Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 12th day of April 1984.
Findings Of Fact Roger Newbold was employed by Allen Electric Company, Inc., as a laborer working on its contract with the State. Newbold was employed during two different periods. The first time was prior to January 1, 1977, and the second, from March 13, 1977, to May 22, 1977. The addition to the Polk County Correctional Institution was bid in two phases; the first for heavy construction for site preparation, and the second, the actual building construction. Allen Electric Company, - Inc., had a contract from the general contractor during the first phase to install the main electrical distribution facilities on the site. All of this work was not associated with and carried on prior to the commencement of building construction. The heavy construction was in progress during Newbold's first period of employment with Allen Electric Company, Inc. Allen Electric Company was also a subcontractor with Delta Electric Company on the second phase of construction; however, Allen Electric Company did not do any building construction. They subcontracted with Delta to install secondary distribution lines and perimeter fence lighting on the site. See Delta Electric Company contract, late filed exhibit No. 7. Allen Electric Company did not go into the building with their workmen because their contract called for them to stop five (5) feet outside the building with the secondary distribution lines. All work and wiring done from this point into the building was carried on by Delta Electric. Newbold's job during his entire employment with Allen electric was to dig ditches and lay conduit. The conduit runs then were reinforced with concrete poured over reinforcing steel. During his entire employment, he was involved in digging the necessary ditches, setting the reinforcing rods, and pouring the concrete. The rate for heavy construction laborers under wage rate 398-W filed as a portion of late filed exhibit No. 7 was three dollars and thirty-six cents ($3.36) per hour. The wage rate for laborers working on building construction pursuant to wage rate 397-W also filed as a portion of late filed exhibit No. 7 was six dollars and fifteen cents ($6.15) per hour. Wage scale 397-W specifically states that it is applicable to nonresident building construction. All of the skills listed on the wage rate apply specifically to building construction except the general term "laborer." The record shows that the work done by Allen Electric Company, Inc., in the building construction phase was the same type of work undertaken by Allen Electric in the heavy construction phase. In both phases, Newbold was engaged in exactly the same duties. Newbold did not work on building construction but on laying conduit for secondary distribution systems and perimeter lighting systems during the second phase. All of this work took place outside of the building.
Recommendation The Hearing Officer recommends that the claim of Roger Newbold be dismissed by the agency. DONE and ENTERED this 5th day of 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marvin Woods, Esquire 440 S. Florida Avenue Post Office Box AR Lakeland, Florida 33801 David A. Perry, Esquire Corporate Officer Allen Electric Company, Inc. 1271 LaQuinta Drive Orlando, Florida 32809 Mr. Luther J. Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive Fast Tallahassee, Florida 32301
Findings Of Fact The Respondent is a registered mechanical contractor having been issued license number PM 0031251. The Petitioner is an agency of the State of Florida, charged with regulating the practices of contractors, administering and regulating their licensure status, and enforcing the legal requirements of Chapter 489, Florida Statutes, and appertinent rules. In the late summer of 1980, the Respondent, d/b/a Reach Services and Supply Company, entered into a verbal contract with one Harvey Smith to install an air-conditioning and heating unit in Mr. Smith's residence located at 610 Outer Drive, Milton, Florida. The contract was for approximately $1,245. The Respondent failed to obtain a permit from the City of Milton for the installation of those units at Harvey Smith's residence until after the installation was essentially completed. The building inspector for the City of Milton, Anthony Thompson (testifying for the Petitioner), inspected the premises on or about October 31, 1980, and found several violations of the building code of the City of Milton, to wit: (a) the furnace was installed too close to the wall of the house (less than the required six inches); (b) a cut-off valve for the gas supply line was not installed; (c) a weather-proof disconnect device was not installed at the furnace unit and the furnace was not wired on a separate electrical circuit from other residential electrical equipment. The building inspector notified the Respondent concerning these deficiencies immediately after the inspection. The Respondent ultimately reinstalled the furnace, on February 12, 1981, so that it did comply with the minimum distance required between the furnace and the structural walls. The Respondent failed, however, to return to the job and otherwise complete the installation and correct the remaining deficiencies after several requests by both the owner and the building official, Mr. Thompson. Through his own efforts, the owner of the residence, Mr. Smith, eventually had the installation of the furnace completed in August of 1981. In the fall of 1980, the Respondent installed a furnace at 613 Outer Drive for Mr. Frank Moss, which was inspected by the same inspector on or about December 23, 1980. The clearance between the furnace and the structural wall of the residence in this instance was also insufficient, which can cause a significant risk of the structural wall igniting due to the heat generated by the furnace. There was no cut-off valve on the gas supply line installed within six feet of the furnace (as required by Section 302.1 of the Standard Gas Code). No disconnecting device was installed on the unit such that the wire was connected directly to the unit contrary to the requirements of Section 801 of the Standard Mechanical Code. Finally, a permit was not obtained for the installation of the furnace at all, as is required by Section 104 of the Standard Mechanical Code. During late 1980, the Respondent contracted for and installed a heating and air-conditioning system at 206 Berryhill Road, Milton, Florida. On or about January 12, 1980, the building official, Mr. Thompson, inspected the installation. A cutoff valve had not been installed within six feet of the furnace, ducting was improperly supported, and the furnace was located below the adjacent ground level. The ducts were not properly taped, nor was a proper type of wire used to wire the related electrical receptacle. The vent for the furnace did not extend the minimum required distance above the roof of the dwelling. No light outlet was installed in the furnace area. These deficiencies were, respectively, contrary to the requirements of Section 302.1, Section 504, Section 303.2-5(b), Section 506 and Section 511, Section 303.2-5(d) of the Standard Mechanical Code, and of Sections 302.1 and 507.3 of the Standard Gas Code of the City of Milton, Florida. During late 1980, the Respondent contracted for and installed an air- conditioning and heating system at 405 Ravine Street, Milton, Florida for Mary Beth Williamson. Once again, on January 12, 1981, Mr. Thompson inspected that installation at which time the following deficiencies existed: insulation was improperly installed, there were holes in the "air plenum" and improper caulking. Once again no gas cut-off valve was installed and the wiring was improperly installed and not weather-proofed. These installations were not performed within the requirements of Section 511 of the Mechanical Code (1978 revision) and Section 302.1 of the Standard Gas Code. The Respondent ultimately repaired or corrected the various deficiencies with regard to the 405 Ravine Street installation and established that the inspection for that particular installation had been prematurely called in by his son, his employee, and that the job was not yet ready for inspection at the time the inspection was mistakenly requested. Further, during the periods of time in question in the fall of 1980, the Respondent was ill with a serious heart ailment. He was consequently unable to be present at each job for an adequate period of time to fully supervise the installation, as he has done before and after the period of time in question. Since 1981, the Respondent has established a record of cooperating with the City of Milton Building Department and there have been no more recent violations.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered finding the Respondent, Abe L. Newsome, guilty of four violations of Section 489.129(1)(d) and (k), Florida Statutes (1979), and one violation of Section 489.129(1)(m) and that a $400 fine for each of the five violations be imposed. DONE and ENTERED this 29th day of February, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1984. COPIES FURNISHED: John O. Williams, Esquire BOYD, THOMPSON & WILLIAMS 2441 Monticello Drive Tallahassee, Florida 32303 Abe L. Newsome 612 Highway 90 West Milton, Florida 32570 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Rochep, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a registered roofing contractor should be disciplined for the reasons set forth in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Raymond D. Simmons, was licensed as a registered roofing contractor having been issued license number RC 0055320 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed as a roofing contractor since November 1987. The Board's official records reflect that on July 1, 1991, the license was placed on the delinquent status for non-renewal and is now considered "invalid." 1/ When the events herein occurred, respondent was the qualifying agent for Simmons and Sons Plumbing and Roofing, Route 1, Box 191 (County Road 225), Waldo, Florida. Except for this action, there is no evidence that respondent has ever been disciplined by the Board. On May 3, 1988, respondent submitted a proposal to Charles and Thea Ansman to repair the roof on their home located at 5132 N. W. 29th Street, Gainesville, Florida. With minor modifications, the proposal was accepted by the Ansmans on May 10, 1988. According to the agreement, respondent was to perform the following services: Tear off old shingles dry-in with 15 lb. felt and replace with Corning Owens 20 year fungus resistant shingles. Replace all plumbing stacks and ease drips. Will replace back porch with 3-ply build-up roof will coat it with roof coating 10 year warranty on workmanship 20 year manufactor [sic] on shingles and build-up roof. Will replace all wood that needs to be replaced. Although the agreement does not specifically refer to ridge vents, the parties also agreed that respondent would install a ridge vent on the home. On May 16, 1988, respondent made application for a building permit from the City of Gainesville to "reroof" the Ansman's home. The permit was issued on May 20, 1988, in the name of Simmons & Sons Plumbing and Roofing. Respondent commenced work on the project on May 16 and continued the work over a period of several days. During this period of time, respondent was frequently on the job site overseeing the work. Indeed, Thea Ansman said respondent was at her home approximately half of the time while the repairs were being made. Thus, while respondent undoubtedly supervised the job, for the reasons stated in findings of fact 6 and 7, he nonetheless failed to "properly" supervise the work. On May 20, 1988, Thea Ansman paid respondent in full for the work. Although the job was not finished, respondent told Mrs. Ansman he would return the next day to complete the work. When respondent failed to return, the Ansmans repeatedly telephoned him during the next few months, but respondent either refused to speak with the Ansmans or told them he would return within a few days. However, the work was never finished and respondent never returned to the job site. While inspecting the roof one day, Charles Ansman noted that the roof trusses, an intregal part of the load bearing capacity of the structure, were cut at their peaks. The depth of the cuts was between one and two inches and was apparently the result of a saw-blade not set at the proper height when the ridge vent was installed. Sometime in July or August 1988 Charles Ansman discussed the damage with respondent and requested that respondent repair the same. Respondent refused to do so on the ground he was not responsible for the damage. Ansman then filed a complaint with the City of Gainesville Building Department. On September 9, 1988, a city building inspector inspected the home and confirmed that virtually every truss was cut and that the integrity of the roof was in jeopardy. He also observed that the soffits were improperly installed in some cases, and in others, were missing altogether. A notice of violation was then issued by the city on October 3, 1988, charging respondent with violating the Standard Building Code in two respects. More specifically, it was charged that respondent's workmanship violated sections 1701.1.1 and 1708.2.1 of the 1985 Standard Building Code, as amended through 1987. These sections pertain to the quality and design of wood trusses and the design of trussed rafters, respectively. At a hearing before the city's Trade Qualifying Board, respondent admitted his workers had violated the cited sections and caused the damage to the trusses. However, respondent denied liability on the theory that the workers, and not he personally, had negligently damaged the house. Respondent was thereafter issued a letter of reprimand for his actions. In order to recover their damages, which included the replacement of all damaged trusses, the Ansmans filed suit against respondent in Alachua County small claims court. On April 18, 1989, they received a judgment in the amount of $1,050. The judgment was eventually satisfied but only after the Ansmans threatened to levy on respondent's real property located in Alachua County. In preparation for the suit, the Ansmans obtained an engineering report which corroborates the findings made by the city building inspector concerning the damage and negligence on the part of respondent's work crew. By allowing the work to be performed in that manner, respondent was incompetent and committed misconduct in his practice of contracting. However, there is no evidence that respondent was grossly negligent during his supervision of the job. Respondent did not appear at hearing. However, prior to hearing he spoke to the city building inspector and acknowledged that the roof trusses were damaged as the result of negligence on the part of his crew. He also admitted this during the final hearing on the small claims action. At the same time, he denied that his workers had ever touched the soffits. This assertion, however, is rejected as not being credible.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, recommended that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987), and that he pay a $1000 fine and his license be suspended for one year. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991.
The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact The Respondent, David R. Oldham, is a registered architect in the State of Florida, holding license no. 5786. The original date of his registration is August 31, 1972. The Respondent's license is presently in a probationary status. He is a self-employed architect. The Petitioner is an agency of the State of Florida charged with regulating the practice and the practice standards of architecture and architects in Florida, pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 481, Florida Statutes. COUNTS I & II Pursuant to a written contract entered into July 10, 1980, and signed on July 14, 1980, the Respondent agreed to provide architectural services to one "William D. Buck or "Bill Buck" for additions and alterations to his automobile dealership known as Bill Buck Chevrolet, Inc., located at 2324 South Tamiami Trail, Venice, Florida. The contract provided for the preparation of various plans and construction documents preparatory to construction of a new service building of approximately 5,000 square feet area, with additions and alterations to the existing office area of approximately 800 square feet, and the relocation of an existing inspection facility to provide for two entrance and exit lanes to automotive service-bays. The contract called for two service stalls to be depicted in each of four service-bays in the new building for a total of eight service stalls. A roof was to span across the driveway connecting the existing structure with the new service building to be constructed pursuant to the plans. The contract required Respondent to prepare a site plan, floor plans, elevations and necessary sections, details and schedules in order to permit the owner, Bill Buck, to invite bids and construct the project. The Respondent undertook to provide a set of plans from which he and his contractor could build the entire project. The Respondent prepared the plans for Mr. Buck and they were given to contractor David Malcolmson. Mr. Malcolmson suggested that the building be changed from a metal building to a concrete block structure because it could be built cheaper and faster. Mr. Buck agreed to that change and the Respondent made changes to his drawings to indicate that the type of construction had shifted from metal to masonry. The new building was ultimately constructed as a single story structure consisting of a poured concrete monolithic floor slab- footing, with filled masonry concrete block walls and a prestressed concrete slab roof. The Respondent prepared and issued a nine sheet set of plans, dated December 22, 1980, for the additions and alterations to the Chevrolet dealership. All nine sheets in this set of plans were signed and sealed by Respondent and ultimately filed with the Sarasota County Building Department. These plans are known hereinafter as the "permit set." On December 23, 1980, the contractor applied for a building permit, and on January 12, 1981, the building department issued the permit authorizing construction in accordance with the permit set of plans, signed, sealed and prepared by Respondent. The permit set of plans contained the entire specifications for the project, and the entire specifications filed with that building department. During construction, Mr. Buck himself, became concerned about the integrity of the foundation of the building. He questioned his contractor, Mr. Malcolmson, about the strength of the foundation since he knew that the type of construction had changed from metal to the prestressed concrete and concrete block structure having a substantially greater weight. At or near the completion of the construction, various cracks were observed in the walls and floors which caused a great deal of concern to Mr. Buck. He requested an inspection from the building department, and the building inspector became concerned upon seeing the cracks and asked the contractor to have an expert investigate and determine whether a serious structural problem existed. Thus, prior to issuance of a certificate of occupancy by the building department, the contractor hired Ardaman and Associates, Inc. (Ardaman), a firm of consulting engineers, to test the foundation. On June 1, 1981, Ardaman inspected the wall and foundation system of the new building and issued a report to the contractor in the form of a letter. (See Petitioner's Exhibit 16) Ardaman had discovered a crack in the floor slab running parallel to the north wall about three feet away from that wall extending the entire length of the building. The crack was found by Ardaman to be a "stress-relief" crack caused by settlement of the monolithic foundation. The foundation was loaded and tension stress was transmitted to the top of the slab causing a tension failure (crack) in the concrete slab. Ardaman's test revealed that the soil under the wall and foundation had a bearing capacity of 3,000 pounds per square foot. The plans themselves had envisioned a 2,000 pound per square foot allowable soilbearing load. Indeed, the soil pressure compression was ultimately 5,285 pounds per square foot actual load from the weight of the building. Ardaman additionally noted two vertical cracks in that wall attributed to temperature changes. Ardaman thus recommended packing concrete under the existing foundation to prevent undermining or eroding of the soil under the foundation, since the foundation was actually above grade. The existing foundation supporting the north wall was only a half-inch from the adjacent property line, and was above the adjacent grade by 3 to 12 inches. This is a potentially serious condition since it allows erosion of the soil under the foundation and undermining and a resulting collapse of the wall could occur. The building official from the county recommended that the contractor excavate and then backfill the excavation under the foundation with concrete to bring the lower edge of the footing down below grade level to take care of possible erosion problems. Erosion could remove some of the bearing soil from under the foundation. With that recommendation, on July 14, 1981, the building department issued a certificate of occupancy. On August 26, 1981, at the request of the building contractor, Ardaman made an additional inspection of the facility. On August 27, Ardaman informed the contractor and the building department that no new conditions were observed at the site, but described for the first time the rotation of the footing which could cause concomitant rotation of the wall (leaning). Ardaman measured the movement of the foundation system and found that the footing had rotated or tilted approximately three-fourths of an inch to one inch at the point of the wall's contact with the footing. This could cause rotation of the wall which would decrease the bearing area of the prestressed roof slabs or beams bearing and supported by the top of the wall. On November 4, 1981, the building department notified the contractor of its concern that the problem with the service building had not yet been resolved. The building department was concerned that because of footing or wall rotation, a loss of roof slab bearing area might have occurred and that necessary correction should be made. Because these corrections had not yet been made, the building department recommended that occupancy be discontinued until corrections could be made to the structure. On December 15, Ardaman urged the contractor to complete the following items of remedial work: To underpin portions of the foundation, originally constructed below grade, to increase the safety factor and to comply with the Southern Standard Building Code minimum cover requirement; To retain a professional engineer to design an auxiliary bearing system that would prohibit significant wall rotation, as the wall had already rotated .085 inches in 8.0 feet; and To fill floor cracks and wall cracks. Ardaman's recommendations and findings of deficiencies regarding the structure were put in a letter filed with the building department and entered into evidence as Petitioner's Exhibit 19, corroborated by testimony of the building official, Mr. Light. It was thus established that the design of the addition to Bill Buck Chevrolet, Inc., did not comply with appropriate building code requirements related to foundation and upgrade. On approximately February 4, 1982, the attorney for Bill Buck retained Mr. William Snell, P.E., a consulting engineer. Mr. Snell was retained to review the project to determine if serious problems existed in the design or construction. Vertical cracks were observed in the north wall on both the inside and outside surfaces. Several feet inside the building a long crack parallel to the north wall had developed in the four-inch concrete floor slab. By this time, Ardaman's recommendation to pack concrete under the north footing to prevent erosion, had already been performed. The building department still had reservations about the integrity of the building. Recent measurements for instance had revealed that the north wall was leaning three-eighths of an inch north at the ceiling line. Mr. Snell reviewed a blueprint copy of Respondent's permit set of plans. This permit set of plans contains nine sheets (eight architectural and structural sheets and one electrical sheet). They contained no topographic survey and no building elevations are depicted. Mr. Snell's written opinions regarding the project are contained in his letter of February 15, 1982, in evidence as Petitioner's Exhibit 20 and his letter of February 17, 1982, to the building official, in evidence as Petitioner's Exhibit 21. Additionally, Mr. Snell was accepted and testified as an expert witness in structural engineering at the hearing. Mr. Snell described the project as consisting of the new service building which abuts the adjacent common property line on the west side of the property on which the building was built. The west wall of the service building is one-half inch from that property line. The building contains a series of service-bays containing a total of eight maintenance stalls next to that common property line. The building also has waiting rooms and office space. Between the original existing Bill Buck Chevrolet building and the new service building addition is a drive-through structure for cars which consists of a paved drive covered by a roof made of prestressed concrete "double-t's". One of the problems extant on the face of the plans is that they contain a number of details left over from the original steel building design before it was decided to change to a masonry structure. Changing from the steel to masonry construction added considerable weight to the structure because a precast concrete roof deck is considerably heavier than a metal building roof deck as are masonry walls compared to sheet steel walls and steel columns, etc. The change from steel to masonry as the construction mode is significant in at least two ways: First, the change created confusion in understanding tie plans. Some steel details in the plans have been voided yet others are still on the plans creating an apparent inconsistency. For instance, Sheet 2 shows steel columns and overhead framing lines, "H sections" and pipe columns, all steel components used for metal building construction. Sheet 8 still shows some walls as "non- block." Other sheets, however, such as Sheets 4 and 5, indicate only masonry for the walls. Sheet 8 indicates some steel details explicitly voided, yet others, as on Sheet 2, are only partially erased so that "ghost images" or vestiges of the "steel plan" remain. Further confusion is shown by the inconsistency between the "ghost images" on Sheets 2 and 8 which show the "H" columns and pipe columns on Sheet 2 reversed on Sheet 8. The Respondent obviously was not conscious of the impact of the change from the steel to masonry mode throughout the set of drawings. Secondly, the change from steel to masonry is significant because the additional weight was not adequately provided for structurally. Some of the structural supports for a steel building were erased, yet the remaining thickened edge floor slab was not redesigned to provide an adequate foundation for masonry. In essence, the foundation is inadequate with the great weight of the masonry construction placed on top of it. In reality, the mere thickened edge on the floor slab does not constitute an adequate footing or foundation, based on Mr. Snell's analysis of the downward loads on the foundation. The footings were eccentrically loaded by being on the edge of the foundation instead of centered. The forces exceed both the 2,000 pounds per square foot allowable soil bearing pressure that is depicted on Sheet 8 of the plans, and the 3,000 pounds per square foot that the Ardaman firm reports as acceptable soil pressure. The soil pressure compression found by Mr. Snell was 5,285 pounds per square foot. Thus, the footings were shown to be considerably overloaded, causing the thin four-inch floor slab to crack, and then to rotate, carrying the wall in rotation with it when soil eroded out from underneath it due to the footing being installed originally above grade level. The building was dangerously overstressed as designed, and should have been dismantled or strengthened by placing new footings and piers under supporting steel beams to take the roof load off the overloaded, common property line wall. Additionally, the plans depicted no "book" specifications and made no note of the proper concrete strength to be used nor the degree of compaction of soil required. They depicted no design loads for the roof, floor, nor for wind. No roof framing plans were provided and the Respondent did not adequately depict the roof span over the driveway and failed to exercise due care in drafting the roof span. The Respondent never developed a "so-called Section E-E" referred to on Sheet 3 of the plans. Nowhere in the plans were any support beams over the service stall doors shown and no reinforcement for this area was depicted. No reinforcement was specified for the concrete block wall piers between the service stall doors of the building. The east wall of the structure with its series of wall piers between the service-bay doors is actually more severely loaded than the west side of the building where the cracking occurred. The cracking occurred on the west side, however, because erosion of soil from under the foundation aggravated the problem of excessive load on the foundation. The load on the east wall of the structure, however, is 29,000 pounds per square foot for the wall piers, which also are merely sitting on the thickened slab, as is the west wall. Additionally, the Respondent failed to require a topographic survey and failed to make a grading and drainage plan for the site. The property is characterized by a downward gradient towards the west wall, and therefore, if there had been a topographic survey, the Respondent could have designed a "stepped-down" foundation to keep the foundations below grade. The Respondent, however, failed to do this, which resulted in the foundation for the west wall being above grade with the resulting erosion problems. Additionally, no crack control or expansion joints were provided for in the plans for the wall where Ardaman Engineering found the temperature cracks. After examining the plans and the building, Mr. Snell concluded that the plans were seriously deficient and that the building, as evidenced by cracking and exceptional deflection of structural members, was in a failing condition, with a total collapse being conceivable. Mr. Snell filed a complaint with the Petitioner and informed the building department on February 23, 1982. On that date, on the basis of Mr. Snell's report, the building officials suspended the certificate of occupancy. On that date the building official requested that the Respondent submit complete structural calculations, to which the Respondent never replied. After the certificate of occupancy was suspended, Mr. Snell prepared drawings for structural repairs and another contractor was retained to obtain a repair permit for the building. Thus the project was ultimately structurally corrected, and on June 14, 1982, the building department reinstated the certificate of occupancy. The Respondent never asked for any site information, topographical or otherwise from the owner, Mr. Buck, and the contractor, Mr. Malcolmson, had to establish the floor elevation for the new building. The Respondent contends that he issued the permit drawings without the topographical and grade information because Mr. Buck indicated that an engineer would separately furnish all required site information. The fact remains, however, that the Respondent allowed the drawings to be issued from his office without the grade and topographical information, thus signing, sealing and submitting an incomplete set of plans to his client. Mr. David Titsch is a registered architect and was accepted as an expert witness in the field of architecture on behalf of Petitioner. He established that it is customary for an architect to require an owner to have a topographic survey performed. The architect's responsibility is to see that the survey is performed so that he may use that information to design the project and adequately prepare drawings. If an architect requests his client to provide such information and the client or owner fails to do so, the architect should proceed no further. It is a departure from reasonable and prudent architectural practice to allow drawings to be signed, sealed and issued as final plans from an architect's office which do not depict grade information. It is particularly important to show grade information for adjacent property when proposing an addition to a structure that will abut on a property line, as in the instant situation. In addition to the failure to depict site grade, the Respondent failed to illustrate floor elevations, simply drawing a floor slab at an undetermined elevation which put the burden on the contractor to estimate where to put the floor of the building. Serious loading problems on the footing along the west property line were demonstrated based upon Mr. Titsch's calculations, as well. It is a design error to put a ten-inch deep "floating slab" foundation along a property line. This type design is insufficient because it creates a hazard along the property line where there could be erosion of the supporting soil and where the architect, contractor and the owner cannot control what use the adjacent property owner might make of his property, which could have the effect of undermining the slab-type foundation. In fact, the slab was constructed above grade and the monolithic slab footing became exposed when a washout occurred on the adjacent property. Additionally, the span over the driveway was excessive and structural support for the roof slab (24-inch "double T" prestressed concrete members) was inadequate. The foundation and vertical structural support was simply not designed to carry that load, and the span of the roof over the driveway area was bordering on failure. No beams were depicted supporting the wall and roof sections over the garage door openings. Thus, the contractor was left to guess, once again, as to how to support the building above these openings. In light of these deficiencies, Mr. Titsch opined that the plans depart from acceptable principles of professional architectural practice and could not result in a sound, safe building. Mr. Robert Dykes, AIA, testified as an architectural expert for Petitioner. Mr. Dykes reviewed the permit set of plans and testified concerning his expert opinion regarding the deficiencies appearing on the face of the plans. Thus, it was established, as to Sheet 1, the site plan, that the floor paving and site heights are not indicated, the water, sewer, electric and phone services are not shown, and the drainage for storm water is not indicated. The present and proposed buildings are poorly dimensioned. On Sheet 2 the thickness of walls and vertical reinforcing are not shown. The east-west dimensions do not correctly "add up." On the floor plan depicted on Sheet 3, the vertical structural steel is not shown in the garage stall areas. On Sheet 4, the foundation, a small rectangle is depicted, assumed to be the location of vertical reinforcing steel, but it is not shown in other floor plan depictions, rendering the various sheets inconsistent. Footing requirements for the front wall of the stalls are not depicted. On Sheet 5, the front elevations and southwest elevations of the main office area are not clear as to the span condition at the driveway between both buildings (roof span), nor is the vertical height of the front elevation and exterior building material illustrated. On Sheet 6 the type of concrete block to be used is not clearly indicated, and once again, solid rectangular squares are shown on this sheet to possibly indicate vertical reinforcing, but the exact meaning of these depicted squares was not described and they are not consistent with the foundation plan. Structural reinforcing requirements between and over the overhead doors are not indicated. On Sheet 7 the wall sections are not clear as to the sizes of the concrete beams, the reinforcing requirements and the "double-T" members and flat slab details. The wall sections are further shown to be inadequately drawn because they do not depict connection details between the flat slab and the steel or concrete beams. As to Sheet 8, no requirements for vertical reinforcement are shown and the original plans drawn for a metal building application have not been sufficiently modified to depict an adequate, safely- supported, precast concrete roof system. Finally, Sheet 9 regarding the electrical plan, does not provide any concrete information regarding the type of light fixtures, wattage, electrical circuits, air conditioning voltage or panel board locations. Mr. Dykes opined that the building failed structurally and was unsafe as designed and built. COUNT III On July 26, 1982, the Respondent signed a stipulation in DOAH Case No. 83-809, agreeing to pay a sum of money to former clients, Herman Chait and Ann R. Chait. The sum of $1,500, plus $26.55 costs, represents a judgment entered against the Respondent in favor of the Chaits by the County Court in and for Sarasota County. Pursuant to the terms of the stipulation, the Respondent was to pay that amount in equal monthly installments over a period of 15 months, during which time the Respondent would be placed on probation by the Board of Architecture until the amount was paid in full. On September 28, 1982, the Board of Architecture entered a Final Order, incorporating in its entirety the stipulation signed by the Respondent. The final payment of the amount referred was due on December 28, 1982. On February 22, 1984, an order finding probable cause was entered by the Secretary of the Department of Professional Regulation for the Respondent's violation of the stipulation. At the instant proceeding the Respondent admitted that he had signed the stipulation, that he had not paid the amount, and that the time limit for payment had expired. The Respondent also admitted receiving two letters from Petitioner's counsel as well as a telephone call reminding him of his obligation to pay the Chaits and the possibility of automatic suspension of his license for failure to pay. His sole defense is that his personal and financial circumstances did not permit him to meet that obligation, although he acknowledges that it is due and he intends to eventually pay it.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent, 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
