Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Charles F. Geisler, was and is a licensed architect in Florida holding license NO. AR 00006750, and the Petitioner, Board of Architecture, is the state agency responsible for regulating the practice of architecture in this state. Respondent has been engaged in the practice of architecture primarily in the design of residential and commercial structures within Sarasota County continuously since 1976. Over the past several years, he has worked on occasion, with Howard T. Bertram, also an architect, with whom he had worked for several years in an architectural firm in Sarasota. During that period, they worked together on several residential projects. Mr. Bertram was not registered as an architect at the time the project in question was designed. Under Florida law and the provisions of Sarasota's building code, any individual, not necessarily an architect, may legitimately prepare plans for a single family residence. Mr. Bertram was contacted by Chester Kuttner, a Chicago real estate developer who also has worked in Florida, to design a single family residence for him on Ringling Point in Sarasota. Because this site is located in a coastal high hazard area, and a V-20 zone, Regulations promulgated by the United States Federal Emergency Management Agency, (FEMA), established certain requirements to include the requirement that a residence to be constructed in the V-20 zone must be designed by a registered architect; must have an elevation no less than 16 feet above sea level; and must be designed and build so as to resist a certain wind velocity. All this was explained to Mr. Kuttner by Mr. Bertram. Nonetheless, Mr. Kuttner desired that Mr. Bertram design his home. Bertram agreed and began the development of the design concept, but once the project reached the point where working and construction drawings were necessary, and the involvement or a registered architect was required, Mr. Bertram proposed to Kuttner that Respondent be employed to work with him to insure that all FEMA and other requirements were met. Mr. Kuttner agreed. Respondent thereafter submitted a set of plans to the Sarasota building office for review as a prerequisite to the issuance of a building permit. The initial set of plans submitted in September was rejected because of the failure of the plan to meet requirements regarding fill, slab, and the elevation of the swimming pool. None of the original objections had any relationship to those areas in issue here. A second set of plans was submitted by Respondent in November, and approved by the city. These plans bore his seal as architect, and it was his responsibility to determine whether the plans were in compliance with FEMA and State requirements. Though the city officials reviewed the plans, they did not do a complete structural analysis to see if the plans complied with FEMA structural requirements. The plans did, however, comply with local elevation and zoning requirements. According to Mr. Hewes, the building official, the house involved here is similar to many built in coastal areas. It is an elevated house with the bottom portion open, and the living quarters up and over the open parking area below. Because of FEMA criteria, the lower level could not be used for habitation at this location. Respondent admits to sealing both the original and modified plans for the Kuttner house. With regard to the original plans, he prepared sheets 5-1 and 5-2, the structural plans, but merely reviewed sheets 1 - 7 which had previously been prepared by Mr. Bertram. In that regard, Respondent and Bertram went over the plans together and discussed them, and in light of their review, the matter seemed to be appropriate to Respondent who, admittedly, did no calculations. As to the second set of plans, again Respondent drafted sheets 5-1 and 5-2, dealing with the structure, which he revised from the September plans to meet the changed conditions. This applies to the other pages as well, which he checked only as to the required changes. Respondent knew these plans were to be used to get a building permit, and he was aware that the building was to be constructed in a V-20 zone, with an elevation of 16 feet. The original plan for the Kuttner home called for the use of fill to support a concrete slab which would form the floor of the upper habitation area. When, after consultation with governmental authorities, it was decided to remove the fill, Respondent recognized he had to redesign the structure as a wooden frame with truss joists. The use of pilings, as called for in the original plan, remained as a part of the second set. The structure was built as planned. Respondent was present when the piles were driven to insure they were put in the right place; he was on the scene when the steel beams were put in; and came out again to solve a problem regarding plumbing vents and air conditioning ducts. He indicates there was an upgrade in the steel beam size in the floor beam supporting the master bedroom area as a matter of economic convenience to the supplier. These larger beams were installed at no additional cost as was an additional roof beam. "Detail" drawings were provided in some areas, especially the footing areas, (detail A on S-I; detail B on S-1; and base plate and anchor bolt on S-2; and frame sections on S-2). There were no details as to stair framing. Wall sections are detailed in the first 7 sheets, and details of the roof tiedowns are show there as well. Respondent provided for lateral wind loads through a device which called for this load to be transferred to the outer walls. Petitioner's expert claims this was improperly done. The plans do not show plumbing details, but there is no requirement for plumbing details to be shown in single family residence drawings. The drawings must show the location of the structure on the property foundation, floor plans, elevations, and a typical wall section. Requirements in the electrical area include only the locations of outlets and switches. Respondent admits to being compensated by Mr. Kuttner for the services rendered in the design and construction of the building. The comment appearing on the first page of the plans regarding the seal being applied at no charge as a political statement was made as a result of the Respondent's philosophical disagreement with the short-lived Florida sales tax on services. He claims his comment was true: that no charge was imposed for the placement of the seal, but he readily admits he was compensated for his architectural services. This seal comment apparently prompted inquiry by the Board and colored the thinking of several Board witnesses who believed Respondent "sold" his seal to an unlicensed architect. This is not true, however. Respondent performed bona fide architectural services and his seal was properly utilized. Mr. Bertram, who at the time he designed the Kuttner residence, was not registered as an architect in Florida, received his license in January, 1988. His participation in the Kuttner project included development of the design concept, and the accomplishment of the working drawings on which he brought in Respondent as a licensed architect to work with him on the FEMA zone portions. According to Mr. Bertram, he and Respondent met many times on the project. Mr. Bertram's testimony fundamentally supports and confirms in major detail that of the Respondent. He points out that the residence as ultimately constructed, was little changed from the concept design on the September plans. The major difference was the removal of fill and the structural concrete slab as a base for the living area portion of the house, and the substitution of truss joists therefor. What is incontrovertible is that the house, as designed by Bertram and the Respondent, is still on the site where it was constructed, and is occupied by the original owner who is quite satisfied with it. According to both Bertram and Mr. Kuttner, no material changes have been made since it was completed. The project was not, however, so well thought of by Mr. Philip V. Scalera, an architect licensed in both Florida and Georgia, and a consultant for the Board, whose primary architectural practice deals with commercial structures. He does, however, have some experience in residential design, and in his opinion, the subject building, multistory in design and constructed of steel beams on pilings is no different, structurally, from a commercial building. Mr. Scalera, at the request of the Board, reviewed the drawings encompassed in both sets of plans submitted to the Sarasota building office. According to the plans, the structure was to be a wood frame structure above a slab. The first set of drawings indicated the property was to be a conventional slab on grade construction. The structural drawings show no location or information, however, concerning the pilings, and in Mr. Scalera's opinion, it would not be easy to understand the type, location, or load bearing capability of the pilings based on these drawings. He feels this type of structure should be designed for uplift and load bearing. In his opinion, therefore, the first set of drawings regarding the foundation are inadequate. However, the first set of plans were withdrawn and not utilized by the contractor for the construction of the project. It is noted, however, that the first and second set of plans are quite similar, and in that regard, Mr. Scalera points out, as to the second set, his comments regarding the foundation support are not changed. In his opinion, there is insufficient information provided as to the capability of the piling. Other defects found by Mr. Scalera in the second set of plans included: The "details" for retaining walls were non existent. Mr. Scalera feels that in this case, such details were required due to the critical nature of the walls, which included the support and retention of the structure. The "details" for the superstructure were inadequate. The "columns to footage anchorage" are critical and must be evaluated. This can be done only through the use of "details." Here, there is only one "detail" with no calculations by engineers shown and, in Scalera's opinion, this is insufficient. The "detail" regarding the "moment connection", drag bracing, or a means to prevent distortion of the structure by horizontal wind force is absent. There is a "diaphragm" method which can be used for this which is a panel to absorb pressure, and an outer wall, (shear wall). Here, however, no shear wall is shown. Only a glass wall is indicated and glass walls are not capable of resisting lateral wind pressure. On a steel building, with a steel frame, as here, steel or masonry would have been the natural material to resist the wind force, and there is no indication that this is provided. The "details" for stair landings and wall sections are needed but not provided. S-1 on the second set of plans shows joists which bear on the beam which has no support. S-2 shows a stair opening, but the detailing contained in the drawings does not show sufficient detail to allow reviewing officials to oversee construction. The "tie-down" anchors the roof joist to the wall plate and is used to prevent the wind from lifting the roof off the structure. The instant plans call for an overhang of 9 feet, and the uplift force for such an overhang is such as would cause the hurricane clips called for in Respondent's plans to fail. Scalera believes that the fact that the house is still standing means nothing. The design should be sufficient to meet the requirements of an unusual occurrence, in this case, a 50 to 100 year hurricane, and since the construction of this residence, no such winds have been experienced. The lateral bracing used by Respondent is insufficient. The only lateral bracing called for in this plan is made of plywood sheeting on one side. More detail should be shown, with specifications which were absent. Floor beams were, in the opinion of Mr. Scalera, inadequate in size. The glass type, thickness, and means of support called for in the plans are not detailed. In the absence of appropriate detail, neither Mr. Scalera nor the building officials would be able to determine whether the plans came up to standards. The plans do not appear to comply with the requirements for buildings in a V-20 zone, (16 feet elevation), in that: They are on compacted fill contra to the code, (changed in the second plans) The sewage and waste water control is not designed through the use of plumbing drawings, and The structural integrity of the building appears to be beyond the architect's responsibility area. Many structural designs for moment connections and joints are improper or uncalculated. In Scalera's opinion,; these designs should have been done by an engineer, not an architect. Turning to the second, (November) set of plans, Mr. Scalera also believes these are not of a sufficiently high standard to inform the user properly. The documents do not clearly and accurately identify the design of all segments to which they relate. The drawings have lent themselves to a lack of continuity. The plans appear to be detrimental to the client because the project, based on these plans, could not be bid accurately and the actual cost would exceed competitive bidding by a large margin. They are also detrimental to the public at large because the building has the definite potential for failure under stress conditions. Taken together, in Mr. Scalera's opinion, the Respondent has not conformed to the standards for the practice of architecture in Florida, and has been negligent. He believes the structural components are not incidental to the plans but are of paramount importance, and, in his opinion, Respondent was not competent to design the structural components used herein. Mr. Geisler and Mr. Bertram both pointed out that they had worked with the contractor selected to build the structure in issue here and he was familiar with their way of doing things which would lead to a better job even if not all detail was contained in the plans. Mr. Scalera discounts that contention, stating that the fact that the architect had worked with a particular contractor previously would not justify his putting less detail in his plans than would be required in plans to be used by a contractor not familiar with the architect. This is accepted and so found. Many of Mr. Scalera's conclusions were supported by the testimony of Mr. Power, a licensed structural engineer, who described the Kuttner residence as "a very unusual steel skeleton and wood constructed building." Mr. Power examined the property and the drawings and found the latter to be inadequate to make an evaluation of the superstructure. Nonetheless, he felt the plans were inadequate for several reasons. In less detail than that utilized by Mr. Scalera, he opined that: The details of the superstructure as to wind loads were inadequate. The column to footing anchorage details were less than as he would wish, but he was unable to form an opinion as to whether they were adequate. He did point out, however, that there were no details available on those areas of the project related to resistance to lateral wind loads, and those details are required because wind exerts pressure in the form of lift on the top of the roof; uplift on the bottom of the roof; uplift from under the building; and pressure on the windward side of the building as well as suction on the leeward side. Mr. Power points out that the requirements applicable here indicate that the design must provide for the structure to sustain a 10 foot wall of water driven by 110 mile per hour winds, as well as the impact of the wave and debris pileup on the pilings. Mr. Power also points out that one way of resisting wind load is through duplication, and in his opinion, the detail as to that in these plans is insufficient. With regard to the tie downs, designed to hold the roof to the structure, the detail provided calls for a particular type of commercially produced joinder. Power's calculations indicate that the type of joinder called for in the plans is inadequate in that the clip called for is inadequate to hold the roof under the conditions possible. Another of Mr. Power's concerns deals with the indications for lateral bracing on the outside wall of the mezzanine floor, where he felt the bracing was inadequate, and the failure to provide specifications for such is a defect. Mr. Power also reviewed the plans in regard to the adequacy of the floor beams, and concluded that the floor beam on line 2 from grid line B to D was inadequate under dead and live gravity loads. The beams themselves are not properly braced, and appear grossly inadequate when subjected to lateral wind load. Further, the beam on line B, from 2 to 4, at elevation 26' 3 3/4", and the beam on line B from 6 to 8 at elevation 30" 3 3/4", are inadequate because the are adjacent to openings in the floor. Mr. Power concluded that the plans do not comply with the FEMA requirements for a zone V-20 location because they fail to provide the required safety called for in the building codes. The steel columns which are 6 x 9 would be insufficient even if details for the moment connection were provided, and they were not. The provision of the other beam, which is much stronger, as was claimed by Mr. Geisler in his testimony, would make it safer. Nonetheless, he believes the design in these plans, as they relate to beams and columns, would be inadequate to withstand the code specified wind loads in either direction. In substance, Mr. Power is of the opinion that Respondent's initial and revised plans here are not of sufficiently high standard to inform the users of the requirements intended; they do not clearly and accurately indicate the design of all essential parts of the work to which they refer; and, as drawn, may well be detrimental to the client and the public at large. According to Mr. Power, when the Respondent signed and sealed these plans, he assumed responsibilities for them as submitted, and could not rely on any supplier or contractor to make changes which would rectify an otherwise unacceptable situation. Here, Mr. Power believes that the standard of practice, as it relates to structural design only, as contained in the plans in issue, was not met by the Respondent. Admittedly, this analysis is based upon review of the plans only, and if he could see the specifics of the project, it might change his opinion on the adequacy and safety of the superstructure. It would, however, not change his opinion as to the adequacy of the plans. Respondent points out that his plans had a note requiring shop drawings and the steel joist and concrete reinforcing people submitted them. They were reviewed by Respondent and he feels that they complied with his instructions and with the standards of the practice in Florida. Mr. Power admits that shop drawings are very common and almost all buildings are built through the use of these drawings in addition to the architect's plans. Shop drawings are used to establish dimensions so that prefabricated elements can be constructed, and to indicate to the designer that what is on his drawings was understood. Shop drawings do not bear the seal of the professional, and it must not be overlooked or forgotten that the responsibility in architecture lies with the architect's seal, not the shop drawings. In Mr. Power's opinion, what the Respondent accomplished here was not at all consistent with what Power has seen as acceptable practice in the profession. In defense of his plans, Respondent pointed out that he has designed several properties for FEMA locations in Florida in both the V zone and the A zone. He has worked with structural steel components on at least two occasions, and in his opinion, his design of the superstructure on the Kuttner house complied with FEMA requirements. Respondent also claims his plans provided for column to footage anchorage at S-2. All steel joists were to be fully welded to develop maximum moment resistance and to create a rigid frame. The plywall insert panels were designed to carry a wind load sufficient to resist deformation in their plane, and the floor joists were designed to resist wind deformation in the horizontal plane. According to Respondent, an expert in soils analysis did borings of the soil on the site and recommended the type and size of the footings, and here, Respondent called for the use of a 12 inch instead of a 10 inch piling. Both the Respondent and Mr. Kuttner are of the opinion that the complaint in this case was initiated by one of Mr. Kuttner's neighbors, an architect himself, who wanted to design the Kuttner residence. When Kuttner refused, this neighbor allegedly took umbrage and resisted the project down the line. When Respondent designed the superstructure, he claims to have considered the wind effect as outlined by Mr. Power, but did not specify the thickness of glass to be used since it was not required. Where the plans call for welding steel joints at S-2, this appears to conform to AISE standard practice. The plywood walls were to serve as a diaphragm to counter wind effect. The framing and connections for those is found in the plans at PA-4. Bolts at 48 inches on center at the bottom plane are called for with studdings to be tied in there and plywood attached in accordance with the undetailed standard nailing pattern set out in the building code and known to all certified contractors. He admits that his plans did not specify a nailing pattern at the truss joinders, but he claims they did not have to. This is not necessarily so if the plywood is being used to address lateral wind load. Admitting that the requirements for nailing patterns is incorporated into the building code which governs all construction and compliance with the code is required by all contractors, Mr. Power nonetheless feels that the nailing pattern is dependent upon the load to be supported and that determination should not be left up to the contractor, but should be specified by the architect in the plans. This would seem to be a logical and supportable position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that by Final Order of the Board of Architecture, the Respondent, Charles F. Geisler, be reprimanded, be assessed a total administrative fine of $1,000.00, and be placed on probation for a period of two years under such terms and conditions as may be prescribed by the Board. RECOMMENDED this 14th day of August, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Aministrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6934 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. Accepted and, as appropriate, incorporated herein. Accepted and incorporated herein. -11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13.-15. Accepted and incorporated herein. 16. Accepted as it states Mr. Bertram prepared all with the Exception of S-1 and S-2, but rejected as it implies Respondent did not work on the other with Bertram or assume responsibility for his work. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. 8.- 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected in that the first plans did not comply with stated requirements. Accepted as to Respondent's contentions without conceding the detail, specifications, and requirements were adequate. Rejected. Scalera's objections went to the professional quality of Respondent's work. As an expert, his testimony is accorded same weight. Irrelevant. & 20. Accepted. Accepted. Finding for Respondent on this point. Not a Finding of Fact but merely a statement of the allegation. Respondent's courses in the area of structural engineering appear to be no more than a normal architectural student takes. This issue was resolved against the Respondent. Accepted but not controlling in light of the evidence on the effectiveness and weight of shop drawings. Accepted but irrelevant to the issue of quality of quality of performance. See 22. Rejected. Accepted and treated herein. Rejected. 30.- 33. Accepted and incorporated herein. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 S. Sterling Street, Suite 201 Tampa, Florida 33609 Stanley Marabel, Esquire 1800 Second Street, Suite 715 Sarasota, Florida 34236 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Ard Executive Director Board of Architecture 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
The Issue Whether one or more of the following penalties should be imposed on Sylvia Allen: revocation or suspension of Ms., Allen's practice, imposition of an administrative fine and/or any other relief that the Petitioner deems appropriate?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against registered roofing contractors in the State of Florida. Sylvia V. Allen is, and has been at all times material hereto, licensed as a registered roofing contractor in the State of Florida. Ms. Allen holds State of Florida license number RC 0046666. Ms. Allen was at all times material hereto the qualifying agent and the President of Lakemont Construction, Inc. of Park 20 West, 1250 Blountstown Highway, 1236-C, Tallahassee, Florida. In early 1987, Ms. Allen submitted a bid to the Department of General Services (hereinafter referred to as the "Department") for the reroofing and waterproofing of the National Guard Armory building (hereinafter referred to as the "Armory") located in Winter Haven, Florida. The bid submitted by Ms. Allen was for $96,536.00. The Department accepted the bid submitted by Ms. Allen and entered into a contract with her on March 31, 1987. Because the contract price was less than $100,000.00, no bond was required to be posted. On April 20, 1987, a notice to proceed/mobilize was issued by the Department to Ms. Allen. On or about April 29, 1987, Ms. Allen mobilized. Work on the project began on May 11, 1987. The first work performed on the project pursuant to the schedule of work to be performed was the removal of the existing roof and the placement of a temporary roof on the Armory. On May 20, 1987, Ms. Allen submitted a pay request to the architect for the project, Mr. Shafer. This request was forwarded to Thomas Berley, a project director for the Department. Mr. Berley received the request on May 26, 1987. Upon receipt of the request, Mr. Berley notified Mr. Shafer that Ms. Allen needed to provide the Department with a bar chart showing work progress on the project before the pay request could be processed. Efforts were then begun to try to locate Ms. Allen to inform her of this requirement. Mr. Berley was informed by Mr. Shafer that Ms. Allen could not be located. Therefore, Mr. Berley telephoned Ms. Allen's place of business in Tallahassee. Her telephone had been disconnected. Mr. Berley instructed another project director of the Department located in Tallahassee to go the Respondent's office. Mr. Berley was advised that no one was at the office. Ms. Allen's subcontractors were contacted in an effort to reach Ms. Allen. Mr. Berley was informed that the subcontractors could not locate Ms. Allen either and that no contact had been made by them with Ms. Allen since May 26, 1987. Mr. Berley received a copy of a June 2, 1987, letter from Mr. Shafer to Ms. Allen requesting that she contact him. On June 4, 1987, Mr. Berley sent a letter to Ms. Allen advising her of obligations and giving her seven days to indicate why she was not on the job. This letter was sent certified mail and was signed for on June 11, 1987. Work on the project stopped during early June, 1987. A third and final letter seeking to contact Ms. Allen was sent to Ms. Allen but was returned unopened. Because of the failure of Ms. Allen to contact the Department or the project's architect and because of concerns about the ability of the temporary roof to prevent water damage, the contract for reroofing the Armory was terminated at midnight, June 14, 1987. The concerns about the ability of the temporary roof to prevent water damage to the Armory were legitimate concerns. A temporary roof is only intended to keep water out for a short period of time. Work on the project should not have been stopped while the temporary roof was on the Armory. Failure to pay the pay request would not justify Ms. Allen's actions. On June 16, 1987, Ms. Allen contacted Mr. Berley by telephone. Mr. Berley notified Ms. Allen that the Armory contract had been terminated. On June 19, 1987, the Department received a proposal to finish the project using Ms. Allen's subcontractors. The cost of completing the project was $8,000.00-$9,000.00 more than Ms. Allen's bid price. Leaving a temporary roof on the Armory for three weeks was excessive. Once work began on this project, the work should have proceeded continuously until the new roof had been completed. While the temporary roof was on the Armory excessive damage could have occurred resulting in structural damage as well as cosmetic damage. Ms. Allen's actions constituted abandonment of the job. Ms. Allen's actions also constituted incompetence in the practice of contracting. Ms. Allen has previously been issued a letter of guidance from the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Sylvia V. Allen be found guilty of having violated Sections 489.129(1)(k) and (m) , Florida Statutes. It is further RECOMMENDED that Ms. Allen be required to pay an administrative fine of $2,500.00 to the Petitioner. DONE and ENTERED this 1st day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 1st day of December, 1988. APPENDIX Case Number 88-1997 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 6-7. 5 8-9. 6 10. 7 11. 8 Hereby accepted. 9 12-13. 10 14. 11 15. 12-13 16. 14 6. 15 17. 16 19. 17-18 20. 19 18. 20 19. 21 21. 22 22. 23-24 23. 25 24. 26 Irrelevant. 27 25. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Sylvia V. Allen 110 Dixie Drive, D2 Tallahassee, Florida 32304 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent violated Sections 489(1)(d),(j) and (m), Florida Statutes?
Findings Of Fact At all times relevant Respondent was licensed as a registered residential contractor in Florida and held license number RR0046781. Sometime in late April, 1985, Respondent entered into a contract with Mr. Reames. The contract called for Respondent to build a house at 1512 S.E. 24th Avenue, Ocala, Florida. Mr. Reames moved into the house on December 23, 1985, after a certificate of occupancy was issued, even though the house was not fully completed. Mr. Reames completed a "punch list," consisting of an undetermined number of items which needed to be completed, and asked Respondent to complete the items. Most items in the punch list were never completed by Mr. Huey. After the initial attempt by Mr. Reames to get Huey Construction Co. to complete the items in the punch list, Mr. Reames did not contact Huey Construction Co. about the other problems found subsequently. In March or April, 1986, Mr. Reames noticed that the wood floor was buckling and separating. He contacted Mr. Gassett, the person who had installed the floors, who determined that a water leak was causing the problem. In November, 1986, Mr. Reames hired Mr. Clyatt, a licensed general contractor, to inspect the house, to go over the punch list items which needed to be completed, and to correct other items which were discovered to be inadequate. In the first week of January, 1987, Mr. Norton, the chief building inspector for the City of Ocala, was asked by Mr. Reames to inspect the house. Mr. Norton found a number of problems and identified some violations of the City of Ocala Building Code (Code) which was in effect at the time the house was built. The inadequacies, problems and code violations found by Mr. Clyatt and Mr. Norton are set forth below. Ventilation The Code requires 1 sq. ft. of opening for each 150 sq. ft. of crawlspace, in order to provide ventilation. Since the house had 2720 sq. ft. of crawlspace, it needed 18 sq. ft. of openings. The house, however, had only 6 openings of 1 sq. ft. each, or 6 sq. ft. of openings. Additionally, the plans for the house indicated where the openings were to be located and the completed house did not meet the plan specifications in this area. Mr. Clyatt added 15 openings, 8 in. by 12 in. each. In addition to the inadequate openings, one area of the crawlspace was completely enclosed, with no ventilation. The Code requires that attic ventilation for this type of house be 1 sq. ft. of opening for each 300 sq. ft. of space. The plans called for 3 in. by 12 in. vents at 24 in. intervals. The openings in the house were approximately 2 in. in diameter and were placed sporadically. From a visual inspection, without taking actual measurements, the openings for attic ventilation were inadequate and did not provide the ventilation required by the Code. Roof The roof of the house contained exposed nails and staples on the shingles, including some which had rusted. Nails and staples should not be exposed on a shingle roof, since they can lead to leaks. The roof leaked in one area in the back of the house. Mr. Reames contacted H & B Roofing, the subcontractor who had installed the roof, who corrected the problems with the roof. Driveway The Code requires that a driveway permit be obtained prior to the installation of a driveway. Also, the Code requires an inspection of the driveway prior to the concrete being poured. Respondent obtained the required permit, but failed to call for the required inspection prior to pouring the concrete. By letter dated December 10, 1985, Respondent notified the Building Inspection Office of the City of Ocala that the driveway was poured according to the Code. By the time of the inspections by Mr. Norton and Mr. Clyatt, several cracks were present in the driveway. SubFloor Due to the water damage set forth in paragraph 5, supra, the wood floor was removed in late December, 1986 or early January, 1987. The plans originally called for the subfloor to be constructed of one-half inch plywood decking, particle board, and 15 lb. felt paper. However, the Code requires subfloors to be constructed using three-quarter inch plywood, and the plans contained a penciled in notation where the one-half inch was changed to eleven- sixteenths. The subfloor had been constructed using one-half inch CDX plywood decking with particle board on top. No felt paper had been used. Additionally, the subfloor had been nailed in violation of the Code. The Code requires nails to be spaced two and one-half inches on the perimeter of the plywood and four inches in the interior area of the plywood. The subfloor of the house contained boards which had only been nailed on the perimeter and boards which had a large number nails in one area, far in excess of the amount required by the Code. Girders When Mr. Clyatt inspected the house he discovered that approximately 6 of the wood girders supporting the floor appeared to have been cut short and, instead of bearing on the stem wall bearing plate, were supported by posts made of two-by-four and two-by-six non-pressure treated lumber. The posts were resting on soil and the bottom part of the posts had decayed. This construction is a violation of the Code which requires that pressure treated wood be used, and is a violation of construction standards which require that the girders rest on the bearing plate or on concrete. See Petitioner's Exhibit 6. Also, the girders supporting the wood floor were not resting directly on the block piers. Wood shims had been added to fill the space between the girders and the block piers. The wood shims were not pressure treated. The Code requires that pressure treated wood be used in this situation. Additionally, proper construction requires that the girders rest directly on the block piers. Foundation Wall A foundation wall was not bearing on the footing properly. The foundation wall was constructed of 8-inch block and portions of the wall had only one to two inches bearing on the footing; the rest of the wall was resting on the soil. This is a violation of the Code. This problem was corrected by Mr. Clyatt by removing the soil on which the wall rested and pouring concrete under the wall. See Petitioner's Exhibit 7. Cabinets The cabinets in or near the utility room area of the house were loose and separating from the soffit and the wall.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent and imposing a fine of $1500.00. DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 October, 1988. APPENDIX Case Number 88-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. Accepted. RO2. Accepted. RO3,4. First sentence, Accepted RO7. Second sentence accepted for proposition that Mr. Reames paid Mr. Clyatt $30,000 for work done on the house. However, the evidence fails to establish what portion of this amount was paid for problems caused by Respondent. 5-10. Accepted generally as to what Mr. Clyatt observed. RO19,20. But see discussion in Conclusions of Law portion of this RO. Accepted. RO13. Accepted generally. RO14. Respondent was not asked to repair the shingles when this deficiency was discovered about one year after Respondent had ended work on the house. First sentence rejected. Second sentence, accepted R016, but no competent substantial evidence was presented to show what caused the cracks. Accepted generally as to what was observed. RO22. But see discussion in Conclusions of Law portion of RO. Accepted. RO18. Accepted. RO18. Accepted. RO21. Accepted. RO21. Accepted. RO10,11. Accepted. RO10,11. Accepted. RO17. Accepted. RO12. Accepted. RO12. Accepted. RO15. Accepted. RO15. Accepted. RO8. Respondent's Proposed Findings of Fact Respondent's post-hearing statement consists of a two page letter with attachments. The attachments have been addressed in the Background section of this Recommended Order. The proposed findings of fact contained in the letter are addressed below. References are to paragraphs and sentences within each paragraph. Proposed Finding of Fact Number Ruling and RO Paragraph Par. 2 RO2 establishes that a contract existed; no finding is made as to whether the contract was oral or written, or as to what the contract amount was. Par. 3 First sentence is not supported by the evidence. Second sentence, accepted. Third-Fifth sentences rejected as not supported by competent evidence; however, no finding is made as to who is at fault for this problem. See Conclusions of Law. Fifth sentence is not a finding of fact. Par. 4 Not a finding of fact. Par. 5 (References are to statements after each number in the paragraph) #8 is accepted generally. RO15. #9 rejected as not supported by competent evidence. #10 rejected as not supported by competent evidence; some of the allegations were proven to exist as set forth in this RO. #11 and 12 are not findings of fact. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert D. Huey 3710 Southeast 12th Place Ocala, Florida 32670 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
