Findings Of Fact For a period of 24 years, Petitioner, Richard M. Sellars, owned and operated a business under the name of Durable Concrete Products at 1331 - 26th Avenue East, Bradenton, Florida. The business site was leased by Petitioner from Seaboard Coast Line Railroad Company and was used by Petitioner for a concrete products manufacturing plant, principally manufacturing concrete storm sewers and concrete slabs. The manufacturing facilities at Durable Concrete were located on a triangular-shaped tract of land fronting on 26th Avenue East. The premises were fenced for security. Access to the plant was through a gate and driveway on 26th Avenue East. The flowage of products, materials, and equipment was past the office building and around to the side of the property. The office was utilized for usual administrative and clerical activities and as a checkpoint for trucks entering and leaving the premises. Raw materials were placed on the rear of the property. A materials silo was used for sand and gravel storage and transfer to the concrete mixer, weighing approximately eight tons, which was housed in an open steel unit or shell. Neither the mixer nor the steel shell was attached to the land. Some of the equipment stood on concrete slabs specifically constructed by Petitioner. The manufacturing process for the concrete pipe involved the mixing of raw materials into the rear of the concrete mixer, the pouring of the mix into molds that were in turn moved by a monorail approximately 60-80 feet long into the open air where the pipes were taken from the molds and transported to various drying and storage areas located throughout the premises. The concrete pipe was moved over an extended system of constructed shell roadways by large forklifts. The manufacture of concrete slabs was performed at several different locations to the west of the concrete mixer and office building. Concrete was moved from the mixer to various forms by forklifts. The concrete was poured into forms and allowed to dry. These forms were then removed, creating concrete slabs that were then stockpiled in several separate locations. Throughout the site, various pipes and slabs were stored for individual projects or as inventory for future sales. It was commercially necessary that Petitioner have immediately available several different types of pipe that are not standard sizes and therefore being continuously produced. In approximately 1970, Petitioner learned that Respondent was locating the route of a proposed limited access highway through the immediate area in which his leasehold was located. Although the exact location of the route remained undetermined, Petitioner regularly conferred with county officials to discover the location of the proposed construction. Petitioner determined that he could not continue in business at his site when the highway was constructed and began to seek an alternative location for his business. In late 1972 or 1973, Petitioner located the closest suitable site with zoning appropriate for a concrete manufacturing plant and purchased two adjacent five-acre sites. Petitioner purchased the property to protect himself from the anticipated expropriation of his leasehold when the highway was ultimately constructed. Prior to Respondent's acquisition of the right-of-way, Petitioner's business had prospered. It was located at an advantageous location and was well suited for Petitioner's business activities. The property was properly zoned, commercially accessible, and economical in that the rental to the Railroad was less than the taxes assessed upon Petitioner's replacement site. He had no desire to move his business location. Respondent formally located and designated the highway route and project location on November 12, 1976. On May 1, 1978, Petitioner and the Railroad entered into their next lease agreement. On May 22, 1978, the Respondent commenced formal negotiation with the Railroad for the acquisition of Railroad property, including the Petitioner's leasehold. Petitioner was officially notified of these negotiations on October 16, 1979, upon receipt of the Respondent's form notice. On November 19, 1979, the Secretary of the Florida Department of Transportation, by Resolution, directed the commencement of condemnation of certain lands, part of which included the Petitioner's leasehold. On December 4, 1979, the Railroad gave the Petitioner 30 days' notice that his lease was cancelled because the property was being acquired by the Respondent. On November 12, 1980, Petitioner was directed by Respondent to vacate the right-of-way acquired by Respondent by December 13, 1980. Petitioner's actual move from the site was completed by March 2, 1981. The right-of-way acquired by Respondent included Petitioner's property fronting on 26th Avenue East, his fence, driveway, office building, and yard improvements. A part of the monorail and slab area were also taken. The acquisition amounted to approximately 40 percent of the leasehold. Additionally, the acquired area had been used for storage of inventory products, and the taking required moving a large number and variety of these items. Respondent's own appraiser Klusza determined that the taking rendered the balance of the property entirely useless and adversely affected the interior flow of products and movement of equipment. Additionally, the remainder of the leasehold not acquired by Respondent was, after Respondent's taking, landlocked, i.e., there was no available route for ingress to or egress from the remainder of Petitioner's leasehold after acquisition by Respondent of the right-of-way for the limited access highway. Petitioner requested relocation assistance from Respondent's representatives. He secured two bids or estimates for relocating his plant from certified movers approved by the Respondent. The Meade House Moving, Inc., estimate was prepared May 21, 1980, and totaled $69,500-72,500. This estimate included moving the office building at a cost of $4,500. The R. E. Johnson & Son, Inc., estimate was prepared June 2, 1980, and totaled $70,285. This estimate included moving the office building at a cost of $5,450. These estimates were submitted to the Respondent's representative but were rejected as they included property located outside the acquired right-of-way. Respondent's representative made a physical inventory of the concrete pipe located in the acquired right-of-way. Petitioner was then allowed to solicit estimates from three qualified movers for moving the items on the inventory only. These estimates were prepared by Jan Guidry Trucking in the amount of $9,772.88, Gould Trucking, Inc., in the amount of $10,000, and Burns Equipment Company for $9,780. On March 27, 1981, Respondent's representative delivered to Petitioner a completed application and claim for reimbursement of moving costs. This application accepted the lowest of the three estimates as the basis for payment to Petitioner for his self-move of the designated items, in accordance with Respondent's standard policy of permitting the direct payment to a displaced occupant for a self-move equal to the amount of low bid of at least two certified movers. Petitioner did not sign or submit that application for benefits. Between February, 1980, and March, 1981, the Petitioner moved his manufacturing plant to his new location. This move was made as a result of Respondent's construction project and the expropriation proceeding brought by the State of Florida. Petitioner was unable to feasibly continue to operate at his prior site due to the acquisition of the right-of-way. Even had Petitioner been able to "re-arrange" the manufacturing shed, monorail, and other equipment, the amount of land remaining after Respondent acquired the right-of-way was not sufficient for Petitioner's needs for flowage of products or storage of inventory. The taking of 40 percent of his leasehold destroyed the utility of his improvements, severely limited the area in which he would have to operate, and rendered his continued operation impossible without regard to the desires of his landlord. In other words, it was not his landlord's cancellation of the lease which caused Petitioner to move but rather the acquisition of part of his leasehold for the highway project. The disassembly and reassembling of Petitioner's equipment, and the disconnection and reconnection of the electrical and plumbing facilities to the plant equipment were not improvements to his operation. These changes constituted the duplication of the plant and its necessary connections equivalent to his former location. The actual cost to Petitioner for the relocation of his business was $75,997.50. This total included moving the office building at a cost of $6,400. The office building constituted real property, even though Petitioner's lease with the Railroad required him to move the building at the time of vacating the premises. Reimbursement or payment for moving the office building is not authorized, but Petitioner is entitled to benefits for the remainder of the equipment and property set forth on the respective bids or estimates. Petitioner is a displaced person as defined by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and applicable federal and state regulations thereunder. The project for which Petitioner's leasehold was acquired in part was a federally financed project for which relocation assistance for displaced persons is mandated under the Act. At the time the property was acquired, Petitioner was an initial occupant as defined under the appropriate guidelines established by the Respondent's right-of-way manual. Where a displaced person elects to make a self-move, as opposed to utilizing a commercial mover, that person, under the various applicable statutes and regulations, is entitled to receive as direct payment the lowest of the actual cost of the move or the lower of any two bids secured from qualified movers for moving the property, as well as removal and reinstallation expenses at the new business site. The lower of the two qualified bids submitted, after excluding the cost for moving the real property and after taking the low of $15,000 on the Meade bid that provided a $15,000-18,000 range for moving hundreds of concrete pipes, is the Johnson & Son bid in the amount of $64,835. Each of these bids itemized the property that was to be moved from the former leasehold to the new business location and included the cost for the removal and reinstallation of the equipment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Petitioner entitled to relocation benefits for moving his business from the entire leasehold, finding the cost of moving the office building to be ineligible for reimbursement, and determining Petitioner entitled to the amount of $64,835 as direct payment for his self- move. RECOMMENDED this 13th day of November, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 13th day of November, 1981. COPIES FURNISHED: Donald B. Hadsock, Esquire 1806 Manatee Avenue, West Bradenton, Florida 33505 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, Room 562 Tallahassee, Florida 32301 Mr. Jacob D. Varn Secretary Department of Transportation Haydon Burns Building, MS 57 Tallahassee, Florida 32301
Findings Of Fact Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles) The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation) For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles) At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel co-signed a bank loan agreement for the project. (Testimony of K. Alles) Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation) On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)
Recommendation That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S. DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 James K. Kinnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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
The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
Findings Of Fact Respondent is a registered general contractor having been issued license number RG 0009255. On September 5, 1980, Respondent, who was then doing business as George N. Sullivan, Inc., entered into a contract to remodel a residence owned by Mr. and Mrs. James L. Cain located at 2075 DeLeon Avenue, Vero Beach, Florida, for the sum of $46,900. On September 8, 1980, George N. Sullivan, Inc., was paid $4,690 by the Cains as a down payment for the above-referenced construction project. Respondent performed no work with reference to that construction project. On December 7, 1979, the Respondent, doing business as George N. Sullivan, Inc., entered into a contract with Vero Fore, Inc., to construct a residence located at Lot 27, Unit 3, The Moorings of Vero Beach, for the sum of $155,628. The difference between the sum of the contract, $155,628, and the sum alleged in the Administrative Complaint of $171,688 constitutes agreed-upon extra items. Respondent discontinued construction on the Vero Fore project on or about September 22, 1980, after having received $153,547 of the contract amount. At the time that Respondent discontinued construction on the Vero Fore project, there remained $66,199.60 in unpaid bills for labor and materials furnished to Respondent for that residence; yet, the owners of the residence only owed to Respondent $18,141 of the final contract price. On July 6, 1981, Respondent was convicted of five counts of passing worthless checks. These checks represented payments to materialmen and subcontractors with regard to the residence being built for Vero Fore, Inc. The convictions resulted in a judgment dated July 6, 1981, which was entered in the County Court, Indian River County, in cases styled State of Florida v. George N. Sullivan, Case Nos. 81-57 and 81-589, in which the Respondent was placed on probation for 18 months with condition of restitution. At no time material herein did Respondent properly qualify George N. Sullivan, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint and revoking Respondent's registered general contractor's license number RG 0009255 with the provision that Respondent be allowed to have his license reinstated after a two- year period if he furnishes to the Construction Industry Licensing Board clear and convincing evidence that he has made restitution to Mr. and Mrs. Cain and the five material suppliers to which he was convicted of passing worthless checks. DONE and RECOMMENDED this 3rd day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1982. COPIES FURNISHED: JOHN O. WILLIAMS, ESQUIRE 547 NORTH MONROE STREET, SUITE 204 TALLAHASSEE, FLORIDA 32301 MR. GEORGE N. SULLIVAN 22 EAST SPRUCE STREET ORLANDO, FLORIDA 32804 SAMUEL R. SHORSTEIN, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 J. K. LINNAN, EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2 JACKSONVILLE, FLORIDA 32201 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 0014375 0009520 GEORGE N. SULLIVAN RG 0009255 DOAH CASE NO. 82-1535 22 East Spruce Street Orlando, Florida 32804, Respondent. /
Findings Of Fact At all times material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991. 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 25th day of January, 1991. COPIES FURNISHED: Charles N. Tetunic, Esquire Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 Joseph Stephen Sharrow, Esquire Post Office Box 8995 Fort Lauderdale, Florida 33310 Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
