section in this common-framed area. This means that with a live load atop the roof, such as a person walking on the roof, the roof would `flex, which can cause failure over time as the roof ages due to flexing, which will cause leakage. The original plans for the roof call for a polynesian-type roof line, that is, with gables and a compound or cantilevered pitch. The home was built, however, with a conventional, straight-pitched roof. It was not established, however, that Dr. Griggs and his wife had never authorized the change from the polynesian roof line to a straight pitch. Rather, there had been discussions between the Respondent and the Griggs before entering into the contract about ways in which they could save costs. In response to these discussions, the Respondent had Ben Sheppard, the draftsman for the truss system, redesign the roof system to depict a straight or conventional pitched roof. The weight of the evidence indicates that the Griggs approved of this change in the roof before entering into the actual contract. Upon questioning of Dr. Griggs by roof truss installer, Reggie Brown, when the trusses were delivered to the site and when the trusses were installed on the upper floor framing, concerning them not providing for the cantilevered, polynesian pitch, Dr. Griggs acknowledged that he and the builder had agreed to the different design. The testimony of Marvin Moran, a general contractor and the superintendent of the job, indicates that on an occasion when he, Reggie Brown and Dr. Griggs were present together on the job site with the construction plans, and were discussing the roof design, at the sheathing stage, Dr. Griggs again acknowledged that he and the Respondent had agreed to the reconfiguration of the roof. This reconfiguration was taken into account in arriving at the final contract price depicted above. While the best practice in the construction industry indicates that an owner and a builder should execute a written change order for such a major alteration of a construction project, it is common practice for such changes to be done by verbal agreement. In any event, the preponderant evidence of record indicates that this change was effected prior to the formal contract involved herein being entered into by the Griggs and the Respondent. Finally, the Respondent did not insure that proper flashing was installed between the rear deck surface and the house. The flashing was necessary, especially since the rear deck level was the same level as the interior floor of the house and was necessary to prevent water from penetrating the house walls at the point where the decking joins the house. Although caulking was used to substitute and was performed with an appropriate material, the mere use of caulking in such an application is not accepted, good building practice and does not comport with appropriate building and contracting standards in the Leon County construction community.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered suspending the Respondent's building contracting license for one year and requiring the Respondent to complete such continuing education courses, in those areas of residential contracting represented by the deficiencies found herein, as the agency deems appropriate. DONE AND ENTERED this 24 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2954 Petitioner's Proposed Findings of Fact 1-17. Accepted. 18. Accepted, except to the extent that the clear and convincing evidence of record does not establish that representations made by the Respondent were fraudulent because it has not been established that he made any misrepresentations knowing at the time that they were made that they were false or that he did not intend to fulfill them. 19-23. Accepted, except that the first sentence of No. 23 is a conclusion of law and not a proposed finding of fact. 24-27. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 31-33. Accepted. 34. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 35-42. Accepted. 43. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 44-57. Accepted. 58. Rejected, as subordinate to the Hearing Officer's finding of fact on this subject matter, in that although the bookshelves were clearly substandard, there has been no proof that the Respondent made any fraudulent misrepresentation as to the quality of materials and construction, but rather differed in his opinion of the quality of the materials and workmanship from the opinion of Dr. Reeves and was negligent in the selection of materials and in the use of them in constructing the shelves. 59-68. Accepted. 69-75. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 78-84. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not supported by clear and convincing evidence of record as to the matter of basement slab thickness itself. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 88-93. Accepted. Accepted, but not in itself materially dispositive of the issue concerning the pitch of the roof. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Heading Officer's findings of fact on this subject matter, and as not, in accordance with the clear and convincing evidence of record, in that it is found above that the owners did consent to the alteration in the roof configuration or design. Accepted. Accepted. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact have all been considered and in some instances, accepted, and in many instances, rejected in the body of this Recommended Order. It is not possible, however, to separately rule on improperly stated proposed findings of fact because the Respondent did not separately state the proposed findings of fact, but rather intertwined them with factual and legal arguments, discussions and recitation of evidence and testimony. Consequently, separate and coherent rulings on individual proposed findings of fact cannot be made. All factual and legal arguements raised in the Respondent's post-hearing pleading styled "Recommended Order" have, however, been considered and weighed in the rendition of this Recommended Order. COPIES FURNISHED: Mr. Daniel O'Brien Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert D. Newell, Jr., Esq. NEWELL & STAHL, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Robert L. Fountain, Jr., Pro Se 2124 Shady Oak Drive Tallahassee, FL 32303
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
Findings Of Fact The Respondent is a certified building contractor, having been issued license number CB C011621 as an individual contractor. The Petitioner is an agency of the State of Florida, having responsibility and authority to license building contractors and to regulate their licensure status and their standards of practice pursuant to Chapter 489, Florida Statutes. Sometime in December, 1979, the Respondent, doing business as Economy Steel Buildings, Inc., entered into a contract with Digital Machine and Tool Company to construct a steel building for that firm. The Respondent subsequently commenced the construction on land owned by Digital Machine and Tool Company and obtained a permit from Seminole County on December 6, 1979, authorizing the installation of a septic tank. On the face of the permit appeared language containing the specification that the "stub-out" or pipe exiting the septic tank be installed 12 inches above the original grade level. The Respondent observed that language on the face of the building permit and knew and understood its import, as his own testimony reveals. The Respondent subsequently subcontracted the installation of the septic tank to a company known as Al's Septic Tanks, which installed the tank and drain field during the early part of February, 1980. On February 10, 1980, an inspector for the Seminole County Health Department, Don Gross, inspected the septic tank installation and informed the subcontractor and the Respondent that it was not in conformance with Section 10D-6.25(2)(e), Florida Administrative Code, in that the subcontractor had not followed the instructions on the face of the building permit (12 inches above grade level), which were designed to satisfy that Administrative Code section. Sometime between February 10, 1980, and the end of April, 1980, the Respondent received a "Notice of Violation" from the Seminole County Health Department regarding the alleged improper installation of the septic tank. The Respondent admitted that sometime soon after installation of the septic tank he became aware that it did not pass the Seminole County Health Department inspection. The Respondent maintained that he made three attempts to contact the Health Department regarding the Notice of Violation during the month of April, 1980, but he introduced no competent, substantial evidence to show what efforts, if any, he made to correct the installation of the septic tank. There were ongoing disputes between Digital Machine and Tool Company, its representative, Galon Lyell, and the Respondent during this period, and on May 21, 1980, the Respondent was told to stay off the premises and perform no further construction on the site. There arose at about this time a civil dispute between the Respondent and Digital Machine and Tool Company which is outside the scope of this proceeding. In any event, the Respondent did not correct the installation of the septic tank and there is no question that the septic tank was not installed with the "stub-out" pipe 12 inches above the original grade level. Digital Machine and Tool Company later obtained a corrected installation of the septic tank so that it would be "stubbed-out 12 inches above original grade" from a different subcontractor, at its own additional expense, in the amount of $855. From the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting under the name of Economy Steel Buildings, Inc. The Respondent admitted that he was fully aware, as of November 19, 1979, that he could not properly perform contracting work under the name, Economy Steel Buildings, Inc., without properly qualifying that company. After a Notice of Violation (Respondent's Exhibit 6) was issued by the Construction Industry Licensing Board through Investigator Hunter, the Respondent was aware that contracting under an unqualified company name was improper. After that Notice of Violation, the Respondent made some attempts to separate his personal contracting business from that of his material supply company, Economy Steel Buildings, Inc. The Respondent, however, accepted payment for contracting and materials from his client, Digital Machine and Tool Company, for the subject project in the name of Economy Steel Buildings, Inc. The Respondent also paid Myron Roseland, a subcontractor, from Economy Steel Buildings, Inc.'s account for work attributable to the Digital Machine and Tool project. Finally, Petitioner's Exhibit 5 establishes that the Respondent attempted to discharge personal liability as a contractor, which attached to him through the Digital Machine and Tool Company project and other projects, by declaring bankruptcy pursuant to Chapter 11 of the Federal Bankruptcy Act as Economy Steel Buildings, Inc., since in that petition he listed numerous subcontractors, including Myron Roseland, who performed work on the Digital Machine and Tool Company job, as creditors of that corporation to be discharged. In summary, during the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting work as Economy Steel Buildings, Inc. During that time period, Economy Steel Buildings, Inc., was not properly qualified or registered with the Construction Industry Licensing Board by the Respondent, who was the owner and sole stockholder of Economy Steel Buildings, Inc.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Petitioner finding the Respondent guilty of the violations alleged in Counts III and IV of the Amended Administrative Complaint and imposing an administrative fine of $1,000. The administrative fine should be suspended in part, provided the Respondent provides proof within sixty (60) days from the date thereof that he has made restitution to Digital Machine and Tool Company for the $855 it had to expend to obtain correction of the improper septic tank installation, as well as restitution of monies owed to Mr. Myron Roseland attributable to the Digital Machine and Tool Company project, in which event the Respondent's fine should be reduced to $250. DONE AND ENTERED this 10th day of February, 1983, at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James R. Lavigne, Esquire 1971 Lee Road Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Charles F. Geisler, was and is a licensed architect in Florida holding license NO. AR 00006750, and the Petitioner, Board of Architecture, is the state agency responsible for regulating the practice of architecture in this state. Respondent has been engaged in the practice of architecture primarily in the design of residential and commercial structures within Sarasota County continuously since 1976. Over the past several years, he has worked on occasion, with Howard T. Bertram, also an architect, with whom he had worked for several years in an architectural firm in Sarasota. During that period, they worked together on several residential projects. Mr. Bertram was not registered as an architect at the time the project in question was designed. Under Florida law and the provisions of Sarasota's building code, any individual, not necessarily an architect, may legitimately prepare plans for a single family residence. Mr. Bertram was contacted by Chester Kuttner, a Chicago real estate developer who also has worked in Florida, to design a single family residence for him on Ringling Point in Sarasota. Because this site is located in a coastal high hazard area, and a V-20 zone, Regulations promulgated by the United States Federal Emergency Management Agency, (FEMA), established certain requirements to include the requirement that a residence to be constructed in the V-20 zone must be designed by a registered architect; must have an elevation no less than 16 feet above sea level; and must be designed and build so as to resist a certain wind velocity. All this was explained to Mr. Kuttner by Mr. Bertram. Nonetheless, Mr. Kuttner desired that Mr. Bertram design his home. Bertram agreed and began the development of the design concept, but once the project reached the point where working and construction drawings were necessary, and the involvement or a registered architect was required, Mr. Bertram proposed to Kuttner that Respondent be employed to work with him to insure that all FEMA and other requirements were met. Mr. Kuttner agreed. Respondent thereafter submitted a set of plans to the Sarasota building office for review as a prerequisite to the issuance of a building permit. The initial set of plans submitted in September was rejected because of the failure of the plan to meet requirements regarding fill, slab, and the elevation of the swimming pool. None of the original objections had any relationship to those areas in issue here. A second set of plans was submitted by Respondent in November, and approved by the city. These plans bore his seal as architect, and it was his responsibility to determine whether the plans were in compliance with FEMA and State requirements. Though the city officials reviewed the plans, they did not do a complete structural analysis to see if the plans complied with FEMA structural requirements. The plans did, however, comply with local elevation and zoning requirements. According to Mr. Hewes, the building official, the house involved here is similar to many built in coastal areas. It is an elevated house with the bottom portion open, and the living quarters up and over the open parking area below. Because of FEMA criteria, the lower level could not be used for habitation at this location. Respondent admits to sealing both the original and modified plans for the Kuttner house. With regard to the original plans, he prepared sheets 5-1 and 5-2, the structural plans, but merely reviewed sheets 1 - 7 which had previously been prepared by Mr. Bertram. In that regard, Respondent and Bertram went over the plans together and discussed them, and in light of their review, the matter seemed to be appropriate to Respondent who, admittedly, did no calculations. As to the second set of plans, again Respondent drafted sheets 5-1 and 5-2, dealing with the structure, which he revised from the September plans to meet the changed conditions. This applies to the other pages as well, which he checked only as to the required changes. Respondent knew these plans were to be used to get a building permit, and he was aware that the building was to be constructed in a V-20 zone, with an elevation of 16 feet. The original plan for the Kuttner home called for the use of fill to support a concrete slab which would form the floor of the upper habitation area. When, after consultation with governmental authorities, it was decided to remove the fill, Respondent recognized he had to redesign the structure as a wooden frame with truss joists. The use of pilings, as called for in the original plan, remained as a part of the second set. The structure was built as planned. Respondent was present when the piles were driven to insure they were put in the right place; he was on the scene when the steel beams were put in; and came out again to solve a problem regarding plumbing vents and air conditioning ducts. He indicates there was an upgrade in the steel beam size in the floor beam supporting the master bedroom area as a matter of economic convenience to the supplier. These larger beams were installed at no additional cost as was an additional roof beam. "Detail" drawings were provided in some areas, especially the footing areas, (detail A on S-I; detail B on S-1; and base plate and anchor bolt on S-2; and frame sections on S-2). There were no details as to stair framing. Wall sections are detailed in the first 7 sheets, and details of the roof tiedowns are show there as well. Respondent provided for lateral wind loads through a device which called for this load to be transferred to the outer walls. Petitioner's expert claims this was improperly done. The plans do not show plumbing details, but there is no requirement for plumbing details to be shown in single family residence drawings. The drawings must show the location of the structure on the property foundation, floor plans, elevations, and a typical wall section. Requirements in the electrical area include only the locations of outlets and switches. Respondent admits to being compensated by Mr. Kuttner for the services rendered in the design and construction of the building. The comment appearing on the first page of the plans regarding the seal being applied at no charge as a political statement was made as a result of the Respondent's philosophical disagreement with the short-lived Florida sales tax on services. He claims his comment was true: that no charge was imposed for the placement of the seal, but he readily admits he was compensated for his architectural services. This seal comment apparently prompted inquiry by the Board and colored the thinking of several Board witnesses who believed Respondent "sold" his seal to an unlicensed architect. This is not true, however. Respondent performed bona fide architectural services and his seal was properly utilized. Mr. Bertram, who at the time he designed the Kuttner residence, was not registered as an architect in Florida, received his license in January, 1988. His participation in the Kuttner project included development of the design concept, and the accomplishment of the working drawings on which he brought in Respondent as a licensed architect to work with him on the FEMA zone portions. According to Mr. Bertram, he and Respondent met many times on the project. Mr. Bertram's testimony fundamentally supports and confirms in major detail that of the Respondent. He points out that the residence as ultimately constructed, was little changed from the concept design on the September plans. The major difference was the removal of fill and the structural concrete slab as a base for the living area portion of the house, and the substitution of truss joists therefor. What is incontrovertible is that the house, as designed by Bertram and the Respondent, is still on the site where it was constructed, and is occupied by the original owner who is quite satisfied with it. According to both Bertram and Mr. Kuttner, no material changes have been made since it was completed. The project was not, however, so well thought of by Mr. Philip V. Scalera, an architect licensed in both Florida and Georgia, and a consultant for the Board, whose primary architectural practice deals with commercial structures. He does, however, have some experience in residential design, and in his opinion, the subject building, multistory in design and constructed of steel beams on pilings is no different, structurally, from a commercial building. Mr. Scalera, at the request of the Board, reviewed the drawings encompassed in both sets of plans submitted to the Sarasota building office. According to the plans, the structure was to be a wood frame structure above a slab. The first set of drawings indicated the property was to be a conventional slab on grade construction. The structural drawings show no location or information, however, concerning the pilings, and in Mr. Scalera's opinion, it would not be easy to understand the type, location, or load bearing capability of the pilings based on these drawings. He feels this type of structure should be designed for uplift and load bearing. In his opinion, therefore, the first set of drawings regarding the foundation are inadequate. However, the first set of plans were withdrawn and not utilized by the contractor for the construction of the project. It is noted, however, that the first and second set of plans are quite similar, and in that regard, Mr. Scalera points out, as to the second set, his comments regarding the foundation support are not changed. In his opinion, there is insufficient information provided as to the capability of the piling. Other defects found by Mr. Scalera in the second set of plans included: The "details" for retaining walls were non existent. Mr. Scalera feels that in this case, such details were required due to the critical nature of the walls, which included the support and retention of the structure. The "details" for the superstructure were inadequate. The "columns to footage anchorage" are critical and must be evaluated. This can be done only through the use of "details." Here, there is only one "detail" with no calculations by engineers shown and, in Scalera's opinion, this is insufficient. The "detail" regarding the "moment connection", drag bracing, or a means to prevent distortion of the structure by horizontal wind force is absent. There is a "diaphragm" method which can be used for this which is a panel to absorb pressure, and an outer wall, (shear wall). Here, however, no shear wall is shown. Only a glass wall is indicated and glass walls are not capable of resisting lateral wind pressure. On a steel building, with a steel frame, as here, steel or masonry would have been the natural material to resist the wind force, and there is no indication that this is provided. The "details" for stair landings and wall sections are needed but not provided. S-1 on the second set of plans shows joists which bear on the beam which has no support. S-2 shows a stair opening, but the detailing contained in the drawings does not show sufficient detail to allow reviewing officials to oversee construction. The "tie-down" anchors the roof joist to the wall plate and is used to prevent the wind from lifting the roof off the structure. The instant plans call for an overhang of 9 feet, and the uplift force for such an overhang is such as would cause the hurricane clips called for in Respondent's plans to fail. Scalera believes that the fact that the house is still standing means nothing. The design should be sufficient to meet the requirements of an unusual occurrence, in this case, a 50 to 100 year hurricane, and since the construction of this residence, no such winds have been experienced. The lateral bracing used by Respondent is insufficient. The only lateral bracing called for in this plan is made of plywood sheeting on one side. More detail should be shown, with specifications which were absent. Floor beams were, in the opinion of Mr. Scalera, inadequate in size. The glass type, thickness, and means of support called for in the plans are not detailed. In the absence of appropriate detail, neither Mr. Scalera nor the building officials would be able to determine whether the plans came up to standards. The plans do not appear to comply with the requirements for buildings in a V-20 zone, (16 feet elevation), in that: They are on compacted fill contra to the code, (changed in the second plans) The sewage and waste water control is not designed through the use of plumbing drawings, and The structural integrity of the building appears to be beyond the architect's responsibility area. Many structural designs for moment connections and joints are improper or uncalculated. In Scalera's opinion,; these designs should have been done by an engineer, not an architect. Turning to the second, (November) set of plans, Mr. Scalera also believes these are not of a sufficiently high standard to inform the user properly. The documents do not clearly and accurately identify the design of all segments to which they relate. The drawings have lent themselves to a lack of continuity. The plans appear to be detrimental to the client because the project, based on these plans, could not be bid accurately and the actual cost would exceed competitive bidding by a large margin. They are also detrimental to the public at large because the building has the definite potential for failure under stress conditions. Taken together, in Mr. Scalera's opinion, the Respondent has not conformed to the standards for the practice of architecture in Florida, and has been negligent. He believes the structural components are not incidental to the plans but are of paramount importance, and, in his opinion, Respondent was not competent to design the structural components used herein. Mr. Geisler and Mr. Bertram both pointed out that they had worked with the contractor selected to build the structure in issue here and he was familiar with their way of doing things which would lead to a better job even if not all detail was contained in the plans. Mr. Scalera discounts that contention, stating that the fact that the architect had worked with a particular contractor previously would not justify his putting less detail in his plans than would be required in plans to be used by a contractor not familiar with the architect. This is accepted and so found. Many of Mr. Scalera's conclusions were supported by the testimony of Mr. Power, a licensed structural engineer, who described the Kuttner residence as "a very unusual steel skeleton and wood constructed building." Mr. Power examined the property and the drawings and found the latter to be inadequate to make an evaluation of the superstructure. Nonetheless, he felt the plans were inadequate for several reasons. In less detail than that utilized by Mr. Scalera, he opined that: The details of the superstructure as to wind loads were inadequate. The column to footing anchorage details were less than as he would wish, but he was unable to form an opinion as to whether they were adequate. He did point out, however, that there were no details available on those areas of the project related to resistance to lateral wind loads, and those details are required because wind exerts pressure in the form of lift on the top of the roof; uplift on the bottom of the roof; uplift from under the building; and pressure on the windward side of the building as well as suction on the leeward side. Mr. Power points out that the requirements applicable here indicate that the design must provide for the structure to sustain a 10 foot wall of water driven by 110 mile per hour winds, as well as the impact of the wave and debris pileup on the pilings. Mr. Power also points out that one way of resisting wind load is through duplication, and in his opinion, the detail as to that in these plans is insufficient. With regard to the tie downs, designed to hold the roof to the structure, the detail provided calls for a particular type of commercially produced joinder. Power's calculations indicate that the type of joinder called for in the plans is inadequate in that the clip called for is inadequate to hold the roof under the conditions possible. Another of Mr. Power's concerns deals with the indications for lateral bracing on the outside wall of the mezzanine floor, where he felt the bracing was inadequate, and the failure to provide specifications for such is a defect. Mr. Power also reviewed the plans in regard to the adequacy of the floor beams, and concluded that the floor beam on line 2 from grid line B to D was inadequate under dead and live gravity loads. The beams themselves are not properly braced, and appear grossly inadequate when subjected to lateral wind load. Further, the beam on line B, from 2 to 4, at elevation 26' 3 3/4", and the beam on line B from 6 to 8 at elevation 30" 3 3/4", are inadequate because the are adjacent to openings in the floor. Mr. Power concluded that the plans do not comply with the FEMA requirements for a zone V-20 location because they fail to provide the required safety called for in the building codes. The steel columns which are 6 x 9 would be insufficient even if details for the moment connection were provided, and they were not. The provision of the other beam, which is much stronger, as was claimed by Mr. Geisler in his testimony, would make it safer. Nonetheless, he believes the design in these plans, as they relate to beams and columns, would be inadequate to withstand the code specified wind loads in either direction. In substance, Mr. Power is of the opinion that Respondent's initial and revised plans here are not of sufficiently high standard to inform the users of the requirements intended; they do not clearly and accurately indicate the design of all essential parts of the work to which they refer; and, as drawn, may well be detrimental to the client and the public at large. According to Mr. Power, when the Respondent signed and sealed these plans, he assumed responsibilities for them as submitted, and could not rely on any supplier or contractor to make changes which would rectify an otherwise unacceptable situation. Here, Mr. Power believes that the standard of practice, as it relates to structural design only, as contained in the plans in issue, was not met by the Respondent. Admittedly, this analysis is based upon review of the plans only, and if he could see the specifics of the project, it might change his opinion on the adequacy and safety of the superstructure. It would, however, not change his opinion as to the adequacy of the plans. Respondent points out that his plans had a note requiring shop drawings and the steel joist and concrete reinforcing people submitted them. They were reviewed by Respondent and he feels that they complied with his instructions and with the standards of the practice in Florida. Mr. Power admits that shop drawings are very common and almost all buildings are built through the use of these drawings in addition to the architect's plans. Shop drawings are used to establish dimensions so that prefabricated elements can be constructed, and to indicate to the designer that what is on his drawings was understood. Shop drawings do not bear the seal of the professional, and it must not be overlooked or forgotten that the responsibility in architecture lies with the architect's seal, not the shop drawings. In Mr. Power's opinion, what the Respondent accomplished here was not at all consistent with what Power has seen as acceptable practice in the profession. In defense of his plans, Respondent pointed out that he has designed several properties for FEMA locations in Florida in both the V zone and the A zone. He has worked with structural steel components on at least two occasions, and in his opinion, his design of the superstructure on the Kuttner house complied with FEMA requirements. Respondent also claims his plans provided for column to footage anchorage at S-2. All steel joists were to be fully welded to develop maximum moment resistance and to create a rigid frame. The plywall insert panels were designed to carry a wind load sufficient to resist deformation in their plane, and the floor joists were designed to resist wind deformation in the horizontal plane. According to Respondent, an expert in soils analysis did borings of the soil on the site and recommended the type and size of the footings, and here, Respondent called for the use of a 12 inch instead of a 10 inch piling. Both the Respondent and Mr. Kuttner are of the opinion that the complaint in this case was initiated by one of Mr. Kuttner's neighbors, an architect himself, who wanted to design the Kuttner residence. When Kuttner refused, this neighbor allegedly took umbrage and resisted the project down the line. When Respondent designed the superstructure, he claims to have considered the wind effect as outlined by Mr. Power, but did not specify the thickness of glass to be used since it was not required. Where the plans call for welding steel joints at S-2, this appears to conform to AISE standard practice. The plywood walls were to serve as a diaphragm to counter wind effect. The framing and connections for those is found in the plans at PA-4. Bolts at 48 inches on center at the bottom plane are called for with studdings to be tied in there and plywood attached in accordance with the undetailed standard nailing pattern set out in the building code and known to all certified contractors. He admits that his plans did not specify a nailing pattern at the truss joinders, but he claims they did not have to. This is not necessarily so if the plywood is being used to address lateral wind load. Admitting that the requirements for nailing patterns is incorporated into the building code which governs all construction and compliance with the code is required by all contractors, Mr. Power nonetheless feels that the nailing pattern is dependent upon the load to be supported and that determination should not be left up to the contractor, but should be specified by the architect in the plans. This would seem to be a logical and supportable position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that by Final Order of the Board of Architecture, the Respondent, Charles F. Geisler, be reprimanded, be assessed a total administrative fine of $1,000.00, and be placed on probation for a period of two years under such terms and conditions as may be prescribed by the Board. RECOMMENDED this 14th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Aministrative 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 14th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6934 The following constitutes my specific rulings pursuant to S. 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. & 4. Accepted and incorporated herein. Accepted and, as appropriate, incorporated herein. Accepted and incorporated herein. -11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.-15. Accepted and incorporated herein. 16. Accepted as it states Mr. Bertram prepared all with the Exception of S-1 and S-2, but rejected as it implies Respondent did not work on the other with Bertram or assume responsibility for his work. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8.- 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected in that the first plans did not comply with stated requirements. Accepted as to Respondent's contentions without conceding the detail, specifications, and requirements were adequate. Rejected. Scalera's objections went to the professional quality of Respondent's work. As an expert, his testimony is accorded same weight. Irrelevant. & 20. Accepted. Accepted. Finding for Respondent on this point. Not a Finding of Fact but merely a statement of the allegation. Respondent's courses in the area of structural engineering appear to be no more than a normal architectural student takes. This issue was resolved against the Respondent. Accepted but not controlling in light of the evidence on the effectiveness and weight of shop drawings. Accepted but irrelevant to the issue of quality of quality of performance. See 22. Rejected. Accepted and treated herein. Rejected. 30.- 33. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 S. Sterling Street, Suite 201 Tampa, Florida 33609 Stanley Marabel, Esquire 1800 Second Street, Suite 715 Sarasota, Florida 34236 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Board of Architecture 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
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
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
