The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
Findings Of Fact Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND: That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence. RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J New Smyrna Beach, Florida 32069 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 76-784 PETER C. SWEBELIUS, SR. CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069, Respondent. /
Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
Findings Of Fact At all times material hereto, respondent was licensed as a registered building contractor having been issued license number RB 00034797 by the State of Florida (see Petitioner's Exhibit 1). On or about January 11, 1982, respondent entered into a contract with Emil and Agnes Gerlt to construct a residence to be located at Singletary Road in Sarasota, Florida. The contract price was $57,420. The home construction agreement was to be part of a trade agreement between the contractor, the respondent, and the Gerlts. Under the terms of the trade agreement, respondent was to receive the Gerlts' existing home, located at 3376 South Seclusion Drive, Sarasota, Florida, in trade for constructing the Gerlts' home. The home was to be completed within one hundred fifty (150) days (see petitioner's Exhibit 6 and Transcript, page 105). By an addendum to the Home Construction Agreement executed by respondent and the Gerlts, the parties to the agreement further agreed that the contract price, $57,420.00, was to be paid as follows: $ 5,742.00 or 10 percent as a down payment $ 5,742.00 or 10 percent when slab is poured $ 8,613.00 or 15 percent when walls are up $14,355.00 or 25 percent when sub roof is on $14,355.00 or 25 percent when drywall is completed $ 8,613.00 or 15 percent when building is completed (see petitioner's Exhibit 6). Emil and Agnes Gerlt had contacted the respondent about construction of a new home through a newspaper ad placed in the Sarasota Herald Tribune. In the ad, respondent had offered to build residences in exchange for the purchaser's existing home. At the time, the Gerlts had been attempting to sell their existing home for some time without success. Mr. Gerlt's health required the relocation from the Gerlts' existing home, a multilevel home, to a single story home. After the Gerlts discussed their requirements with the respondent, a contract was drawn up by the respondent. The Gerlts submitted the contract to their attorney, Robert Johnson, and upon obtaining Johnson's approval, signed the Home Construction Agreement noted above. (See Transcript, pages 28-29). In or about February, 1982, Emil and Agnes Gerlt entered into a trade agreement with respondent to transfer the Gerlts' Seclusion Drive residence to Green. The agreement was subject to the construction, by respondent, of the Gerlts' new home on Singletary Road, in Sarasota County, Florida. As part of the agreement, respondent was to actively seek to sell the Seclusion Drive property. The first $70,000 received from the sale of that property was to go to the Gerlts. Respondent was to receive a 6 percent commission. Any amounts remaining were to go to the Gerlts. If respondent was unable to sell the Seclusion Drive property prior to June 30, 1982, or the date of occupancy for the Singletary Road residence, whichever occurred first, the Seclusion Drive property was to be the sole property of respondent subject to payment in the amount of $70,000 to the Gerlts. (See respondent's Exhibit 1). After the Gerlts and respondent signed the above described agreement, M. Daniel Poling, Nancy Poling and Ethel E. Weathers (Mrs. Poling's mother), came by the Seclusion Drive property, without an appointment, and asked if they could see the residence. Mrs. Gerlt showed the Polings and Weathers the home and then referred them to respondent as the person handling the sale of the home. (See Transcript, pages 37-38). After the Polings and Weathers contacted respondent, respondent drew up a Contract for Sale of Real Estate, dated February 4, 1982, whereby Ethel Weathers was to sell her residence to the Gerlts for the sum of $54,000. At this point a three-way trade was anticipated between the parties. The Gerlts would obtain Weathers' property as well as an additional cash payment in exchange for their own property which would be transferred to the Polings and Weathers. Then the Polings and Weathers' residence, located at Bouganvillea Street, in Sarasota, Florida, would take the place of the Seclusion Drive property in the transaction for construction of a new home between the Gerlts and respondent. The Contract for Sale of Real Estate, dated February 4, 1982, was never fully executed, because Robert Johnson, the Gerlts' attorney, did not approve the agreement. (See petitioner's Exhibit 10 and Transcript pages 109- 110). Subsequent to the time the February 4, 1982 Contract for Sale of Real Estate was prepared, Robert Johnson, as the Gerlts' attorney, prepared another Contract for Sale of Real Estate which was fully executed by the parties. The contract provided that the Gerlts would sell their Seclusion Drive property to the Polings and Weathers for the sum of $84,000. As a special condition of the contract the Polings and Weathers were to execute a Mortgage and Promissory Note in the sum of $42,000, at 15 percent per annum, on Weathers' residence located on Bougainvillea Street, Sarasota, Florida, in favor of the respondent and the Gerlts. In the event that the Mortgage and Promissory Note was not paid off by April 17, 1982, the Polings and Weathers would deed their Bougainvillea property to Green and the Gerlts as a $42,000 credit on the contract. (See petitioner's Exhibit 8). The contract described immediately above further provided that the closing should-occur on the entire transaction on April 17, 1982. However, the Polings and Weathers would remain in the Bougainvillea residence, and the Gerlts would remain in the Seclusion Drive residence until ten days after the respondent obtained a certificate of occupancy for the construction being performed on the Gerlts' Singletary Road residence. Upon completion of the Singletary Road residence the Gerlts were to either assign their interest in the mortgage or quit claim their interest in the Bougainvillea residence to James A. Green. (See petitioner's Exhibit 8). As compensation for his services in the transfer, Green received a transfer fee in the amount of $5,000. (See petitioner's Exhibit 9). On or about March 22, 1982, respondent applied for and obtained a building permit from the Sarasota County, Florida Building and Construction Department for the construction of the Gerlts' new residence at 16700 Singletary Road, in Sarasota County, Florida. (See petitioner's Exhibit 5). In April, 1982, respondent began to perform work on the Gerlts' new home. (See Transcript, page 47). On May 21, 1982, the Gerlts executed an Adjustable Mortgage Loan Note in the amount of $42,000 plus interest, at the rate of 15.75 percent per annum, in favor of Amerifirst Federal Savings and Loan Association. The mortgage was secured by the property located at 2304 Bougainvillea Street. The proceeds of the loan were to be used to pay for the construction of the Gerlts' new home. Under the terms of the original agreement between respondent and the Gerlts, dated February 1982, respondent was to pay all costs related to the financing of construction and he was to hold the Gerlts harmless from said construction mortgage and payments due thereon until the contract was fully completed. (See petitioner's Exhibits 4 and 8, respondent's Exhibit 1 and Transcript pages 48 and testimony of Robert Johnson). Although respondent made one payment of $1,669.02, on October 22, 1982, that check was dishonored and respondent made no further payments on the mortgage for the Bougainvillea property held by Amerifirst Savings and Loan Association. Under the terms of the Adjustable Mortgage Loan Note executed by the Gerlts, mortgage payments were to be made in monthly payments of $556.34 each. (See petitioner's Exhibit 4). Between approximately June 4, 1982 and December, 1982, respondent received the following payments from the Gerlts totaling $33,912: DATE AMOUNT June 4, 1982 $11,484 June 22, 1982 $ 8,613 June 23, 1982 $14,355 Unknown $14,355 (see petitioner's Exhibit 13 and Exhibit 12 and testimony of Johnson) In addition to the amounts noted above, respondent received payment for the following changes or "extras" in construction of the Gerlts' home: DATE AMOUNT WORK PERFORMED June 4, 1982 $ 250.00 Rough-in shower in workroom June 4, 1982 $2,250.00 Complete Porch Sept.3, 1982 $ 98.75 Change kitchen window from awning to slider Sept.3, 1982 $ 35.00 Change present kitchen window TOTAL $2,633.75 In addition to the changes or "extras" in construction noted above, respondent was to perform the following changes or "extras" in construction of the Gerlts home: The front porch area was removed making the front of the house straight across at no extra cost. The cabinets in the kitchen were changed. One set of cabinets and a countertop was changed to eighteen inches and another set was changed to twenty-four inches. There was also a change in the placement of the refrigerator. The Gerlts were to pay for this change. Completion of the shower in the workroom, at owner's expense. The family room was enlarged by two feet six inches resulting in two additional sheets of paneling, at owner's cost. There was an increased amount of tile in the guest bath area resulting in an additional cost of $18.00. The owners selected a more expensive tile for the master bathroom than specified in the contract specifications. The Gerlts were to pay Green $30-$40 to install the more expensive tile. The contractor was no longer obligated to furnish or install the floor covering or carpet. Therefore, the owner was to receive a $3,450 credit on the contract price. (See petitioner's Exhibit 26 and Transcript, pages 59 and 95-98). In approximately August 1982, a dispute arose between the Gerlts and respondent over the extras on the Gerlts new residence. The disputed items included the cost of renting an electric generator for one month, at a cost of $366.30. The Gerlts did not want to pay the rental fee because they had intended to furnish a generator for the project. At the time, Mr. Gerlt worked for a person who owned a distributorship and could easily have obtained a generator for the project. (See Transcript, page 92 and petitioner's Exhibit 21). Respondent asserted that there was a change in the fireplace which resulted in an increased cost on the Gerlts' project. From the beginning, both the Gerlts and the respondent had agreed that the fireplace was supposed to be placed directly on the slab. On March 18, 1982, the Gerlts sent respondent a letter confirming this fact. The respondent constructed the fireplace on a raised hearth and then attempted to charge the Gerlts for the cost of returning the hearth to its original position. (See Transcript, pages 61 and 98). On or about August 10, 1982, Overhead Door Company of Sarasota furnished two garage doors which were used in construction of the Gerlts' Singletary Road residence. The doors were furnished pursuant to an agreement with the respondent. Under the terms of his agreement with Overhead Door Company of Sarasota, respondent was to pay for the doors within thirty days of the invoice date. Inasmuch as respondent failed to timely pay for the doors, Overhead Door Company of Sarasota filed a Claim of Lien in the amount of $514.50 against the Gerlts' property. (See petitioner's Exhibits 17, 13, and 19, and Transcript, pages 76-82 and 132) The dispute between the Gerlts and Green brought work to almost a completed halt. After the receipt of the $14,355 payment due upon completion of the drywall, respondent did little work on the project. Eventually, Green hired an attorney, Frank Calabrese, to represent him in the dispute. On September 2, 1982, the parties and their attorneys met at the job site in an attempt to resolve the dispute. As a result of that meeting, the parties verbally agreed to the items which were changes or extras. The only items designated as changes resulting in an additional cost, to be borne by the Gerlts, were the shower in the workroom, cabinet changes, the additional paneling in the family room, and the changes in amount and quality of tile used in both the guest and master bathrooms. (See petitioner's Exhibit 26 and testimony of Johnson). Nothing was done on the project, despite the agreements of the Gerlts and respondent made on September 2, 1902. Although respondent had agreed to make certain corrections in the home, he did not do so. Finally, at this time the Gerlts discovered that respondent had made no payments on the Amerifirst Savings and Loan mortgage. Therefore, Robert Johnson wrote a letter to respondent's attorney, Calabrese, in attempt to obtain some satisfaction of the problems aforementioned. (See Transcript pages 116-117, 122 and petitioner's Exhibit Number 23). On September 20, 1982, the respondent wrote a letter to Robert Johnson wherein he stated that it was impossible to complete the Gerlts' home until two problems were resolved. Specifically, respondent wanted some written resolution of the amounts to be paid by the Gerlts for extra tile and the extra kitchen cabinets. Respondent further stated, falsely, that Interior Installation, from whom the original cabinets had been ordered, refused to build the cabinets because Mrs. Gerlt had threatened to sue the owner of Interior Installation. Respondent also asserted that the contract between the Gerlts and respondent was breached when the Gerlts refused to pay for the generator on the job. Finally, respondent said that the owners had requested additional outlets which had been installed, but for which the electrician had not been paid. (See petitioners Exhibit 24). In response to this letter from Green, Johnson drafted a letter to Calabrese, on October 4, 1982, on behalf of the Gerlts. By the letter, Johnson agreed to hold the extra amount owing because of changes in amount and quality of tile used on the Gerlts' home until completion of the job, at which time respondent would receive payment. Johnson denied categorically respondent's statements about Interior Installations. Interior Installations agreed to do the work if payment was made in advance. The Gerlts agreed to pay Interior Installations the cost of the cabinet changes. Finally, Johnson indicated that the generator problem could be dealt with in the final resolution of the contract. (See petitioner's Exhibit 25). At this time, respondent already had one other project where respondent had failed to pay Interior Installations for work performed. At the time, he was sixty days late in payment for that project. Inasmuch as Interior Installations was also aware of the conflict between the owners and contractor, they requested full payment prior to beginning the work. They did not receive payment and, therefore, did not do the work. There was no evidence that the Gerlts had threatened to sue the company. Subsequent to this time, a judgment was obtained against respondent for the full amount owing on the other project. (See Transcript, pages 84). On October 14, 1982, respondent talked with Robert Johnson and told him that respondent would order the cabinet work on October 14, 1982, and that the work would be done within two weeks. Respondent told Johnson that he would deliver the Gerlts' house for occupancy by November 4, 1982. Respondent also agreed to attend to the deficit with the Amerifirst Federal Savings and Loan Association Mortgage by October 15, 1982. (See petitioner's Exhibit 27 and Transcript, page 22). Despite his assurances, respondent did not complete those items which he told Johnson he would complete. Respondent did make one payment, by check dated October 18, 1982, to Amerifirst Savings and Loan Association of $1,669.02. However, the check was returned marked "insufficient funds". (See petitioner's Exhibit 4 and Transcript, pages 122-123). On October 28, 1982, Johnson again talked with the respondent. The respondent told Johnson that the paneling in the family room was supposed to be done that day. Respondent also told Johnson that the tile person was supposed to be at the job site that day. Respondent said that Amerifirst Federal Savings and Loan would be paid $1,660. Respondent further stated that he had hired R & M Cabinets to do the cabinetry work on the Gerlts' home. (See Transcript, page 124). Again respondent's promises were not fulfilled. Furthermore, when Johnson called R & M. Cabinets about the cabinetry work on the Gerlts' home, the company requested payment in advance before the work was performed. (See Transcript, page 124). On November 1, 1982, Johnson again spoke to Green about the construction of the Gerlts' residence. Respondent told Johnson that he would have to hire another bricklayer immediately and that the job would be finished by the following Wednesday. (See Transcript, page 124). Again the respondent did not do what he told Johnson he would do on the Gerlts' home. (See Transcript, page 124). On November 24, 1982, the Pollings and Weathers served an eviction notice on the Gerlts, who still resided in their Seclusion Drive residence. Although the Polings and Weathers had agreed to stay in their Bougainvillea residence until 10 days after a certificate of occupancy was issued on the Gerlts' new home, and to allow the Gerlts to remain in their Seclusion Drive residence until the same date, this was with the understanding that the Gerlts' new home would be finished by July, 1982. (See Transcript, page 125 and testimony of Mrs. Gerlt). After the Gerlts received the eviction notice, they contacted Robert Johnson who, in turn, contacted the respondent. According to respondent, the bathroom and the kitchen cabinets were ordered and would be installed by December 8, 1982. By December 10, 1982, the plumbing, air conditioning and cabinetry would be finished. Finally, respondent told Johnson that a certificate of occupancy would be issued by December 15, 1982 for the Gerlts' home. (See Transcript, page 126). On December 8, 1982, respondent told Johnson that the cabinetry in the Gerlts' home would be done by the following Wednesday. Again, however, the respondent failed to perform as promised. (See Transcript, page 127). Although attempts were made to delay eviction, the Gerlts were evicted from their home on December 16, 1982. (See testimony of Mrs. Gerlt). On December 17, 1982, Johnson wrote respondent a letter telling him to finish the Gerlts' home or to be prepared to deliver a cashiers' check. (See Transcript, page 127). On or about December 17, 1982, Generation Electric, Inc., filed a "Claim of Lien" against the Gerlts' Singletary Road property for electrical wiring performed on that residence between June 16, 1982 and December 14, 1982, pursuant to an agreement with the respondent. The Claim of Lien was for the sum of $852.50. (See petitioner's Exhibit 16). Respondent performed no further work on the Gerlts' home. Respondent furnished no notice to the Gerlts or their attorney of his intent to stop work on the Gerlts' home. (See testimony of the Gerlts and Johnson). The Gerlts assumed the completion of the construction project on or about January 14, 1983. At the time respondent ceased work on the Gerlts' home, the construction was only a little over 50 percent completed. The kitchen was not begun; the bathrooms were not begun, with the exception of one bathtub in one bathroom; there was no septic tank; and there was no heat or air conditioning installed in the Gerlts' home. (See Transcript, pages 23-24, 55 and 102). It cost the Gerlts approximately $10,611.60 in labor and materials to complete their home. Mr. Gerlt performed most of the actual work himself. (See Transcript, pages 63-64). At the time respondent ceased work on the Gerlts' property, the mortgage on the Bougainvillea property was in default. Respondent had made no payments on that mortgage even though payments were past due. The Gerlts had to satisfy the mortgage on the Bougainvillea property. (See petitioner's Exhibit 4 and testimony of Mrs. Gerlt).
Recommendation Based on the foregoing findings of Fact and Conclusions of Law, it is recommended that respondent's registered building contractor's license be suspended for a period of three (3) years. RECOMMENDED this 31st day of August, 1984 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1984 COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James A. Green 624 47th Street West Palmetto, Florida 33561 James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1982.
The Issue There are two issues presented by Petitioner, as follows: Was the bid of Intervenor, BDC Deland Ltd., responsive? Was the Respondent, the Department of Health and Rehabilitative Services (HRS), decision to award the bid in this case arbitrary and capricious?
Findings Of Fact HRS issued an invitation to bid (ITB) competitively for Lease No. 590:2438 for approximately 17,568 square feet of office space in Deland, Florida. A three percent variance in the amount of space offered was permitted. The ITB required that all bidders attend a pre-proposal conference because valuable information and explanations would be provided to interest bidders at the conference which were to be complied with by the bidder. Paris and Procacci attended. The requirements included providing 140 assigned (reserved) parking spaces by the bidder for the office's use. See Bid Submittal Form, Page 9 of 25. The requirements contained two provisions directly relating to parking requirements, Paragraphs 11d and 21, and one which is tangentially related concerning compliance with zoning, Paragraph 6. Paragraph 11d provides as follows: Section 11: As part of the bid submittal, bidder are to provide: * * * (d) A scaled site layout showing present location of building(s), location, config- urations and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department an lessor to meet the needs of the Department. (Emphasis supplied.) Paragraph 21 provides as follows: Section 21: Parking: For this facility the Department has determined that a minimum of 140 parking spaces are required to meet its needs. This parking is to be under the control of the bidder, off street, suitably paved and lined. This parking is to be provided as part of the lease cost to the Department. Lessor will grant to the lessee an exclusive right to use 140 parking spaces. Lessor shall submit with this bid submittal a letter certifying that the lessor agrees to the requested number of parking spaces on site, states the number of parking spaces per square foot of space as required by the local zoning jurisdiction and provides a site plan of the parking lot identifying the number of parking spaces assigned to specific other tenants. The purpose of this submittal is to assure parking spaces conform to local jurisdiction requirements of number and size, and that the number of parking spaces requested in this invitation can be achieved without infringing on or combining with the parking requirement of other tenants. (Emphasis supplied.) * * * Bidder Response: Parking Being Bid Exclusive spaces available on site. See attached site plan. Non-exclusive spaces available on site. Exclusive spaces off site located from the proposed facility (Distance) Bidder must provide recent evidence of control of all parking spaces being proposed. Permis- sion to park is not control. The provisions of Section 21 were included in the lease because HRS had previously had bad experiences with parking availability. Parking, as evidenced by the requirement for a site plan and certificate to be submitted with the proposal, was an important and material provision of the lease. Both Paris and Procacci submitted bid proposals, including site plans, which were deemed responsive by HRS. HRS considered the proposals of both Paris and Procacci, and performed site visits to both properties. In addition, the evaluators were familiar with both properties. Paris's bid was evaluated to be the lowest and best bid, and HRS noticed the bidders of its intent to award the bid to Paris. At that point, Procacci asserted to HRS that Paris' proposal was deficient because it did not meet the parking requirements in terms of the quantity of parking spaces Paris could provide based upon its submittal because of the zoning requirements and impact of the "out parcels" indicated on the site plan which had been submitted. After being contacted by Procacci, HRS inquired of Paris, pursuant to the terms of the RFP, if it was sure it could provide the parking as required and comply with local zoning. HRS also inquired about the status of the out parcels. Paris advised that, although it had intended to try and develop the areas marked as out parcels, it did not have contracts to develop these areas, and that Paris understood that it could provide the number of parking spaces required to HRS and current and future tenants within the local zoning provisions. HRS, through its counsel, checked with the local zoning official, and was advised that Paris had enough space on site to provide parking spaces complying with local codes for HRS, current tenants, and future tenants. The zoning official's estimates were based upon general assumptions about the nature of the future tenants which affected the space required for parking; however, these assumptions were generally consistent with Paris' development plan. HRS was also advised that in developing the out parcels, Paris would have to comply with existing codes including the provisions for parking. Paris was the owner in fee simple of the site upon which the proposed leasehold and parking lot were located. At the time the bid was submitted, the property contained 168,000 gross square feet of leasable space, of which, 66,000 gross square feet were leased to Belk Lindsey, Dollar General, Community Dialysis, a coin laundry, the DeMarsh Theatre, and the Department of Labor. The property had vacant 101,000 gross square feet of which 18,005 gross square feet were being offered to HRS. The existing leases included governmental uses, commercial uses, medical uses, and a theater. The total area of medical uses is limited to medical clinic and the Dialysis Center which had 5,184 square feet. (Only the portion of the Health Department which is clinic is treated as medical office space, and the remainder is treated as governmental use. See Volume IV, Page 568, line 4. The larger figure (5,184) for the clinic's area stated in Petitioner's Exhibit 9 is utilized for the volume of the clinic instead of Paris' figure of 4,200 square feet.) The total area of governmental uses is 71,336 square feet and includes the Department of Labor (5,000), HRS (18,000), Volusia County Environmental Health (22,277), and Volusia County Health Department (26,059). The total area of commercial uses is 49,016 square feet including Belks (41,490) and Dollar General (7,526). There was a total of 31,624 square feet vacant which Paris planned to lease for government offices. Under city code, the net square area was divided by a factor to arrive at the required parking for each type of use. The factor for the various uses are as follows: Governmental-200 square feet; Commercial-250 square feet; and Medical-100 square feet. The theater would require one space for every two seats and 5 for staff. See Petitioner's Exhibit 9. Utilizing the areas given above and the code's parking factors given above, the governmental offices less HRS would require 267 parking spaces. HRS would require 140 parking spaces. The clinic/dialysis center would require 52 parking spaces. The commercial uses would require 196 parking spaces, and the 232 seat theater would require 166 parking places. It is inferred that the vacant space was to be rented to governmental activities pursuant to the landlord's plan, and would require 188 parking spaces. A total of approximately 1,010 parking spaces would be required for the entire facility computed on gross areas assuming no future changes in the existing leaseholds and the lease of all the vacant space for government offices. The city code utilizes net area to compute parking excluding rest rooms, halls, etc. However, the estimation using gross figures results in a maximum estimate. Paris certified that the parking spaces were controlled by the bidder, that the parking spaces were on site and in the area indicated on the site plan submitted with the bid, and that 980 parking spaces could be accommodated. Paris' site plan also indicated the area in which the 140 parking spaces for HRS would be located. Other tenant parking was not indicated on the site plan; however, none of the other tenants had assigned parking. Paris calculated that a total of 840 spaces were required using the known data for current leases, 140 spaces for HRS, and a factor of one parking space for every 200 square feet of remaining vacant space. The building official opined that the completely leased facility would require between 750 and 1050 parking spaces, and that there was enough space on site to accommodate the required parking. Other competent evidence was received that between 880 and 1,077 parking spaces meeting code requirements could be placed on the site. Estimates by qualified, knowledgeable people varied based upon assumptions about occupancy and use, whether the lot could be "grandfathered in" and how the parking lot was laid out. There were enough spaces to provide parking for the HRS lease and all of the existing tenants at the time of submission of the bid proposal. However, under the existing code provisions, 140 parking spaces could not be accommodated in the rectangle indicated on Paris' site plan. This is not considered to be a material deviation from specifications because Paris had agreed to provide 140 spaces, the final arrangement and placement of the parking for HRS was subject to further negotiation, and the entire parking lot was subject to being relined. If spaces meeting code requirements would not have fit in the rectangle, Paris would have been required to adjust the size of the rectangle or design of the parking until they did fit. This was relatively easy because the other tenants did not have assigned parking. The RFP provided that the successful bidder would have time to remodel the property and to bring it into compliance with existing codes. This would include the parking facilities as well as the building. The HRS staff made a site visit, and were familiar with the property. They concluded that there was sufficient parking, and that Paris had made a valid, supportable offer. Their conclusion was reasonable given the opinion of the local building official and their personal knowledge of the property. The RFP calls for a performance bond, and permits HRS to cancel the contract if the successful bidder cannot perform under the terms of the bid. Minor deficiencies in the proposals of Procacci and Paris, which are not at issue in this case, were waived. The RFP contained no "fatal" deficiency provisions. The ITB stated that HRS reserved the right to waive minor informalities or technicalities, and seek clarification of bids received.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner's Petition be dismissed. DONE and ENTERED this 7th day of July, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995. APPENDIX All of the parties filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1. Paragraph 2 Irrelevant. Paragraph 3 Paragraph 5,6. Paragraph 4 Argument and conclusions. Paragraph 5 Paragraph 7. Paragraph 6 First sentence is contrary to best evidence. Second sentence subsumed in other findings. Third sentence is contrary to best evidence. Paragraph 7,8 Subsumed in Paragraph 8. Paragraph 9 Irrelevant. Paragraph 10 Subsumed in Paragraph 6, and Conclusions of Law. Paragraph 11 Subsumed in Paragraph 8. Paragraph 12 No confusion exists. The terms of the RFP are clear. Paragraph 13 Rejected. There is no requirement to indicate on the site plan "existing" parking, unless it is assigned to an existing tenant. There was no assigned parking for existing tenants. Paragraph 14 Rejected. Paris' letter is based upon assumptions regarding future occupancy and uses; however, the site plan is not based upon those assumptions. Paragraph 15 Irrelevant. Paragraph 16 See comments to Paragraph 14. Paragraph 17 It was confusion for Paris to include parking spaces in areas marked "Future out parcels" on his site plan; however, this was clarified by HRS in its discussions with Paris, which indicated that there were no planned uses for those areas. Paragraph 18 The figure of 937 spaces is not mentioned on either of the two pages referenced. See discussion in Paragraph 19, Findings of Fact. Paragraph 19 Paris did not certify 980 "existing" spaces. He certified that the parking lot could accommodate 980 parking spaces. Paragraph 20 Contrary to facts. The 813 figure was not "identified" by HRS. Further, it is unclear from the reference to what the figure referred. Paragraph 21 Subsumed in Paragraph 9 et seq. Paragraph 22 See discussion of Paragraph 17, above. Paragraph 23 Subsumed in Paragraph 9 et seq., and Paragraph 13-18. Paragraph 24 Subsumed in Paragraph 19. Paragraph 25 Rejected as argument. Use of gross figures increases the number of required spaces; therefore, is not misleading in making estimates of future needs. Paragraph 26 Rejected as argument, and contrary to facts which indicates that HRS did conduct site visits, was familiar with the facilities, and checked challenged information with city building officials. Paragraph 27-29 Irrelevant, and subsumed in Paragraph 8. Respondent's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2,3,4 Subsumed in Paragraph 8. Paragraph 5 Subsumed in Paragraph 4. Paragraph 6 Subsumed in Paragraph 8. Paragraph 7 Irrelevant. Paragraph 8 Subsumed in Paragraphs 8,13,19. Paragraph 9 Subsumed in Paragraphs 4,5. Paragraph 10 Subsumed in Paragraph 7. Paragraphs 11,12 Subsumed in Paragraphs 5,19. Paragraphs 13,14 Subsumed in Paragraph 13 et seq. Paragraphs 15,16 Subsumed in Paragraph 19. Paragraph 17 Subsumed in Paragraph 13 et seq. Paragraphs 18-21 Irrelevant. Paragraphs 22-24 Subsumed in Paragraphs 8,23. Paragraph 25 Subsumed 22,24. Paragraphs 26-28 Subsumed in Paragraph 6. Paragraph 29 Subsumed in Paragraph 2. Paragraphs 30,31 Subsumed in Paragraphs 8,19. Paragraph 32-34 Subsumed in Paragraph 13 et seq. Paragraph 34 Subsumed in Paragraph 19. Paragraph 35 Irrelevant. Paragraph 36,37 Subsumed in Paragraph 19. Paragraph 38 Subsumed in Paragraph 15. Paragraph 39 Subsumed in Paragraph 11. Paragraphs 40-42 Subsumed in Paragraph 13 et seq. Paragraphs 43,44 Subsumed in Paragraph 17. Paragraphs 45,46 Subsumed in Paragraphs 23-24. Paragraph 47 Paragraph 18. Paragraphs 48,49 Subsumed in Paragraph 19. Paragraphs 50,51 Under the terms of the RFP, Paris had the opportunity to bring the facilities into code compliance. Failure to do so was a basis for terminating the contract. See Paragraph 20. Paragraph 52 Subsumed in Paragraph 19. Paragraphs 53-60 Subsumed in Paragraphs 10-12. Paragraph 61 Paragraph 19. Paragraph 62 Paragraph 8. Paragraphs 63,64 Conclusions of Law. Intervenor's Recommended Order Findings Paragraphs 1-4 Paragraphs 1-4 Paragraph 5 Paragraph 2 6,7 Not necessary to determination of issues. Paragraphs 8i-vii Subsumed in Paragraphs 5,6,8,10,19,21. Paragraph 9 Paragraph 13. Paragraphs 10i-viii, 11i-iv,12i-vi Paragraphs 13-17,21 Paragraph 13 Paragraph 8. Paragraphs 13i-ii Ir-relevant. Paragraph 13iii Paragraph 8. Paragraphs 13iv,v Irrelevant. Paragraphs 15-15iii Paragraphs 8,23. Paragraphs 16i-ii,17 Paragraph 8. Paragraph 18 Paragraph 9. Paragraphs 19,20 Paragraphs 10-12. Paragraphs 21i-v Paragraph 19. Paragraphs 22i-vii Conclusions of Law. Paragraphs 23i-iv Paragraph 19. Paragraph 24 Irrelevant. Paragraph 25 Conclusions of Law. Paragraph 26i-viii Paragraph 19. COPIES FURNISHED: Robert A. Sweetapple, Esquire Sweetapple, Broeker, and Varkas 465 East Palmetto Park Road Boca Raton, FL 33432 Ellen Phillips, Esquire HRS District 12 Legal Office 210 North Palmetto Avenue, Suite 412 Daytona Beach, FL 32114 Robert W. Morrison, Esquire Wells, Allen, Lang and Morrison 340 North Orange Avenue Orlando, FL 32801 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact The property here involved comprises 6.2 acres located in Southeast Clearwater near U.S. 19 and Nursery Road. It fronts on Nursery Road, which is on the north side of the property and the zoning is RM-16 (medium density multifamily). A multifamily HUD project is under construction and approximately two-thirds complete. The issue in this case is the denial of Chateaux de Ville's application for a variance to erect a six-foot wall on the front property line which abuts Nursery Road. Zoning regulations authorize a 30-inch fence along the front property line. Preliminary site plan for this townhouse development was approved by the City Commission on November 19, 1981 (Exhibit 1), as a Final Site plan. A minor amendment to this plan to erect the 30-inch masonry wall in the setback area in the northwesterly corner of the property was approved December 15, 1983 (Exhibit 2). On August 13, 1982, the City of Clearwater Engineering Department approved Final Site plans which showed the proposed six-foot high concrete wall on the front property line running the entire length of the property along Nursery Road (Exhibit 8). That approval was granted subject to compliance with all zoning regulations. No approval from the City Planning Department was obtained for this proposed wall. A second amendment to the site plan to add a bath house adjacent to the swimming pool was approved April 19, 1984, by the City Manager upon recommendation of the Planning Department (Exhibit 3). A third revision to the site plan to provide for a six foot perimeter wood fence along the east, west, and south sides of the property and to provide six-foot fences between the individual townhouse unit rear yards located both internally and along the east, west, and south perimeter of the project area was approved in July 1984 (Exhibit 4). In recommending approval of this amendment, which complied with the zoning regulations, the Planning Director noted that no fencing is being provided for the townhouse units along the north side of the project adjacent to Nursery Road. Without obtaining a building permit for its construction, a six-foot concrete block wall was erected on the front property line (adjacent to Nursery Road) by the developer. No building permit for such construction would have been issued by the City until a variance in permitted fence height had been obtained. The building and zoning regulations provide that no fence higher than 30 inches can be erected in the front setback area without first obtaining a variance. Approximately one-third of the tract being developed is occupied by a lake on the south end of the property. This lake was described as a very attractive lake with good fishing. Appellant contends that this lake constitutes an attractive nuisance and the wall on the front of the property is needed to keep children from entering the property. Appellant also contends that the six-foot wall along the front of the property is needed to protect the residents from burglars, thieves, and other criminal elements who easily could enter the property from Nursery Road if the fence is not there to deter them. The wall also serves to complete the six-foot enclosure around the property.
Findings Of Fact At all times material hereto, Respondent has been a certified general contractor in the state of Florida, having been issued license number CG C027718. At all times material hereto, Respondent has been the qualifying agent for Classic Design Builders. William R. DeFreitas describes himself as a broker of building materials for third world countries. His wife is also employed in that same business. They had their office building constructed for them. When they subsequently determined to add an addition to their residence, they solicited bids from that contractor and from two other persons. Aaron Ware, who held himself out to be an architect and the president of a company known as L. A. Designs, Inc., was one of the persons from whom the DeFreitases solicited a bid. He submitted a bid dated April 26, 1990, and a draw schedule on May 3, 1990. The extent of the work to be performed was finalized on June 6, 1990, when Mr. DeFreitas initialed the changes to the initial bid. The construction project contemplated under that contract was the addition of a family room, a laundry room, a shower off the master bath, and a small bath at the front of the house. The June 6, 1990, contract also called for replacement of the garage door and "painting of some interior doors." The total contract price was $50,000. While Ware was negotiating with the DeFreitases, he was also discussing with Respondent entering into a joint venture agreement between Classic Design Builders and L.A. Designs for the DeFreitas construction project. Their verbal agreement was memorialized in a written agreement dated June 18, 1990. Thereafter, Respondent did not advise Petitioner that he had entered into a joint venture agreement and, similarly, did not qualify the joint venture as a separate business entity for licensure purposes. Pursuant to instructions from Ware, Mr. DeFreitas directed a letter to the City of Boca Raton advising the building department that he had entered into a contract to construct an addition to his residence with "L.A. Designs/ Classic Designs." On July 2, 1990, Respondent on behalf of Classic Design Builders obtained a building permit from the City of Boca Raton for the DeFreitas addition. On July 6, Ware began work on the addition. Ware worked on the project from July of 1990 through the end of that year. During the course of that construction, the DeFreitases made many changes in the scope of the work contemplated by the original contract, which increased the contract price to above $56,000. Additional work was performed, which was not covered by the contract and which the DeFreitases agreed to pay for directly to the supplier or subcontractor. On February 4, 1991, the DeFreitases directed a letter to Ware advising him that the construction was close to completion and that it was time for them to "settle our account" as to the extras for which the DeFreitases had not paid. In that letter, the DeFreitases also offered to produce the invoices for materials and labor that they had agreed to pay to finish the job. In July of 1991 the DeFreitases complained to the City of Boca Raton. Respondent, as the holder of the building permit, was contacted and advised that the DeFreitases were alleging that their contractor had failed to complete the project. Respondent immediately went to the DeFreitases' business, met with Mr. DeFreitas, inspected the home, and prepared a punch list of items to be completed, many of which were not covered by the construction contract but were done by Respondent in an attempt to achieve customer satisfaction. Respondent completed the project, obtained the final inspections, and presented the DeFreitases with a warranty and release of lien. The DeFreitases refused to accept the warranty or release of lien. As a result of the DeFreitases' complaints, Respondent and Ware were charged with violating local ordinances. In those prosecutions, as well as in this case, the DeFreitases have attempted to obtain $11,000 from Respondent as "restitution" for moneys they have had to spend or will have to spend to complete the work envisioned by their contract with L.A. Designs, Inc. Most of the items listed as components of the claim for restitution are not even part of the construction contract. Of those few items covered by the contract, the money claimed is not. For example, the contract allocated $500 to be expended on the bathroom cabinets. The DeFreitases spent $1,670 on the cabinets and, surprisingly, are claiming that Respondent should pay them the difference because they spent more than their contractual allowance. Finally, they have claimed the cost of replacing inferior building materials provided by them, such as wood French doors. The DeFreitases paid to Ware approximately $4,000 less than they had promised to pay him as a result of the work completed by L.A. Designs. Rather than suffering a loss, the DeFreitases have actually received a windfall. At no time material hereto was either Ware or L.A. Designs licensed in the state of Florida as a contractor, architect, professional engineer, or landscape architect. Respondent knew that Ware and L.A. Designs were not licensed. At the time that Classic Design Builders and L.A. Designs entered into their written joint venture agreement and at all other times material hereto, Respondent was not an officer, director, stockholder, or employee of L.A. Designs, and Ware was not an officer, director, stockholder, or employee of Classic Design Builders. When Ware approached Respondent about entering into a joint venture for the DeFreitas project, Respondent had already suffered a minor heart attack and two mini-strokes. The joint venture agreement itself recites Respondent's need to limit his activities due to health reasons. In July of 1990 Respondent additionally tore an Achilles tendon in his left leg and was in a cast until Christmas of 1990. Due to his immobility during that time period, Respondent delegated all of his construction jobs to others, understanding that he was ultimately responsible for those projects since he was the contractor of record on them. In the same way, he delegated to Ware the day-to-day responsibility for the DeFreitas project. Other than "pulling the permit" for the DeFreitas project, Respondent's only other involvement in the job until the time that he was contacted as a result of the DeFreitases' complaints to the City of Boca Raton in July of 1991, was right after the job was commenced regarding some problem concerning the lot line. He was able to resolve that problem with the City of Boca Raton by telephone. The DeFreitases did not know that Respondent was the contractor for their construction project and ultimately responsible for that work. Although Ware had advised them that a "buddy" would somehow be involved in the construction, and although Mr. DeFreitas referred to both L.A. Design and Classic Design Builders in his letter to the City of Boca Raton authorizing a building permit to be issued, the evidence is clear that had the DeFreitases known of Respondent's responsibility, they would have been insisting that he perform services months earlier. In 1987 Respondent was charged with abandoning a construction project and/or failing to timely complete it. Respondent entered into a settlement stipulation admitting that fact and agreeing to pay a fine to the Construction Industry Licensing Board in the amount of $1,000. A Final Order Approving Settlement Stipulation was entered on June 8, 1988. Respondent received no money from the DeFreitases or from Ware for the work Respondent performed on the DeFreitas addition. Respondent's out-of-pocket expenses for labor and materials on the DeFreitas residence between July of 1991 and June of 1992 total $1,747.50.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Counts I, II and VII of the Administrative Complaint filed against him; Finding Respondent not guilty of Counts III, IV, and V of the Administrative Complaint filed against him; Requiring Respondent to pay an administrative fine in the amount of $1,000; and Placing Respondent's license number CG C027718 on probation for a period of two years. DONE and ENTERED this 16th day of November, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 16th day of November, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-10, 16-20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11-15, 21, and 24 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 23 has been rejected as being subordinate. COPIES FURNISHED: John David Ashburn, Esquire Department of Business and Professional Regulation 3932 RCA Boulevard, Suite 3210 Palm Beach Gardens, Florida 33410 Diane Perera, Esquire Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Peter Mineo, Jr., Esquire 8220 State Road 84 Fort Lauderdale, Florida 33324 Copies furnished, continued Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact During 1981, a five-story, ninety-eight unit condominium was constructed in Deerfield Beach, Florida. This condominium was called the "Beach House". The prime contractor on the Beach House project was "Morelite Construction Company." The licensed general contractor who qualified Morelite Construction Company at the time of the Beach House project and who was closely involved with that job was Mr. Raymond Orsi. The engineer who designed the Beach House was Mr. Alan Reese. Morelite Construction Company hired as a subcontractor "General Contractors of Florida, Incorporated," which firm was qualified by Respondent at the time of the Beach House project. At the time of the Beach House project and final hearing in this case, Respondent was licensed as a contractor as alleged in the Administrative Complaint, was qualifying agent for General Contractors of Florida, Inc. (hereafter GCOF) and responsible for that firm's work. GCOF was hired by Morelite as the "shell contractor." GCOF's contract called for GCOF to do all the concrete and masonry work in building the Beach House. GCOF was to build the structural shell of the building, leaving all plumbing, electrical, and finish work to be done by other parties. More specifically, GCOF was to construct all the plywood frames for the numerous concrete beams and columns for the Beach House, to assemble the steel reinforcing rods inside those forms, and then pour the concrete into the forms. The steel and concrete was supplied by Morelite. GCOF was also responsible for constructing the numerous concrete block walls throughout the condominium and pouring the concrete floors on each of the five levels of the condominium building. The floor joists and floor form work were done by other firms, and GCOF's responsibility was to pour concrete slabs on top of those joists and to assure proper thickness of the slabs. GCOF's contract called for the firm to construct plywood forms for the various concrete beams and columns on the Beach House, to assemble inside those forms the steel in reinforcing rods, and to pour the concrete into the forms. The steel and concrete was supplied by Morelite, but all labor and know-how was supplied by GCOF. As admitted by Respondent, after removing the plywood forms on numerous beams that had been assembled and poured by GCOF, it was discovered that extensive honeycombing on the bottom of the beams had occurred. Irregular void and pitted areas at the bottom of the beams were found where there should have been solid concrete. It was apparent that the honeycombing was caused by the failure of the concrete to reach the bottom of the forms. Although the Respondent asserted that the honeycombing was caused by an improper concrete mix which was supplied to him, slump tests performed by an independent testing laboratory from concrete as it as being delivered and used by Respondent, show that the concrete Respondent was using was in the range that would be required to properly form the beams. Acceptable construction practice calls for a contractor doing concrete work such as Respondent's firm to repair honeycombing within several days of removing the plywood forms in order to minimize rusting of reinforcing steel. The honeycombing was obvious to the naked eye and with a minimal degree at supervision by GCOF, it would have been immediately corrected. The honeycombing occurred because of Respondent's failure to sufficiently "vibrate" the concrete during the pour. Concrete is vibrated by placing a rapidly vibrating cylinder in the concrete as it is being poured into the form. The vibration tends to cause the crushed aggregate in the concrete to work its way around obstacles such as reinforcing bars and down to the bottom of the form. The honeycombing problem on this project was approximately ten times worse than would normally be expected on similar jobs of similar design and complexity. Ten percent of the concrete on this job was effected with honeycombing, whereas, normally only one percent of the concrete is affected. These voids and honeycombs constitute a violation of Section 2506.4 and 2506.6 of the South Florida Building Code which was in effect in Broward County, where the Beach House is located, when the project was being built. The Respondent received some off-color defectively mixed concrete and for one day concrete delivery was prematurely stopped. However, this occurrence was limited to one or two particular beams, and in any event did not involve the honeycombing problems, unfilled wall cell problems, or other problems alleged in the Administrative Complaint. GCOF's contract called for GCOF to place reinforcing steel in the concrete block walls throughout the project at a spacing of approximately four feet, and then to fill each such cell with concrete. Concrete block walls divided the condominium apartments from one another, and also constituted the exterior walls of the condominium building. The concrete block walls rested on the poured concrete beams for each floor. The walls were of the common variety of concrete blocks commonly seem throughout South Florida. Each such block contains holes or cells. The design called for having, approximately every four feet, a vertical series of blocks in which tee-holes were vertically aligned with one another from top to bottom of the wall. A long piece of reinforcing steel bar was then placed in the vertical series of block cells and the entire vertical series of cells was filled with solid concrete poured from above. There was a failure, however, to comply with the requirement concerning these reinforced masonry cells. On a typical section of this job, approximately 30 or more such vertical cells could be expected to be unfilled. In the same typical section of a comparable job where solid construction practices were being observed, approximately four or five cells could be expected to be unfilled. The cell problem on this project, as stated by one expert, was "grossly out of line." Moreover, in numerous cases the "cleanout holes," which were required by contract, were not present. There was a significant occurrence of instances in which reinforcing steel was not placed in the cells as required. The failure to fill the cells constituted a violation of Section 2704.10(d) of the Broward County Building Code in force when the Beach House was built. The honeycombing and unfilled cell errors occurred in GCOF's work over the course of approximately five months during which several floors of the building were being built and were seen throughout all three floors of the structure. GCOF's contract required that firm to pour the cement for each floor built. The concrete slabs should have been three inches thick, but varied in thickness from 1.75 inches to five and a half inches. It was Respondent's assertion that this variation was caused by a bow in the "Hambro" joists that were used on the Beach House. The "Hambro" joists refers to joists manufactured by the Hambro Company. Each joist has built into it a slight upward bow. The joists are supported an each end of the poured concrete beams. The joists are then covered with forms, and concrete is poured over the forms to constitute the floor of each level of the building. The weight of the concrete presses the bow out of the Hambro joist. It was Respondent's assertion that the thickness variation was caused by a design error in that the concrete weight was insufficient to press out the bow. Thus, Respondent asserted that the pattern of variation in thickness was that the concrete slabs were thickest at each side corresponding to the ends of the Hambro joists, and grew steadily thinner toward the center of the slab, where the joist bow brought the joist and subflooring to their highest point. However, field observations demonstrated that the thickness variations occurred randomly about the slabs as seen through the numerous plumbing holes routinely cut through the slabs. There was no pattern of the slabs being thinnest down their center lines. The variation in slab thickness was excessive as compared to acceptable practice in the industry, and deviated from what could be expected to be found on a similar job. The slabs were at times half as thick as required, and at other points they were twice as thick as required. These variations constitute violations of Broward County Building Code Sections 301.1, 301.2 and 301.4, in force when the Beach House was built. GCOF's duties on the job included placing certain corner steel. The corner steel was made of pieces of reinforcing steel rod, bent in an "L" shape, and placed in the beam forms at each corner of the building before any of the corner beams were poured with concrete. Their purpose was to tie the walls together where they met at 90-degree corners. The corner steel was required by the engineer's drawings and notes, and personnel of GCOF should have noted the requirement for placing said steel. None of the corner steel was placed as required. The absence of the corner steel was noted by other parties when the Beach House was approximately one-third complete. That entire one-third of the job had been done without placing any of the corner steel bars as required. The omission of the corner steel was a serious safety hazard and a violation of the Broward County Building Code Sections 302.1(e), 302.2 and 302.4. Voids in concrete columns existed underneath the beams on the project in at least two places. These vertical columns, which were formed, reinforced, and poured by GCOF were on the lower floor, and across their top ran an important horizontal beam. Upon inspection, it was noted that at the top of each column, which was designed to support the horizontal beam, the concrete had significant voids or empty spots. As a result, the load capacity of the columns was seriously weakened. These voids were critical and severely affected the structural integrity of the building. It was shown that they were visible to the naked eye and were of such a key nature that experienced construction personnel should have noted the problem immediately. Nevertheless, GCOF had removed the forms and had said nothing about the problem, allowing work to go on above without correction, adding another floor on top of the defective columns. When the problem was discovered an immediate temporary shoring all around the affected columns was ordered by the project engineer until repairs could be made. These voids constituted a violation of Broward County Building Code Section 2506.4. On July 22, 1981, the Deerfield Beach Building Department, which had jurisdiction of the Beach House job issued a stop work order on the project. The causes of the stop work order were the same deficiencies alleged in the Administrative Complaint, and described above. A series of meetings between the building department design engineer, the prime contractor, the owner and GCOF, concerning necessary remedial work was necessary. Certain repairs were done, and on August 7, 1981, the building department allowed work to resume. In July of 1981, Morelite Construction Company fired GCOF from the job due to dissatisfaction with the quality of GCOF's work. GCOF entered into its contract for the Beach House job on March 19, 1981, began work in March, and had been on the job approximately five months prior to being fired. The competency of GCOF's personnel on the job and the quality of supervision provided by Respondent and Respondent's personnel were constant problems throughout the job, and this was repeatedly brought to Respondent's personal attention. After the building department issued its stop work order, a series of meetings were held between the building department, the owners, the general contractor, Mr. Reese, and representatives of GCOF concerning necessary remedial work. Respondent did not attend any of those meetings, despite the fact that it was GCOF's work that was in issue. During the five months that Hector Vergara, the project engineer, inspected GCOF's steel placement, he never saw Respondent in the building. It was the Respondent's standard procedure to check on the job by stopping his car outside the site end asking an employee via mobile radio how the job was going. On occasion, Respondent would go to the construction shack on the job, but never ventured into the project. The failure to reinforce the masonry block walls resulted from insufficient supervision by GCOF on the job. GCOF never inspected the placement of steel reinforcing prior to the engineer' inspection. The problems cited in the Administrative Complaint were caused by a lack of supervision by the workmen of GCOF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for six months. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984. COPIES FURNISHED: Ira L. Varnum Post Office Box 3100 Deland, Florida 32720 Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
