Findings Of Fact Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981, and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each. PLANS CHANGE After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.) At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation. STOP WORK ORDER ENTERED On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated: Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved. All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date. While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work. For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4 (A)(B). Petitioner's Exhibit No. 5. The following day, Mr. Pariser wrote Mr. Cowley, as follows: In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and 304.4 is invalid. We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . . Respondent's Exhibit No. 16. Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows: I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code. After meeting with your architect, Mr. Bryan, I propose the following solution. The stop work order will remain in effect for Construction only, i.e. steel re-inforcement, concrete, etc. could not be placed. Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming. If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15. To this, Mr. Pariser responded the following day with this letter: In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81. There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns. Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card. My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance. If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19. On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981. STOP WORK ORDER VIOLATED By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light. STRUCTURAL PROBLEMS In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981. SHORING ORDERED On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated: I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings. Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10. A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied: I am in receipt of your letter of May 7, 1981, please be advised that even though Raben-Pastal is respecting your wishes as to the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6. In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley: I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound. We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8. Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name: Per your instructions requiring 4 post shores to be placed around our columns on building C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5. During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser. FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling. If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall. On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic], Mr. Thomas and I made an inspection of the above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81. Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order. YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END. ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION. Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11. To this letter Mr. Fowler replied, also on May 15, 1981: Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th. It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation. As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab. However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it? Respondent's Exhibit No. 10. The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building. Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T. 306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony. Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated. The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler. LOAD TEST As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled. LAWYERS' MISUNDERSTANDING Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted. That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact. Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode. BUILDER'S ENGINEER STOPS TEST Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.) SECOND STOP WORK ORDER ENTERED On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued: With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9 of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued. During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr. Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12. By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981. On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six months. DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 September, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, the Respondent, Victor S. Davis, held a registered general contractor's license, numbered RG 0013635 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board in April, 1973. At all times material to these proceedings, Respondent's general contractor's license, number RG 0013635, was in a delinquent status and had been in a delinquent status since July 1, 1977. Respondent failed to renew his license after June 30, 1975 but in May, 1976 made application to reinstate license number RG 0013635 which was approved and reinstated on an active status by Petitioner in May, 1976 and issued to Respondent, Victor S. Davis, qualifying Conch Construction Corp., of Key West, Florida. There was no evidence that the reinstated license was issued for Monroe County, Florida or that Respondent ever held a certificate of competency for Monroe County, Florida. At all times material to these proceedings, Respondent was an officer (Secretary) of Classic Marketing and Development, Inc. (Classic). On July 28, 1983, the Respondent, as Secretary of Classic, entered into a contract with William Dees to construct a shell home on the Dees' property located at Lot 14, Block 7, Breezeswept Estates, Ramrod Key, Florida for a contract price of $27,000.00. On September 13, 1983, William Dees applied for and obtained building permit No. 10902-A as owner/builder for the construction of the Dees's home. Construction of the Dees home began on or about September 13, 1983. Gregory H. O'Berry, President of Classic had knowledge of, and approved of, Respondent entering into contracts for construction of homes in Monroe County, Florida, including the contract with Dees. O'Berry was aware that Respondent did not hold a certificate of competency in Monroe County, Florida and that Respondent's registered general contractor's license did not cover contracting in Monroe County, Florida. O'Berry understood that Phillip A. Braeunig, a properly licensed general contractor in Monroe County, Florida, was acting as the general contractor for Classic- in the construction of homes by Classic, including the construction of the Dees home. Braeunig did not act as general contractor on the construction of the Dees' home. Respondent supervised the contraction of the Dees' home, until Respondent abandoned the construction of the Dees' home, and in performing these supervisory duties fulfilled the responsibilities of a general contractor. No other officer or authorized agent of Classic had any responsibility for the supervision of, or acted in any manner as a general contractor, in the construction of the Dees' home. Braeunig prepared and submitted to Respondent an application to qualify Classic with Petitioner using Braeunig's license but this application was never filed with Petitioner during- anytime material to these proceedings. Classic was never qualified by anyone, including Respondent or Braeunig, at any time material to these proceedings. Braeunig~acted as general contractor for Classic on the Conti home, which was in the beginning stages of Classic and prior to the Dees' job. Braeunig was brought into Classic for the purpose of acting as general contractor because of the Respondent's invalid license.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Count I of the Amended Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondent guilty of the violation charged in Count II of the Amended Administrative Complaint and for such violation it is RECOMMENDED that the Board suspend the Respondent's registered general contractor's license for a period of two (2) years and assess the Respondent with an administrative fine of $500.00, stay the suspension and place Respondent on probation for a period of two (2) years, provided the Respondent pays the $500.00 fine within ninety (90) days. Respondent's failure to pay the $500.00 fine within the time specified will result in his registered general contractor's license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license. Respectfully submitted and entered this 3rd of December, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1985. APPENDIX Department of Professional Regulation, Construction Industry Licensing Board v. Victor S. Davis, Division of Administrative Hearings Case No. 85-1963 Ruling on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1 except for the statement that "Respondent's license was issued for Okaloosa County only" which is rejected as not being based upon competent substantial evidence. Hearsay alone is not sufficient to support a finding of fact. Adopted in Finding of Fact No. 1 except for statement that "said license has been delinquent since July, 1981" which is rejected as being contrary to the evidence in Petitioner's Exhibit No. 1 which shows delinquent status as of July 1, 1977. Adopted in Finding of Fact No. 3. Rejected as a conclusion of law rather than a proposed finding of fact. Considered as background information and not as a finding of faet. Adopted in Finding of Fact No. 4. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact Nos. 4 and 5. Adopted in Finding of Fact Nos. 5 and 7. Adopted in Finding of Fact No. 5. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 6. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of Fact No. 9. Adopted in Finding of feet No. 10 Adopted in Finding of Fact No. 10 Rejected as a conclusion of law rather than a proposed finding of fact. Respondent did not submit Proposed Findings of Fact. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202 Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Victor S. Davis 2169 North Hercules Avenue Clearwater, FL 33575 and 6290 Sandcrest Circle Orlando, FL 32819
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed as a contractor by the Florida Construction Industry Licensing Board. His license for the 1979-1981 license period had not been renewed at the time that the hearing was conducted, and he was therefore delinquent. [This finding is determined from Petitioner's Exhibit 1.] During June, 1977, the Respondent entered Into a contract with Emily D. Wohanka and Ruby Sue Dennard. Ms. Wohanka and Ms. Dennard, who are sisters, agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a single-family dwelling on the lot. The parties agreed to an addendum to the contract during July or August, 1977. The addendum included some specifics with respect to construction and provided: Home will be complete and ready for occupancy within a reasonable period of time--normally three to five months. [This finding is determined from Petitioner's Exhibits 8 and 9, and the testimony of Wohanka and Jordan.) The lot which Ms. Wohanka and Ms. Dennard purchased was not cleared until December, 1977. No progress on construction was made during January or February, 1980. The Respondent obtained a building permit from the City of Satellite Beach, Florida, on February 20, 1978. Construction work commenced in either March or April, 1978. By June, 1978, Ms. Wohanka became concerned that work was commencing too slowly. She told the Respondent that she needed to move in by the end of July. Respondent told her that it was probable that construction would not be completed until mid-August. By September, the project was still not completed. Ms. Wohanka tried to reach Respondent by telephone, but he would not return her calls. She tried to locate him at home, but no one would answer the door. She complained to the building official in the City of Satellite Beach, but the building official had similar problems reaching the Respondent. Ms. Wohanka also complained to N. M. Jordan, the real estate agent who had negotiated the contract. Ms. Jordan was able to locate the Respondent, and the Respondent told Ms. Jordan that he could not complete the project because he was losing money. In late September or early October, Ms. Wohanka and her sister located the Respondent at his home. The Respondent was just walking out of the front door when they arrived. The Respondent told them that he could not discuss the matter, that he had turned it over to Ms. Jordan, and that he was not a part of it anymore. [This finding is determined from Petitioner's Exhibits 2 and 3; and from the testimony of Wobanka, Hijort, and Jordan.] When Ms. Wohanka contacted the Respondent in late September or early October, no work had been done on the project for at least a month, and the house was not completed. Light fixtures, appliances, and air conditioning had not been installed. Cabinets and other fixtures were stored in a bathroom. Inside doors had not been installed. Flooring was not completed. No sidewalks or concrete driveway had been constructed. There had been no landscaping or sodding, and the sprinkler system had not been installed. The plumbing was not operational. Ms. Wohanka contracted with a new builder to complete the project. She was able to move into the residence on December 28, 1978, but work was not finally completed until late January, 1979. Additional expenses beyond those agreed to by the Respondent were incurred by Ms. Wohanka. The Respondent had drawn on a construction loan; but, there is no evidence in the record that the Respondent used these funds for any purposes other than the construction of the dwelling. [This finding is determined from the testimony of Wohanka.] During July, 1977, the Respondent entered into a contract with James and Eleanor A. Lawrence. The Lawrences agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a duplex dwelling on the lot. The Respondent obtained a building permit from the City of Satellite Beach on February 22, 1978. Unknown problems developed, and the project was not being completed. The Satellite Beach building official had difficulty locating the Respondent, but he was ultimately assured by the Respondent that the project would be completed. The Respondent told the realtor who negotiated the contract, Ms. Jordan, that he could not complete the 3 reject because he was losing money. The Lawrences did not testify at the hearing, and specifics regarding their relationship with the Respondent are not known. It is not known whether the Respondent abandoned the project uncompleted without notifying the Lawrences, or whether some agreement was made between them regarding completion of the project. There is no evidenced that the Respondent diverted any funds from the project. [This finding is determined from the testimony of Hjort and Jordan.] No building codes from the City of Satellite Beach were received into evidence. There is no evidence in the record from which it could be concluded that the Respondent violated any provisions of the building codes in either the Wohanka or Lawrence transactions.
The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
Findings Of Fact Petitioner is the state agency charged with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455, and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent James J. Hastings was licensed as a certified general contractor in the State of Florida, holding license number CG C009847. At all times material hereto, Respondent was a qualifying agent for Hastings Construction Company, Inc. Respondent and Candace Reinertz are married. At all times material to the violations charged, she was operating under her maiden name for all purposes. At all times material hereto, Candace Reinertz was not licensed by the Florida Construction Industry Licensing Board, and the Respondent had knowledge thereof. Over several years, Ms. Reinertz regularly assisted Mr. Hastings in the operation of Hastings Construction Company, Inc., including day to day supervision of pool, small building, and house construction and pulling building permits for that corporation. She had been authorized in writing by Hastings to pull building permits for him on specific projects (not necessarily in a corporate name) at least since April 27, 1987. At all times material hereto, Castles `n' Pools, Inc., 205 Third Avenue, Melbourne Beach, Florida, was a firm that was not qualified with the Construction Industry Licensing Board, and Respondent had knowledge thereof. This corporation was intended to become a venture to be run jointly by husband and wife. Castles `n' Pools, Inc. had been qualified as a corporation with the Florida Secretary of State and had received an occupational license. The corporate officers/directors were Reinertz and Hastings. However, a Florida Construction Industry Licensing Board License was never applied for by Ms. Reinertz in her own name nor was one applied for by Mr. Hastings as a qualifier for Castles `n' Pools, Inc. On June 27, 1987, Castles `n' Pools, Inc., through Candace Reinertz, contracted with Zimmer Dominque for construction of a pool at Mr. Dominque's residence located at 866 Van Circle, N.E., Palm Bay, Florida, for $7,750. The contract promised completion of the pool by September 23, 1987, barring adverse weather and mishaps. It is Ms. Reinertz's testimony that she inadvertently filled in a Castles `n' Pools, Inc. blank contract when she intended to use a Hastings Construction Company blank contract. The blank forms are, indeed, very similar. Mr. Dominque's testimony is that he thought at all times that he was contracting with Castles `n' Pools, Inc., through Ms. Reinertz. Although he admits that at least by September 22, 1988, he considered Respondent in charge of the project and that he thereafter dealt directly with Respondent, Mr. Dominque's payment by checks made out to Castles `n' Pools and/or Candace Reinertz dated June 27, July 7, September 22, and September 24, 1987 (P-10) support a finding that all work to that point was progressing in the name of Castles `n' Pools. Also supportive of such a finding is that on July 6, 1987, Pyramid Equipment Service billed Castles `n' Pools for digging the hole for the pool (R-8) and on August 11, 1987, R & J Crane Service billed Castles `n' Pools for setting the pool in place (R-9). However, the issuance of the building permit to Hastings Construction Company, Inc. and the chronology of how the permit came to be issued (see infra.) suggest that Mr. Hastings did not know about the Castles `n' Pools connection until at least late September. Respondent's and Ms. Reinertz' testimony that Respondent did not find out that the wrong contract had been used until after construction was underway on the Dominque property is unrefuted and the exact date of his discovery was not demonstrated, but he admits he did not attempt to qualify Castles `n' Pools once he found out. On June 29, 1987, the Respondent authorized Candace Reinertz to pull a permit for the construction of a pool at Mr. Dominque's residence. The authorization, (P-12), does not specify either Castles `n' Pools nor Hastings Construction Company, Inc. as the construction corporation applicant. Ms. Reinertz's subsequent permit application was denied on July 2, 1987, by the Palm Bay Building Department, for failure to include a survey certified by a civil engineer or architect. The record does not reflect in what corporate name Ms. Reinertz made this initial application. She may not even have gotten as far as filling out a permit application before she was refused at the permit desk, but the line drawing prepared for that application (R-1) specifies that the line drawing was that of Hastings Construction Company, Inc. Mr. Hastings regularly did line drawings for Hastings Construction Company, Inc. projects on a particular machine in that corporation's offices. The certified survey requirement was a recent innovation of the Palm Bay Building Code. On July 6, 1987, Castles `n' Pools, Inc. delivered the prefabricated fiberglass pool, excavated the site and dropped the pool in the hole. No further efforts of permanent installation occurred at that time, due to failure to obtain a permit. A dispute then ensued between Hastings and Reinertz on one side and Mr. Dominque on the other over who must provide the survey and how. This dispute occasioned some delay in the project, but on July 26, 1987, Ms. Reinertz again applied, with a certified survey, to the Palm Bay Building Department for a permit for the construction of Mr. Dominque's pool, listing the builder as Hastings Construction Company, Inc. (P-5). On July 30, 1987, permit number 8702101 was issued by the Palm Bay Building Department for the construction of Mr. Dominque's pool by Hastings Construction Company, Inc. (P-6). Thereafter, work on the pool progressed sporadically until September 22, 1987, when the pool floated up out of the ground. The pool floated up out of the ground during a rainstorm and after Respondent had left Mr. Dominque with instructions to fill the pool to a certain level with water. There is sufficient evidence to demonstrate that Mr. Dominque failed to follow Respondent's directions with precision. Subsequent to September 22, 1987, the pool was reinserted in the excavation by crane and by October 2, 1987, the deck was installed. Two or three months later a crack appeared in the pool which has since been repaired, however, the drain and light still do not work properly, and Mr. Dominque had to pay an additional $50 for cleanup of the resulting debris. Some of the delay in completion of work on the pool can be attributed to the dispute about the survey, some to injury of a key employee, and some to heavy rains, but the testimony of Mr. Nasrallah, architect and expert contractor, is accepted that 30 to 45 days would be sufficient to install the entire pool except for the pool deck even in rainy weather. Also, Mr. Dominque's and Respondent's testimony is in agreement that Respondent (not Ms. Reinertz) was fired for a period of time and then rehired. The length of time and the dates that Respondent was off the job is unclear, but it was minimally from September 9 to September 22, 1987. Oversight of the work at all times was by the Respondent. Mr. Dominque has paid the total contract price of $7,750 and expressed himself that any amount he questioned has either "evened out" or been paid back by Respondent. Stan Alexander is a certified general contractor and former chairman of the Florida Construction Industry Licensing Board. In his expert opinion as a contractor, construction began when the hole was first dug on July 6, 1987 and the pool was placed in it even temporarily. Also in his expert opinion as a contractor, Mr. Alexander determined that the contractor responsible for the installation of this pool was guilty of gross negligence or incompetence due in part to the insufficiency of dewatering devices (including a hydrostatic device) and placement of the responsibility to fill the pool on the home owner. Mark Nasrallah is a registered Florida architect and a licensed general contractor. Also in his expert opinion as a contractor, construction began on the job when the pool was placed in the excavation. It is also Mr. Nasrallah's expert opinion that the contractor responsible for this job is guilty of gross negligence or incompetence. Although Mr. Alexander was unfamiliar with any local Palm Bay zoning or permitting provision which would allow "site clearing" prior to excavation/construction, and although Mr. Nasrallah considered it "questionable" whether the digging for the pool constituted "construction without a permit," Mr. Nasrallah's assessment that digging the hole and putting the pool in the hole even temporarily was in excess of mere site clearing and was work which clearly began construction is accepted. Section 103 of the Standard Building Code has been adopted by the City of Palm Bay. It provides as follows: A person, firm or corporation shall not erect, construct, enlarge, alter, repair, move, improve, remove, convert, or demolish any building or structure in the applicable jurisdiction, or cause the same to be done, without first obtaining a building permit for such building or structure from the Building Official. Respondent was disciplined by the Construction Industry Licensing Board in October, 1984, for violation of Sections 489.129(1)(c), (g), (j); 489.119(2), (3); and 455.227(1)(a) Florida Statutes.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violations of Sections 489.129 (1)(d) and (m) Florida Statutes, issuing a letter of guidance with regard to the permitting violation, fining the Respondent $750.00 for gross negligence or incompetence, and dismissing the remaining two charges. DONE and RECOMMENDED this 23rd day of November, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 23rd day of November, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-5172 The following constitute rulings pursuant to s. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: Accepted in FOF 1. Accepted in FOF 2. Accepted in FOF 3. Accepted in FOF 5. Accepted in FOF 7. Accepted in FOF 8. 7-8. Accepted and expanded to more accurately reflect the record in FOF 10 9. Accepted in FOF 11. 10-11. Accepted and expanded to more accurately reflect the record in FOF 12. Accepted and expanded to more accurately reflect the record in FOF 13. Accepted in FOF 14. 14-15. Accepted in part and rejected in part in FOF 15-17. The modifications are made to more accurately reflect the record as a whole, the specific expert opinion as given by Messrs. Alexander and Nasrallah (discussed in the Conclusions of Law) and to reflect that some hydrostatic devices were used, some removed, and at least one left in for a period of time. 16. Accepted in FOF 19. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James J. Hastings 205 Third Avenue Melbourne Beach, Florida 32951 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
Findings Of Fact Respondent is a certified general contractor holding license number CG C008351. Respondent obtained Osceola County Building Permits and agreed to help property owners construct improvements or additions to four motels located in Osceola County, Florida. (Testimony of Record, Popesco, Matay, Solms, respondent.) Specifically, on January 29, 1980, respondent pulled Osceola County Building Permit ("building permit") No. 364-80B to construct the Record Motel, an 11-unit motel owned by Frank B. Record. On March 17, 1981, respondent pulled building permit No. 694-81B to construct a five-unit addition to the Record Motel; on January 30, 1980, he pulled building permit No. 2613-80B to add eight units to the Lakeview Motel owned by Michael Popesco; on February 2, 1980, he pulled building permit No. 2996-81B to construct a 20-unit motel known as The Key Motel, owned by Reinhold Matay; on April 8, 1981, he pulled building permit No. 3087-81B to construct a second floor addition to The Key Motel; and on March 2, 1981, he pulled building permit No. 3038-81B to construct a 20-unit motel known as the Siesta Motel, owned by Herbert Solms. (Stipulation dated June 30, 1982.) II. Respondent had a similar working arrangement with each motel owner, none of whom were licensed contractors. As the general contractor, he pulled the necessary building permits. He would perform the carpentry work on each project. The owners actively supervised and participated in their building projects. After consulting with respondent, they solicited, selected, and awarded bids to electrical, masonry plumbing, paving, and drywall subcontractors. They paid subcontractors directly and supervised their work daily. Respondent, however, would inspect the job sites intermittently, usually on weekends, sometimes during the week. But he did not directly and actively supervise the subcontractors; some were even unaware that he was the general contractor for the job. (Testimony of Record, Popesco, Matay, Solms; P-3, P- 10.) No evidence was presented to establish that the owners, for compensation, constructed these improvements for others or for resale to others. All the buildings were constructed in a satisfactory manner. The buildings passed all inspections, and the owners are entirely satisfied. (Testimony of Record, Popesco, Matay, Solms, respondent.) The owners of the various motels did not act as "contractors" within the meaning of Section 489.105(3), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against respondent be dismissed. DONE and RECOMMENDED this 14th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR., 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 14th day of October, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent James W. Geary presently holds certified general contractor's license number CG C005775. Respondent Geary apparently entered into a contract with Phillip Smith to add a screened porch to the Smith residence. Neither the contract nor the testimony of Mr. Smith were made available to the undersigned Hearing Officer. Respondent had difficulty obtaining a roofer and completion of the project was therefore delayed. During the interim, the interior of the Smith's living room suffered water damage. After receiving a complaint from the Smiths, Mr. Robert Jahn, Chief Building Official for the City of Tamarac, personally inspected the Smith project. He found that the water damage was caused by the uncompleted work of respondent and certain violations of the Southern Florida Building Code. Jahn did not know how long the project had not been worked on, but Smith told him he had tried for about one month to get respondent to return to correct the situation. Respondent testified that when he sent a man to the Smith residence to install the roof columns, Smith chased the man off the job. Upon the delivery of certain supplies for his projects, respondent Geary, d/b/a First Triangle Corporation, wrote two checks in the total amount of $391.41 payable to Rinker Materials. (Exhibit 1) These checks were offered for payment by Rinker, and were returned due to insufficient funds. The former credit manager of Rinker Materials did not know whether anyone from Rinker had contacted respondent about the checks. Respondent testified that no one from Rinker had informed him that the checks were dishonored. However, respondent did receive notice from his bank that the checks had been returned. He was changing banks about the same time and felt that the bank had made mistakes in the past. He felt that the checks were good when issued and he therefore did not put much reliance upon the notices received from the bank. Respondent testified that he is ready, willing and able to honor the checks written to Rinker Materials. Respondent Geary apparently entered into a contract with Richard Decker for the addition of a five by eleven foot bathroom to the Decker's residence. Neither the contract, the plans or specifications nor the testimony of Mr. Decker were offered into evidence at the Hearing. Respondent felt there were no deviations between the finished product and the job specifications, and that, even if there had been, there was no way he could put a five foot vanity into the project without violating the applicable building code. The field investigator for petitioner's District No. 10 found deviations from the plans with regard to the size of the vanity, the bathroom door and the illumination. He found that the Deckers had not indicated their approval of such deviations by placing their initials on the plans or specification. The South Florida Building Code (302.2(b)) provides that when the cost of a job is over $5,000.00, the permit applicant must present plans signed and sealed by a registered architect or engineer. A larger permit fee is also required for jobs costing over $5,000.00. On or about April 9, 1976, respondent Geary applied to the City of Tamarac for two building permits. (Exhibit 2). While blueprints were submitted, no plans signed and sealed by a registered architect Or engineer were submitted. From the square footages contained on the right hand column of the application, Chief Building Official Jahn determined that the value of the two projects were $7,300.00 and $6,620.00. The contract prices for these projects were approximately $8,000.00 and $10,000.00. There was no conclusive testimony as to who supplied the footage information on these applications, It was respondent's opinion that the actual costs of these projects did not exceed $5,000.00. Respondent apparently entered into a contract with Daniel Salzman for some project, and then entered into a second contract for the construction and installation of a fence and a trellis. For this second project, respondent received a deposit of $825.00. The first job was never completed by respondent and respondent never began work on the fence and trellis project. Respondent admitted that some $500.00 was due Mr. Salzman as a refund for the second project. He testified that he instructed Mr. Salzman to have the work on the first project completed by someone else and then to send respondent the bill for the same. Respondent has not heard from Salzman regarding this matter. By letter dated November 20, 1976, Chief Building Official Jahn notified respondent that "No further building permits [would] be issued to First Triangle Builders with you as their qualifier because of numerous complaints and unfinished projects." As indicated in the Introduction, petitioner filed an administrative complaint against respondent seeking to revoke his license for violations of certain ordinances and Florida Statutes S468.112(2). The cause was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, as well as the seriousness of the offenses of which respondent has been found guilty, It Is recommended that respondent's certified general contractor's license number CG C005775 be revoked. Respectfully submitted and entered this 18th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (488-9675) Area Code 904 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. James W. Geary 4370 Northwest 32nd Court Lauderdale Lakes, Florida Wallace Norman Construction Industry Licensing Board 305 South Andrews Avenue Ft. Lauderdale, Florida 33301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 8621 JacksonvIlle, Florida 32211
Findings Of Fact At all times relevant hereto, respondent, Jerry A. Jennings, held certified general contractor license number CG C020766 and certified residential contractor license number CR CO2OO84 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has held the licenses since June, 1981 and February, 1982, respectively. Then the relevant events herein occurred, Jennings was operating a construction business under the name of Quality Control Construction in Port St. Lucie, Florida. He now resides in Casselberry, Florida and is no longer active in the construction business. Respondent formed Quality Control Construction (QCC) in January, 1981 and operated under that name as a subcontractor doing interior trim work on condominium projects in the Port St. Lucie, Florida area. Respondent did not qualify QCC with the State. In May, 1982, Jennings met with the project manager for Riverside Associates, Limited (Riverside), a development firm in Fort Pierce, Florida, and agreed to serve as general contractor and construction coordinator on a Riverside project in Fort Pierce. The job involved the renovating of an old three-story structure known as the Fort Pierce Hotel into an office building. The agreement was entered into by Riverside and respondent doing business as Quality Control Construction. Jennings applied for and obtained all applicable building permits on the job using his state contractor's license. Under the terms of the agreement Riverside agreed to make payments to QCC which in turn was responsible for insuring payment to the subcontractors and materialmen on the job. The work on the project was done in phases. The first phase was completed in January, 1983 when a partial certificate of occupancy was issued by the City of Fort Pierce. Because of a cash flow problem on the part of the developer, work on the next phase did not commence until June, 1983. At that time, QCC and Jennings agreed to finish the job and Jennings obtained all applicable permits. Although Jennings claims it did not include any electrical work, it is found that the last phase included a subcontract agreement by Jennings and White Electric Company (White) for White to do all remaining electrical work for a cost of $2,994. This is evidenced by the fact that Jennings obtained a permit on July 18, 1983 to do additional structural, electrical and air conditioning work on the project, and corrobarative testimony by a representative of White. On August 9, 1983, White submitted a bill to QCC for $2,994 representing the work performed by that subcontractor. Jennings forwarded the bill to Riverside, and on August 22, 1983, Riverside cut a check in that amount payable to QCC. The check contained the notation "For Payment to White Electric." The check was deposited by QCC into its bank account the following day. When White did not receive payment from QCC it contacted Riverside to obtain payment. A representative of Riverside attempted to locate Jennings but learned he had moved and his telephone was disconnected. After some investigation, Riverside determined that respondent had moved to Pinellas County. A certified letter was sent by Riverside to Jennings in October, 1983 requesting payment of the money due White but he did not reply. In November, 1983 a Riverside representative talked by telephone with Jennings who advised Riverside that he had financial problems and used the money due White to relocate to the west coast. Respondent did not timely notify petitioner of his change in address from Fort Pierce to Pinellas County. Riverside eventually set up a payment schedule and finally fully reimbursed White in April, 1984. To date, Jennings has not repaid Riverside. Jennings now resides in Central Florida, is in the process of filing a bankruptcy petition, and does not use his contracting licenses. Jennings claimed at hearing that Riverside never fully paid him for his services and therefore he was justified in retaining the $2,994 intended for White. However, he did not file a lien on the job, made no formal demands for the money allegedly due, and presented no documentation to support the claim.
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 III of the administrative complaint and that he pay a $1,000 administrative fine. It is further recommended that his two contracting licenses be suspended for one year, but if full restitution is made to Riverside, the suspension period be reduced to thirty days. DONE and ORDERED this 2nd day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire 130 North Monroe St. Tallahassee, Florida 32301 Jerry A. Jennings 420 Copperstone Circle Casselberry, Florida 32707
