The Issue Whether Respondent committed the offenses set forth in Count I of the Administrative Complaint and, if so, the penalties which should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent was licensed by Petitioner as a certified general contractor in the State of Florida and held license number CG- C016730. At all times pertinent to these proceedings, Respondent was the qualifying agent for Bilo Homes, Inc. (Bilo), a corporation engaged in Florida in the business of general contracting with its principal place of business in Miami, Florida. At all times pertinent to these proceedings, Mr. and Mrs. Donald Huston resided at 29843 S.W. 149th court, Leisure City, Florida. On February 24, 1988, the Hustons contracted with Bilo to build an addition to their house for the sum of $20,000 pursuant to plans and specifications that had been prepared by an architect. The Hustons' existing house was valued between $30,000-$40,000. The contract called for a one-story room addition to be built on a concrete slab with stucco exterior and sheet rock interior. The addition was to have a sliding glass door and was to be connected to the existing structure by a tie beam. The roof of the existing house was to be reshingled to match the shingles on the addition. The project also involved electrical work and plumbing work. The contract was signed on Wednesday, February 24, 1988, and work began on Friday, February 26, 1988. The contract did not specify a time for the completion of the project. The following draw schedule was agreed to by the Hustons and Bilo: 20% of the contract price upon the acceptance of the contract by the Hustons; 10% of the contract price upon the pouring of the concrete slab; 10% of the contract price upon ice completion of the tie beam: 20% of the contract price upon the drying in of the roof; 10% of the contract price upon the completion of the rough mechanical work; 10% of the contract price upon ice completion of the shingling of the roof; 10% of the contract price upon the installation of the plumbing fixtures;; 10% of the contract price (the balance) upon completion of the job. The Hustons made payments to Bilo in the total amount of $14,000.00. These payments were broken down as follows: $4,000.00 paid on February 24, 1988, upon acceptance of the contract; $2,000.00 paid on March 22, 1988, upon the pouring of the concrete slab; $2,000.00 paid on April 5, 1988, upon the completion of the tie beam; $4,000.00 paid on April 18, 1988, upon the drying in of the roof; and $2,000.00 paid on June 25, 1988, upon the completion of the shingling of the roof. Before June 25, 1988, Respondent had asked the Hustons for the draw due upon completion of the rough mechanical work in addition to the draw due upon completion of the shingling. The Hustons refused to pay both draws because they were dissatisfied with the quality of Bilo's work. The Hustons engaged the services of a lawyer and, on June 29, 1988, presented Respondent with a list of items they wanted corrected before paying the draw for the rough mechanical work. Respondent and the Hustons disagreed as to when the items on the list should be corrected. Respondent contended that the items could have been corrected as part of the punch list prior to the final payment. The Hustons contended that the items should be corrected before Respondent received any further draws. This dispute is resolved by finding that while several of the items on the list could have been corrected as part of the final punch list, there were items on the list that should have been corrected by Respondent before he proceeded. Considering the very poor quality of work that went into this job, the Hustons were justified in their demand that Respondent make these corrections before receiving an additional draw. Respondent contends that the Hustons did not pay the draw for the rough mechanical work because they ran out of money. This contention is rejected as being contrary to the greater weight of the evidence. After the Hustons presented Respondent with the list and refused to pay the draw for the rough mechanical work, Bilo stopped work on the project. Bilo performed no work on the project after June 29, 1988. Prior to the work stoppage, Respondent hired K & H Plumbing as the subcontractors to the plumbing work on the Huston job. K & H Plumbing's work failed to pass a Metro Dade County tub and water pipe inspection because the work did not meet the South Florida Building Code. K & H never completed its work on the Huston addition and no final inspection of its work was approved. K & H Plumbing filed suit against the Hustons for the unpaid portion of their contract with Bilo. In addition, K & H Plumbing failed to properly replace wood decking which it had pulled up during the course of its work on the Huston job. Respondent had received funds which1 should have been used to pay K & H. Prior to the work stoppage, Respondent hired Tom Mentelos to perform the electrical subcontracting work on the Huston addition. The work performed, by Mentelos was substandard. His work failed to pass inspection by the Metro Dade County Building and Zoning Department on six different occasions. In addition to this substandard work, one of Mentelos' employees cracked the Huston's kitchen ceiling while working in the attic over the existing portion of the house. This crack was never corrected by Mentelos or by Bilo. Mentelos never completed his work on the Huston addition, although he was never fired by the Hustons. Mentelos filed a claim of lien against the Hustons in he amount of $2,000.00. The first claim of lien was released and Mentelos filed a second claim of lien against the Hustons in the amount of $2,623.00. Respondent had received funds which should have been used to pay Mentelos. Respondent obtained the roofing permit to build the new roof on the Huston addition and to reroof the existing roof. The roofing work involved a process commonly referred to as "hot mopping", a process which requires the services of a licensed roofing contractor. Respondent exceeded the scope of his licensure by engaging in hot mopping. Bilo's employees punched two unnecessary vent pipes through the roof and placed a flat piece of PVC material around the vent holes to keep the, roof from leaking. This is an improper and unacceptable construction practice. Bilo's employees damaged the existing screen porch while working on the roof. The metal flashing which connected the existing roof to the aluminum screen porch was taken off but was never replaced. As a result, the screen porch leaked, a problem that had not been corrected as of the time of the final hearing. While Bilo's employees were working on the roof of the existing structure, a rainstorm occurred which resulted in water stains to the ceiling of the Hustons' main structure. The workmen were not supervised by Respondent and were unprepared for the rain. Other than the water stains, no damage was done to the ceiling. To repair the ceiling stains would require a chemical coating, followed by repainting of the ceiling. The cost of the repair would be approximately $75.00. Bilo engaged in poor construction practice in constructing the exterior wall by facing the poorer grade side of the exterior plywood toward the outside as opposed to inside. The better construction practice is to place the poorer grade side toward the inside where it will not be exposed to view. There is a gap in the area where the metal flashing comes down the exterior side of the end gable and meets the top of the roof. In the work performed by Bilo, the piece of sheathing was above the bottom of the sill plate which caused a gap from one inch to five inches over a distance between eight and ten feet. This gap is a source of potential leaks. Bilo attempted to cover the v-notch in the area of the gag with tar pitch in an attempt to correct this deficiency. Both the gap and the attempted repair are unacceptable construction practices. Bilo had not cut vents in the soffits at the time it stopped work on the project. Without vent holes in the soffits, the job would have not passed inspection. Bilo could have, at little expense, cut the soffit vents at a later point in the job. The end member of the frame for the partition wall between the laundry room and the masonry wall is not pressure- treated wood. The South Florida Building Code requires that the wood used for the end member of such construction be pressure treated or that there be a barrier between the end member and the adjoining wall. Here, Bilo failed to exercise either acceptable option, and, consequently performed work that failed to comport with acceptable construction practices and did not meet code. The manner in which Bilo supported the timber girder that supports the roof trusses fails to meet code because the tie beam, into which this girder is pocketed for support, is improperly supported. A hole was knocked in the cement block wall that supported the tie beam when a plumbing vent was redirected. As a result of this hole, the tie beam rests on only approximately two inches of concrete, which is inadequate to support the tie beam and the timber girder. This work fails to comport with acceptable construction practices. Bilo failed to brace the roof trusses as required by the plans and specifications of the architect. This is an unacceptable construction practiced. Bilo cut into the roof truss without authority from the truss manufacturer or from a qualified engineer. Cutting into a truss can impair its structural integrity and is a violation of code. Respondent maintained at hearing that he would have been able to get approval from the truss manufacturer for the modification of the truss caused by the cut. Respondent did not have such approval as of the time of the final hearing, and there was no evidence, other than his unilateral expectation, to support this contention. The facia board on the eaves did not join properly because Bilo's workmen did not take the time to properly cut the boards with the aid of a square. Although this is a matter that could be corrected for approximately $25.00, this work, along with the other deficiencies detailed herein, demonstrates the substandard work that went into this project and establishes that Bilo failed to provide its workmen adequate supervision or adequate training. At hearing, there was a dispute as to how much time Respondent personally spent at the Huston job site. This conflict is resolved by finding that Respondent was personally on the job site for at least 30 minutes on days when work was progressing. When major items were being performed on the job, he spent more time on the job site. When minor work was being done, Respondent did not go to the job site on a daily basis. Regardless of the number of minutes or hours that Respondent spent on the job site, the conclusion is inescapable that Respondent failed to properly supervise his workmen in light of the low level of skill the workmen exhibited throughout the job. Respondent had the responsibility as the general contractor to properly supervise his workmen and his subcontractors. He failed to perform that responsibility. As of the final hearing, the Huston addition remained uncompleted. At the time of the work stoppage, it would have cost the Hustons more than $6,600 to complete the job, the difference between the contract price and the amount that the Hustons had paid Respondent. The evidence was clear that the Hustons had incurred damages as a result of their dealings with Respondent. The amount of those damages were not established with any degree of certainty. On or about July 15, 1988, Respondent filed a claim of lien against the Hustons' property claiming that Bilo was owed $8,350 for the work that had been done. Respondent has been a certified general contractor for fifteen years and has been certified as a general contractor in the State of Florida since 1980. Respondent's licensure had not been disciplined prior to the filing of the Administrative Complaint in this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated the provisions of Section 489.129(1)(h), (j), and (m), Florida Statutes, which imposes administrative fines in the amount of total amount of $5,000 for such violations, and which suspends his licensure as a general contractor for a period of six months. DONE AND ENTERED this 20th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0765 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings in Section VI (A) are adopted in material part except to the extent that the proposed findings are subordinate to the findings made. (Section VI (A) pertains to facts established through Respondent's failure to respond to Request for Admissions.) The proposed findings in paragraphs 1 2, 3, 4, 14, 15, 16, 17, 18, 21, 22, 23, and 24 are adopted in material part. The proposed findings in paragraphs 5 - 10 are adopted in material part except to the extent that the proposed findings are subordinate to the findings made or are unnecessary to the conclusions reached. The proposed findings of paragraphs 11, 19, and 25 are adopted in material part except to the extent that the proposed findings are unnecessary to the conclusions reached. The proposed findings of paragraph 12, 26, and 27 are rejected to the extent that the proposed findings are conclusions of law. The proposed findings of fact in paragraphs 13 and 20 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 13, 16, 18, 19, 27, and 30 are adopted in material part. The proposed findings of fact in paragraphs 5, 17, 20, 21, 22, 23, 25, 26, 28, 29, 30, and 32, are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 9 and 11 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are adopted in part and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraphs 12, 14, 33, 35, and 37 are rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 15 are adopted in part and are rejected in part as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 24 are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 34 are rejected as being the recitation of testimony. COPIES FURNISHED: regory A. Victor, Esquire 3225 Aviation Avenue Suite 400 Miami, Florida 33133 Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, Florida 32302 Fred Seely, Executive Director Construction Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, set forth in an Administrative Complaint signed March 3, 1987. Specifically, the Respondent is charged with having violated Section 489.129(1)(k), Florida Statutes, "by abandonment of a construction job Respondent was engaged on" and with having violated Section 489.129(1)(j), Florida Statutes, "by failure to subcontract work in violation of 489.113(3)." At the hearing the parties agreed to an amendment to paragraph 8 of the Administrative Complaint to reflect that there were two contracts, one for $15,500.00 and one for $1,491.00, for a total contractual price of $16,991.00. The Respondent also stipulated to most of the allegations of the Administrative Complaint. Thereafter, the Petitioner presented the testimony of two witnesses and offered six exhibits, all of which were received in evidence. The Respondent then testified on his own behalf and offered two exhibits, both of which were received in evidence. At the conclusion of the hearing the parties were given 30 days from the date of the filing of the transcript within which to file their proposed Recommended Orders. The transcript was filed on October 2, 1987, and the Petitioner thereafter filed a timely proposed Recommended Order containing proposed findings of fact and conclusions of law. As of the date of this Recommended Order, the Respondent has not filed a proposed Recommended Order nor any other document containing proposed findings of fact. Specific rulings on all proposed findings of fact submitted by the Petitioner are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulation of the parties, on the exhibits received in evidence, and on the sworn testimony of the witnesses at the hearing, I make the following findings of fact: Stipulated Facts Petitioner is the state agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a certified general contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number CG C031803. Respondent's address of record is in Jacksonville, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Irene McIntosh to perform certain contracting work. The contracting work generally consisted of remodeling a church. The contracts for the remodeling work were entered into on or about March 6, 1986. One contract was for $15,500.00 and one was for $1,491.00. The jobs were located in Jacksonville, Florida. Respondent's contracting business thereafter began the jobs described above. In the course of said jobs, Respondent did, himself or through his unlicensed employees, perform plumbing work. At no time relevant hereto was Respondent licensed to engage in plumbing work. The Rest of the Findings Respondent began work on the two contracts sometime during the latter part of 1985. Respondent continued to perform work on the two contracts until sometime during March of 1986. Respondent finished most of the work under the two contracts, but he did not finish all of the work he had agreed to perform. Respondent has not performed any work on either of the contracts since March of 1986. Apparently some form of dispute, the exact nature of which is not revealed in the record of this case, arose between the parties to the contract. The last time the Respondent attempted to do any work under the contracts, he was unable to do so because the locks on the premises had been changed. At about that same time, a representative of the church told the Respondent that the Respondent would not be paid any more money for work on the contracts. After being locked out of the premises, the Respondent did not attempt to contact Irene McIntosh to arrange to finish the work or to notify her that he was terminating the work. There is no evidence that Irene McIntosh attempted to contact the Respondent after he was locked out of the premises. The Respondent has not been paid the contracted amount of $1,491.00 under the second contract. If the Respondent were to be paid the $1,491.00 that is owed to him, he would be willing to finish all of the work under the two contracts. A general contractor cannot lawfully perform plumbing work in the City of Jacksonville without a plumbing license.
Recommendation Based upon all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a final order in this case to the following effect: Dismissing the charge that the Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project; Finding the Respondent guilty of the charge that he violated Section 489.129(1)(j), Florida Statutes; and Imposing a penalty of a fine in the amount of two hundred fifty dollars ($250.00) and a suspension of the Respondent's license for a period of ninety (90) days. DONE and RECOMMENDED this 4th day of December, 1987, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2220 The following are my specific rulings on each of the findings of fact proposed by the parties: Findings proposed by the Petitioner: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of contract amount. There were two contracts for a total price of $16,991.00. Paragraph 3: Accepted in essence, with exception of exact month. Exact month is not established by persuasive competent substantial evidence. Paragraph 4: Accepted. Paragraph 5: The proposed list of work remaining to be finished is rejected because it is not all supported by persuasive competent substantial evidence and also because it constitutes unnecessary subordinate details. It is sufficient to find that the Respondent did not finish all of the work under the contracts. Paragraph 6: The essence of this proposal is accepted with a different emphasis and with additional findings in the interest of clarity. Paragraph 7: Accepted in substance. Paragraph 8: Accepted. Paragraph 9: Accepted. Findings proposed by the Respondent: (none) COPIES FURNISHED: E. Raymond Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Eugene Williams, Jr. 10337 Jolynn Court West Jacksonville, Florida 32211 Honorable Tom Gallagher Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all material times, Respondent has been a registered plumbing contractor, holding license number RF 0049725. He was first licensed in October, 1985, and has practiced plumbing contracting continuously since that time. Respondent has not previously been disciplined. In early 1989, Respondent entered into a subcontract with A-1 Properties to provide various plumbing labor and materials in connection with a residential construction job on which A-1 Properties served as general contractor. The total price of the subcontract was $5100. In general, Respondent performed his work in a timely and competent manner. A minor problem arose involving gas lines that Respondent installed in the kitchen. When a representative of the gas company inspected them during construction, he objected to certain fittings. After giving Respondent a few days to change the fittings, the owner authorized the gas company to make the changes when Respondent failed to do so. The record does not disclose what, if anything, the gas company charged the owner for the work. However, the work was not extensive, and the owner withheld from Respondent only $165 to cover the anticipated invoice from the gas company. In the course of performing the plumbing work, Respondent purchased, at a cost of $2117.77, materials from Shamrock Plumbing. The dates of the invoices reflecting these purchases and the amounts of the invoices are: August 2, 1989- - $1066.57; August 12, 1989--$37.77; August 25, 1989--$814.86; and August 25, 1989--$198.57. Respondent never paid Shamrock Plumbing for these materials. The owner and A-1 Properties timely paid Respondent for all of his work. As a result of change orders, the price for the job increased by $1355.45 to a total of $6455.45. In August, as Respondent's work drew to a close, the owner and A-1 Properties paid Respondent $2337 as follows: August 25, 1989-- $700; August 29, 1989--$500; and August 30, 1989--$1137. These payments total $2337. In making the final payment to Respondent, the representative of A-1 Properties was aware that Shamrock Plumbing had sent to a Notice to Owner for the plumbing materials that Respondent had purchased. Except possibly for the $165, item, Respondent and the general contractor were in agreement, when the final payments were made in August, that Respondent had been paid substantially in full and that he would pay Shamrock Plumbing. When Respondent failed to pay Shamrock Plumbing, it recorded a Claim of Lien on September 28, 1989, against the real property and initiated an action to foreclose the lien. The owner was required to retain the services of an attorney to defend the foreclosure action, pay Shamrock: Plumbing's legal costs, and obtain a release of lien. In so doing, the owner expended a total of $3984.19, as follows: his attorney--$456; Shamrock Plumbing's attorney--$1410.42; Shamrock Plumbing's invoice--$2117.77. The owner paid his attorney by checks dated January 16 and July 31, 1990. The check to pay Shamrock Plumbing and its attorney was dated February 26, 1990. On March 12, 1990, Shamrock Plumbing executed a Release of Lien, which was recorded on April 10, 1990. Respondent has not since reimbursed the owner for his expenditure of $3984.19 because Respondent lacks the money. He applied the August, 1989, payments received for the present job to satisfy obligations arising out of other jobs. Respondent testified that his money problems began when he was not paid for work he performed on other jobs, but they were unrelated to the job involved in this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h), assessing Respondent for the costs of the investigation and prosecution up to a maximum of $1000; placing Respondent on probation for two years; requiring Respondent to pay the owner $3984.19, plus interest at the legal rate, in restitution; and, if at the end of the two-year probation Respondent has failed to pay the owner in full, imposing an administrative fine of $1500 and suspending Respondent's license for one year. ENTERED this 20 day of May, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of May, 1991. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-8 (first sentence): adopted or adopted in substance. 8 (remainder) : rejected as irrelevant. 9-12 (first sentence): adopted or adopted in substance. 12 (second sentence): adopted that Respondent accepted the final payments. Rejected as unnecessary that Respondent did-not protest the $165 retainage. 13: rejected as unnecessary. 14: first clause rejected as unnecessary. Second clause adopted. 15: rejected as unnecessary. 16-17 and 22: rejected as subordinate. 18-20: adopted or adopted in substance. 21: rejected as unnecessary. 23-24: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent first page: adopted or adopted in substance. second page, first incomplete paragraph: rejected as irrelevant, unnecessary, and not finding of fact. second page, first complete paragraph: rejected as unnecessary and irrelevant. second page, second complete paragraph: rejected as unnecessary. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Attorney William S. Cummins Department of Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, FL 32399 James E. Todd, pro se 1621 Truman Rd. Orlando, FL 32807
The Issue Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of professional engineering in Florida. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909. Plaza 1300 In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error. The roof was redesigned by the Respondent prior to the roof construction. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements. Schooner Cove In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc." The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering. Mitigating Circumstances The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site. Aggravating Circumstances Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.
Recommendation In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended: The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint. Respondent be fined $1,000.00 for each violation for a total of $2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4. Accepted. Accepted. See HO #6 and #9. Accepted. See HO #9. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3, #4, #7 and #8. Rejected. Contrary to fact. See HO #3. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution. Accepted. Rejected. Contrary to fact. See HO #9. Accepted. Accepted. Rejected. Speculative Accepted. Accepted. See HO #14 and #15. Accepted. Rejected. See HO #3. Rejected. Overbroad. Addressed individually in findings. Accepted. See HO #13. Accepted. See HO #13. Rejected. Contrary to fact. See HO #13. Accepted. See HO #14. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. See HO #18. Accepted. Accepted. Accepted. See HO #19. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Accepted. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #12. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Contrary to fact. See HO #3. Rejected. Irrelevant. Accepted. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21. Accepted. See HO #12. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. See HO #23. Accepted. Accepted. Rejected. Not an allegation in the complaint. Rejected. Not an allegation in the complaint. Rejected. Contrary to fact. See HO #3, #7 and #10. Accepted. Rejected. Conclusionary. See HO #3. Rejected. Irrelevant to charges. Accepted. Accepted. See HO #11. Rejected. Contrary to facts of this case. See HO #3, #7 and #10. Rejected. Contrary to this particular situation when drawing sealed. See HO #3. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #22. Accepted. Accepted. See HO #22. Accepted. See HO #23. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #25. Accepted. See HO #25. Rejected. Irrelevant. See HO #3. Accepted. 121. Accepted. See HO #25. 122. Rejected. Contrary to fact. 123. Accepted. See HO #15, #17, #18, #21, #22, #23 and #25. 124. Accepted. See response to paragraph 123. 125. Accepted. See response to paragraph 123. 126. Accepted. 127. Accepted. 128. Accepted. See HO #10. 129. Accepted. 130. Rejected. Contrary to fact. See HO #27. 131. Accepted. 132. Rejected. Contrary to fact. See HO #27. 133. Accepted. 134. Accepted. 135. Accepted. 136. Accepted. 137. Rejected. Contrary to fact. See HO #27. 138. Accepted. 139. Rejected. Contrary to fact. See HO #27. 140. Rejected. Contrary to fact. See HO #27. 141. Rejected. Contrary to fact. See HO #27. 142. Accepted. 143. Accepted. 144. Rejected. Contrary to fact. See HO #27. 145. Rejected. Contrary to fact. See HO #27. 146. Accepted. 147. Accepted. 148. Rejected. Contrary to fact. See HO #29. 149. Rejected. Contrary to fact. See HO #29. 150. Rejected. Contrary to fact. See HO #29. 151. Rejected. Contrary to fact. See HO #29. 152. Rejected. Contrary to fact. See HO #29. 152(a). Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. 154(b). Accepted. 155. Rejected. Contrary to fact. See HO #29. 156. Accepted. See HO #30. 157. Accepted. See HO #30. 158. Accepted. 159. Accepted. 160. Accepted. 161. Accepted. See HO #30. 162. Accepted. 163. Rejected. Contrary to fact. See HO #31. 164. Rejected. Contrary to fact. See HO #31. 165. Accepted. 166. Accepted. See HO #32. 167. Accepted. 168. Rejected. Contrary to fact. See HO #31. 169. Accepted. 170. Accepted. 171. Accepted, but See HO #33. 172. Accepted. 173. Accepted. 174. Accepted. See HO #33. 175. Accepted. Accepted. Accepted, but see HO #34. Accepted. See HO #35. Accepted. Accepted. See HO #35. Accepted. Rejected. Not proved by clear and convincing evidence. See HO #36. Rejected. Not established fact. See HO #36. 184. Rejected. Contrary to fact. See HO #38. 185. Rejected. Contrary to fact. See HO #38. 186. Rejected. Contrary to fact. See HO #38. 187. Accepted. 188. Rejected. Irrelevant. 189. Rejected. Speculative. 190. Rejected. Contrary to fact. See HO #38. 191. Accepted. 192. Accepted. 193. Rejected. Contrary to fact. See HO #38. 194. Rejected. Contrary to fact. See HO #38. 195. Rejected. Contrary to fact. See HO #38. 196. Rejected. Contrary to fact. See HO #38. 197. Rejected. Contrary to fact. See HO #38. 198. Accepted. 199. Rejected. Contrary to fact. See HO #38. 200. Rejected. Contrary to fact. See HO #38. 201. Rejected. Contrary to fact. See HO #3. 202. Rejected. Contrary to fact. See HO #29. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #38. Rejected. Contrary to fact. See HO #38. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #29. 208. Rejected. See HO #3 and #12. 209. Rejected. See HO #3 and #12. 210. Accepted. 211. Accepted. 212. Rejected. Contrary to fact. See HO #38. 213. Rejected. Contrary to fact. See HO #38. 214. Accepted. See HO #39. 215. Rejected. Contrary to fact. See HO #10. 216. Accepted. 217. Accepted. See HO #9. 218. Accepted. See HO #9. 219. Accepted. 220. Accepted. 221. Rejected. Irrelevant. 222. Rejected. Irrelevant. 223. Rejected. Irrelevant. 224. Accepted. See HO #11 and #12. 225. Accepted. 226. Accepted. 227. Accepted. See HO #41. 228. Accepted. See HO #41. 229. Accepted. See HO #40. 230. Accepted. 231. Accepted. See HO #40. 232. Accepted. Accepted. See HO #41. Accepted. See HO #41. Accepted. Accepted. Accepted. See HO #43. Accepted to critical storm 10-year event standard. Rejected beyond 10-year critical year standard. Accepted. See HO #42. Accepted. See HO #44. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Rejected. Irrelevant. See HO #42. Accepted. Accepted. See HO #43. Accepted. See HO #43. Accepted. See HO #44 and #45. Accepted. See HO #45. Rejected. Contrary to fact. See HO #42. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #8 and #9. Accepted. See HO #9. Rejected. Contrary to fact. See HO #4. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #10. Accepted. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9. Accepted. Rejected. Contrary to fact. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence. Rejected. Improper summary. Rejected. Improper summary. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #14 and #15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected. Rejected. Improper summary. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Attorney comments, not evidence. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact. Accepted. See HO #27 - #39. Accepted. See HO #27. Accepted. See HO #35. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #28. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to fact. See HO #15. Accepted, as his testimony only. Rejected as finding of fact. Improper summary. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted, but not as to Respondent Wunder's design. Accepted. See HO #27 - #39. Accepted. See Preliminary Statement. Accepted. See HO #11 and #12. Accepted. Accepted. Rejected. Attorney's comments, not evidence. Rejected. Contrary to fact. See HO #43 - #45. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #40. Accepted. Accepted. Accepted. Accepted. See HO #40 and #43 - #45. Accepted. Accepted. Rejected. Contrary to fact. See HO #43 - #45. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #45. Accepted. Accepted. Rejected. Contrary to fact. 117. Rejected. Speculative. Improper summary. 118. Rejected. Irrelevant. 119. Rejected. Irrelevant. 120. Accepted. 221. Accepted. 222. Rejected. Irrelevant. 223. Rejected. Contrary to fact. See HO #45. 224. Accepted. 225. Accepted. 226. Accepted. 227. Accepted. 228. Accepted. 229. Accepted. Rejected. Weight and sufficiency determination. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #40. Accepted. COPIES FURNISHED: Wings S. Benton, Esquire Post Office Box 5676 Tallahassee, Florida 32314-5676 Diane E. McGill, Esquire TURK & SHIPP, P.A. 4223 Del Prado Boulevard Cape Coral, Florida 33904 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, Daniel Frank Molinari (Respondent) was a certified plumbing contractor, being licensed by the Florida Construction Industry Licensing Board (CILB) and having been issued license numbers CF C021437 and CF C041671. On or about March 20, 1990, the State Attorney of Dade County, Florida charged Respondent by Information with an attempted offense against intellectual property in violation of Sections 815.04(3) and 777.04, Florida Statutes, a misdemeanor: "[Respondent] on the 19th day of February 1990 . . . willfully, knowingly, without authorization, attempt to disclose or take data, programs, or supporting documentation, to wit: The CONTENTS of a CONTRACTOR'S LICENSING EXAMINATION, which is confidential as provided by law, residing or existing internal or external to a computer, computer system, or computer network. . ." On or about July 30, 1990, Respondent pled nolo contendere to the misdemeanor charge. Based upon Respondent's plea of nolo contendere, the Dade County Judge entered a judgement finding Respondent guilty as charged, withholding adjudication and imposing costs in the amount of $300.00. In the Dade County judicial circuit, a judge usually makes a finding of guilt when a defendant pleads nolo contendere even if adjudication is withheld. Typically, items in a CILB examination are reused on subsequent exams. However, each examination must contain a certain percentage of new items. Because of Respondent's attempted act, the CILB considered the items on the contractors examination in 1990 to be compromised and, therefore, unusable for subsequent examinations. The 1990 CILB examination consisted of two hundred and twenty-one (221) items. Consequently, 221 new items had to be developed at a cost of approximately $100.00 per item. On or about June 10, 1993, Respondent submitted to the CILB a Certification Change of Status Application (Application) to activate his inactive certified plumbing contractor license (license number CF C041671). Question 7(H) of the Application inquired whether Respondent had ever "Been found guilty of any crime other than a traffic violation". He responded "no" to the question. The Application required an affirmation, and Respondent so affirmed, that "these statements are true and correct and I recognize that providing false information may result in a fine, suspension, or revocation of my contractor's license." Respondent's request for activation could have been denied if he had responded "yes" to question 7(H) of the Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing Count II of the administrative complaint in DOAH Case No. 94-5259; Dismissing all counts of the administrative complaint in DOAH Case No. 95-0199; Revoking Respondent's licenses; Imposing costs for the investigation and prosecution to be determined by the construction Industry Licensing Board. DONE AND ENTERED this 29th day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 29th day of August, 1995.
