The Issue The issue posed for decision herein is whether or not Respondent engaged in acts and/or conduct, which will be set forth hereinafter in detail, in violation of Chapter 489, Florida Statutes, as alleged by Petitioner in its Administrative Complaints filed herein dated December 1, 1981, and March 8, 1982. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact By its Administrative Complaints filed herein, Petitioner charges Respondent with three counts of deliberately disregarding the applicable building code, in violation of Section 489.129(1)(d), Florida Statutes (1979), presently codified as Section 489.129(1)(d), Florida Statutes (1981); with violation of Section 489.129(1)(k), Florida Statutes (1979), in that he abandoned a construction project; with violation of Section 489.129(1)(m), Florida Statutes (1979), presently codified as Section 489.129(1)(m), Florida Statutes (1981), in that he is guilty of fraud or deceit or misconduct in the practice of contracting; with violation of Section 489.129(1)(c), Florida Statutes (1979), presently codified as Section 489.129(1)(c), Florida Statutes (1981), to wit: Section 455.227(1)(a), Florida Statutes (1979) in that he is guilty of a misleading, deceptive, untrue or fraudulent representation in the practice of contracting; with violation of Section 489.129(1)(j), Florida Statutes, to wit: Section 489.117(2), Florida Statutes (1979), in that he was engaging in the practice of contracting in a county where he was not properly registered; with violation of Section 489.129(1)(e), Florida Statutes (979), presently codified as Section 489.129(1)(e), Florida Statutes (1981), in that he aided or abetted an unlicensed person to evade the provisions of the contracting license law; with violation of Section 489.129(1)(f), Florida Statutes (1979), presently codified as Section 489.129(1)(f), Florida Statutes (1981), in that he knowingly combined or conspired with an unlicensed person and allowed his registration to be used by an unlicensed person with the intent to evade the provisions of the contracting license law; with violation of Section 489.129(1)(g), Florida Statutes (1979), presently codified as Section 489.129(1)(g), Florida Statutes (1981), in that he acted in the capacity of a contractor in a name other than as registered; with violation of Section 489.129(1)(j), Florida Statutes (1979), presently codified as Section 489.129(1)(j), Florida Statutes (1981), to wit: Sections 489.119(2) and (3), Florida Statutes (1979), in that he failed to properly qualify a company under which he was doing business. In support of the allegations in the Administrative Complaint filed in Case No. 82-1554, Petitioner presented the testimony of Newton B. Webb and Lewis Abbott, and introduced three (3) exhibits into evidence. Respondent testified on his own behalf and introduced no exhibits. In support of the allegations in the Administrative Complaint filed in Case No. 82-1645, Petitioner presented the testimony of Gladys Durden, Carolyn Thomas, and Cory M. Henriksen and introduced four (4) exhibits. Respondent testified on his own behalf and presented the testimony of Abe Anderson. Respondent introduced one (1) exhibit. Respondent is a registered residential contractor having been issued license No. RR0022063. That license was initially issued during 1976 and is current through calendar year 1983. On February 17, 1983, (Case No. 82-1554), Respondent entered into a contract with Newton B. and Flora Mae Webb to construct a fireplace in their trailer for the sum of $1,725. (Petitioner's Exhibit 1) The contract was on a letterhead indicating that the Respondent was doing business as James Construction Company. The fireplace was subsequently constructed by the Respondent and payment was made in full. (Stipulation of counsel, TR p. 10). Respondent did not obtain a building permit to construct the fireplace for the Webbs. The Southern Standard Building Code, which is the building code that was being enforced in Wakulla County, Florida, during times material when the fireplace for the Webbs was being constructed, contains a provision which requires that a permit be obtained for the construction of a fireplace. (TR p. 16; Section 106.1, Southern Standard Building Code.) Respondent is not licensed to engage in the practice of contracting in Wakulla County. The site of the Webb home, where the Respondent constructed the fireplace in question, is in Wakulla County. Respondent has not qualified James Construction Company as the entity through which he would engage in the practice of contracting in Wakulla County. Following completion of the fireplace for the Webbs, Mr. Webb complained that the fireplace was improperly constructed in that smoke poured from the hearth in a profuse manner. Mr. Webb complained that his fire detection alarm was constantly triggered by the smoke pouring out of the chimney. Respondent returned to the Webbs' residence and checked the fireplace and its operation on at least three occasions. On the fourth occasion, Respondent returned to the Webb residence with his counsel and an official from the City of Apalachicola, Florida. A small fire with paper was started and Respondent demonstrated to the Webbs, his attorney, and the building official how the damper in the fireplace operated and what Mr. Webb was doing wrong in the operation of the damper. Respondent gave Mr. Webb and those in attendance a brief demonstration in the proper and correct manner in which the damper should be opened so that the chimney vented properly. During that demonstration, the chimney did not smoke. During an inspection by the building official, Lewis Abbott, the following violations of the Southern Standard Building Code were observed: The chimney did not extend three feet above the roof of the residence. The foundation of the fireplace did not comport with the minimum requirements of the Southern Standard Building Code. The liner between the wall and the flue of the chimney was approximately 3-1/2 inches, whereas the minimum thickness required by the Southern Standard Building Code is 8 inches. A smoke chamber was not installed. The outside chimney was constructed against a combustible wall and the one-inch minimum clearance requirement was not met. The hearth was of insufficient size and was not supported sufficiently by a foundation that meets the minimum requirements of the Southern Standard Building Code. (TR p. 17) It is found that these conditions existed at the Webb residence at the time of Inspector Abbott's inspection. On September 30, 1979, (Case No. 82-1645), Respondent entered into a contract with Gladys M. Durden to rehabilitate her residence for the sum of $12,000. (Stipulation of counsel and TR p. 65). Respondent agreed inter alia, to repair the plumbing; install new flooring; build an extra room; install a new kitchen sink and cabinet; install vinyl floors as needed; and replace several windows and doors. According to Ms. Durden and Carolyn Thomas, Manager of the Federal Block Grant Program, the principal items which the Respondent failed to complete and/or correct centered around problems with the plumbing and his failure to install new flooring in the bathroom. Payment for the construction to the Durden residence was made by draws from the Block Grant Program and Respondent received payment based on two-party checks, which required, for negotiation, that both payees (Respondent and the homeowner-- Gladys Durden) sign the check. At the time Respondent presented the check representing final payment for construction to the Durden residence, Ms. Durden refused to sign it based on her claim that Respondent had failed to complete all of the work as contracted. Respondent presented the check for payment, which was honored, at the local bank in Apalachicola even though it was not endorsed by Ms. Durden. Prior to receiving payment for the final phase of the work to the Durden residence, Respondent had the construction on the Durden residence checked by the local building officials and a certificate of occupancy was issued which enabled Respondent to receive final payment for the Durden project from the City of Apalachicola's Block Grant Program. After negotiating the check representing the final payment for construction work done to the Durden residence, Respondent did not return to the site despite notification from the City Attorney of Apalachicola, the Block Grant Administrator, Carolyn Thomas, and phone messages received from Ms. Durden. Respondent encountered numerous problems while in the construction phase on the Durden residence. Ms. Durden had ten (10) children living in her home at the time construction was ongoing and, as a result, Respondent had to redo several phases of the work which had been previously done days earlier based on the number of residents living in the Durden home. Respondent did not return to the Durden residence based on his fear that Ms. Durden believed in "voodoo" and his position that he had completed all that was required by him pursuant to the contract. Respondent utilized the services of a plumber, Abe Anderson, to complete the plumbing and flooring phase of the Durden project. Abe Anderson installed a new floor, consisting of 1/2 inch plywood, and a new vinyl covering to the bathroom floor of the Durden residence in all areas except where the bath tub sat in the bathroom. When Respondent left the Durden project the plumbing operated properly. (Testimony of Respondent, Anderson, and Building Inspector Cory M. Henriksen.) Respondent acknowledged that he did not, in all respects, comply with the Southern Standard Building Code in his construction of the fireplace for the Webbs. However, Respondent contends that the code provisions are incorrect and that in any event he has been constructing chimneys in excess of twenty (20) years and that all other builders in the area construct chimneys in the same manner as he. In support of his position in this regard, Respondent points to the fact that most of the chimneys in the area do not satisfy the three-feet- height criteria and that various other sections of the Southern Standard Building Code, which he is charged with violating, are either not required or not followed. Respondent acknowledges the fact, and it is found herein, that he is not registered to engage in contracting in Wakulla County, and that he has not qualified James Construction Company as the entity through which he is conducting his contracting business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's license as a registered residential contractor (License No. RR0022063) be placed on probation for a period of one (1) year. It is further RECOMMENDED that Respondent be assessed an administrative fine in the amount of five hundred dollars ($500). RECOMMENDED this 26th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of July, 1983.
Findings Of Fact At all pertinent times, respondent John G. Wood was a registered real estate broker and a registered general contractor; and respondent Bruno Pais was one of approximately 15 registered real estate salesmen employed by respondent Wood, trading as Wood Realty. At the time of the hearing, approximately 125 people were employed in respondent Wood's construction business, which had built some 3,000 houses. John Wood and Associates, respondent Wood's construction firm, built a house at 903 Wakulla Drive in Winter Haven, Florida, on what had previously been a citrus grove. The house sits on a corner lot and adjoins a heavily travelled state road. In 1975, after the house had been built, respondent Wood learned that the ground underneath the patio near a glass door at the rear of the house had settled. He directed a construction superintendent to reinforce the footing underneath the house and to replace the patio. This repair proved ineffectual, however. In the summer of 1976, respondent Wood engaged Ivan Dewitt King, Jr., a civil engineer and land surveyor with some 30 years' experience, to evaluate the house at 903 Wakulla Drive and to advise what should be done to repair the house. Mr. King examined the foundation and dug several test holes. He found that the foundation had deflected downward one-quarter to one-half inch and that the soil was softer where the deflection had occurred than elsewhere. Although the foundation had bowed, it had not cracked. There was no sinkhole in the area. The softness of the soil might have been the result of a tree's having been uprooted. Mr. King recommended excavating under the existing foundation, pouring concrete to make a new, broader footing underneath the then-existing footing and, after the new footing had cured, placing jacks on it to jack up the original footing and hold it there until the space between the old and new footings was filled with concrete. Mr. King suggested a "twenty- four inch footer to go underneath the existing one, (T.56) and advised respondent Wood that taking these steps would solve the problem. In August of 1976, at respondent Wood's instance, Jeffrey N. Riner, who had been in the foundation and concrete business for some ten years, went in and dug out. . below the foundation and put like a three or four foot wide by about fifteen foot long solid concrete pad with steel across both ways coming up and out of it, and then. . took jacks, like twenty- ton jacks, and jacked the foundation and. jacked. . the slab back. . as close as possible to its original. . place, and then poured the concrete back underneath in between this foundation and the original foundation. (T. 65). Mr. Riner testified that, in his opinion, "that part of the house will never go anywhere." (T.65) After this second repair, respondent Wood observed the house and observed "no structural problems" (T.42) "other than minor cracks in the masonry and expansion cracks." (T.41) Originally, respondent Wood had sold this house to Fred Crabill. Shortly before the second repair, respondent Wood took the house back as partial payment for another house he sold Fred Crabill. Some six months after the repair, on February 17, 1977, James D. and Erma C. Anderson signed an agreement to purchase the house. Driving by, Mr. Anderson had noticed the house and had thought about buying it, but decided to do so only after respondent Pais showed him the house. Respondent Pais was aware of the condition of the soil, that the foundation had deflected, and that repairs had been done. He had been given to understand that there was no longer any structural problem with the house. Mr. Anderson asked respondent Pais if there were anything wrong with the house, and respondent Pais assured him that there was nothing wrong. When he first inspected the house, Mr. Anderson observed that the house was dirty, but noticed no other problems. After the Andersons moved in, they found that the bath tub did not drain properly. The drainage problem was not caused by settling of the house or deflection of the foundation, and was known to neither respondent until after the Andersons vacated the premises. After Mr. Anderson removed some sliding glass doors for cleaning, be had difficulty opening and closing the doors. The Andersons began noticing hairline cracks in a rear wall, two or three of which grew over time to be about one-quarter inch wide at their widest points. These cracks reflected minor setting of the soil underneath the house, attributable to vibration caused by nearby traffic. (T.43) The Andersons never made a down payment on the house. Under their agreement with respondents, the sale was to be closed on or before April 3, 1977, with the Andersons making mortgage payments until the closing. The closing was postponed while the Andersons tried to sell other real property so as to be able to apply the proceeds to the house on Wakulla Drive. In September of 1977, respondents threatened to evict the Andersons unless they closed the transaction. On September 11, 1977, the Andersons, who had learned by then of the repairs previously done to the house, and who were worried about the cracks they had seen, moved out. Thereafter, a complaint was filed with petitioner. In November of 1977, respondents caused some re- grouting to be done to repair cracks in the mortar first observed by the Andersons on a rear wall of the house. Subsequently, Lane A. Bohannon took the house in trade for other property. He knew that the foundation had been repaired at the time. Mr. Bohannon, who rents the house, was unaware of any problems with the house's settling or with the operation of the sliding glass doors during the approximately eight months that he had owned the house.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint as against John G. Wood. That petitioner suspend Bruno Pais' registration as a real estate salesman for thirty (30) days. DONE and ENTERED this 26th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen Baker, Esquire and John Wood, Jr., Esquire Suite 2, 200 Avenue K, Southeast Winter Haven, Florida 33880
Findings Of Fact At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772. On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or $9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or $19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made. The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted. From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started. Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6. On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block. Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above. When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards. Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks. Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5. Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards. Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry. These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result. The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom. Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging. Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe. Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general. Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day. He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders. Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed. Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a certified general contractor be suspended for six months, that he pay an administrative fine of $500.00, and that he be reprimanded. RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1718 The following constituted 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. BY THE PETITIONER Petitioner failed to number Findings of Fact submitted and included them in a section entitled FINDINGS OF FACT AND CONCLUSIONS OF LAW. However, as best as can be determined: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a Conclusion of Law. Rejected as a restatement of testimony. Rejected as a restatement of testimony. Accepted. Rejected as a Conclusion of Law. Accepted as evidence of prior disciplinary action. BY THE RESPONDENT None submitted. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard T. Warnky 4924 S. W. 11th Court Cape Coral, Florida 33904 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.
Findings Of Fact At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed violations of Section 489.129(1)(m), Florida Statutes, by committing fraud, gross negligence, incompetency and misconduct in the practice of contracting, and whether he has violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating applicable building codes with regard to the construction of two residences or additions thereto in Tallahassee, Florida.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, and related rules, which provisions regulate the admission to licensure and the licensure status of certified building contractors, impose standards for the practice of building contracting and provide a means for enforcement of these practice standards by disciplinary proceedings such as this one. The Respondent is a citizen of the State of Florida and is a certified building contractor. He is the qualifying agent for Fountaincrest Builders.. He holds license no. CBC022113. The Respondent had built a substantial number of residences in Tallahassee and Leon County, Florida, in the years in which he has practiced contracting in Leon County. On December 23, 1988, Dr. Ronald Reeves purchased a home in the High Grove subdivision located at 4770 Lancashure Lane, Tallahassee, Florida. The home had been built by the Respondent and Fountaincrest Builders, and Dr. Reeves purchased the home from the Respondent. Dr. Reeves was apparently satisfied with the quality and type of construction in the existing home which he purchased. However, he decided to construct an addition to that home. He desired to construct the addition on the end of the house encompassing the garage (the south end), in order to have room for an upstairs playroom, additional bathrooms, an office and library area, and to continue to have garage space. Dr. Reeves is a medical doctor, who operates a consulting business, using a portion of his residence as his office and work area. Accordingly, in early January of 1989, he consulted with Mr. Fountain about the possibility of constructing an addition to the home for this purpose. On January 23, 1989, he contracted with the Respondent and Fountaincrest Builders for the construction of the addition. He believed that the Respondent could best accomplish an appropriate blending of the structure and appearance of the addition with the existing house since he was the original building contractor, who constructed the house and would be most familiar with all construction details related to it and to the addition. In fact, his decision to buy the existing house was influenced by his desire to build an addition to integrate structurally and visibly with the existing house, so that the fact that the addition had been built at a later time would not be readily apparent. The Respondent assured him that he could structurally and aesthetically blend the addition with the existing house in an appropriate and pleasing manner. The parties agreed to a contract price of $40,666.00. Construction was commenced and carried through to completion, although not to the satisfaction of the owner. Dr. Reeves ultimately paid approximately $36,000.00 of the agreed- upon contract price before frequent and increasingly heated disagreements between Dr. Reeves and the Respondent culminated in the termination of the contract and the Respondent leaving the job. The construction agreed upon consisted of an enclosure of the existing garage to create an office, study and library area with a half bathroom, as well as adding a three-car garage with a staircase and a recreation room and half bathroom on the upstairs level. The contract provided and the Respondent verbally agreed that all work would be performed to the same quality and standards as that prevailing in the existing home to which the addition was to be added. Dr. Reeves and the Respondent discussed Dr. Reeves' desires and requirements for the addition, including the bathroom, study, garage, staircase, recreation room, etc.; and Dr. Reeves thereby indicated to the Respondent the general physical nature and description of the construction he wanted done. The Respondent then selected a draftsman and had the draftsman draw plans for the addition. Prevailing standards for the practice of building contracting in Florida and in Leon County require that a building contractor, who obtains the plans, should be responsible for verifying the measurements to insure that the drawings correctly account for and depict the existing construction and the proposed construction to be added to it. Verifying the measurements in this context means that the contractor should check all dimensions before construction begins to insure that the new construction depicted on the plans, including its junction with the existing building, will fit and match the existing building, both as to dimensions and type and size of materials used, as well as verifying the dimensions depicted on the plans with the actual layout of the proposed construction in the field. This helps to insure that all elements depicted on the plans, materials used and finished components of the construction will appropriately fit within the dimensions depicted on the plans and that those dimensions will ensure appropriate mating of the new construction with the old. The plans obtained by the Respondent contained the following caveat from the draftsman: While every attempt has been made in the preparation of this plan to avoid mistakes, the maker cannot guarantee against human error. The contractor on the job must check all dimensions and other details and be responsible for same. The Respondent obtained the building permit for the additional construction on January 24, 1989 and construction commenced shortly thereafter. Construction had commenced before the Respondent ever advised the owner that certain problems existed regarding differences between the dimensions depicted on the plans and the actual field rendering of those same elements of the construction. During the course of construction, Dr. Reeves perceived certain deficiencies and discussed them on a repeated basis with the Respondent. These deficiencies and the discussions concerning them, which became more and more heated, culminated in Dr. Reeves' sending the Respondent a registered letter on May 9, 1989 identifying the deficiencies which ultimately were the basis for the charges in the complaints. In Leon County, all structures constructed pursuant to a building permit must comply with the Standard Building Code; and all such structures must have a building permit issued before construction can commence. It is the builder's responsibility to be familiar with that building code and to apply it correctly to each phase of construction. The code applicable to this construction and proceeding is that contained in the Standard Building Code, 1935 Edition, with 1986 and 1987 Revisions ("SBC"). This code and its predecessor versions have prevailed in Leon County for the past 16 years. The Respondent had assured Dr. Reeves that the exterior appearance of the proposed addition would aesthetically blend with the existing house so that the junction of the addition with the existing house would not be noticeable. In fact, however, the brick on the front elevation or face of the Reeves' home, facing the street and front yard, does not properly blend with the brick of the existing home at the point where the addition joins the existing home.' Although brick of a matching size, shape and color was used in the addition, the new brick does not correctly align and blend with the old brick. After the brick work was already in place, the Respondent represented to Dr. Reeves that the blending was, in his opinion, of good quality and about the best obtainable from masons and contractors in the trade in the Leon County area. In fact, however, `the existing masonry work is substandard. The joint thicknesses vary beyond acceptable limits and the brick was not correctly "keyed in" or overlapped with existing brick courses from the existing house corner and thus does not achieve minimum standards of masonry construction prevailing in Leon County and in Tallahassee. In fact, at one point, in a noticeable area near the ground, at the junction of the old and new brick veneer walls, bricks are cut or broken and the old half brick is joined to the new half brick with a mortar joint rather than whole old bricks and whole new bricks being correctly overlapped or "keyed in". Thus, even if the Respondent intended that the blending of the brick would be of good quality and would not be readily noticeable, the execution of the masonry work was not actually carried out in that manner. The plans as originally procured by the Respondent from the draftsman depicted a garage window on the front of the addition to the home at the same level as the existing windows in the home itself. That window was depicted on the original plans as a square window. The plans contain a notation by Dr. Reeves', questioning why the window was square instead of matching the existing windows of the house in shape, which were large palladian windows (having arched openings). Because Dr. Reeves wanted the palladian window, the plans were taken back to the draftsman for revision. When the draftsman revised the plans, he indicated to the Respondent that the palladian window would cause a problem because it was higher than the square window originally depicted on the plans and, therefore, would project up into the space required for the window "header". The header is a top plate or structural component designed to span the top of a window opening at the top of a wall and which, in this case, is required to support part of the load or weight of the upstairs floor and roof assembly. The plans were nonetheless changed to include the palladian window, and the Respondent obtained the plan showing the palladian window in the garage wall, rather than the square window, prior to commencing construction. In order to fit the palladian window in the wall and still have room for a header over the window opening upon which to support the upstairs floor and roof components overlying the top of the window opening, it became necessary to frame the window in such a way that the finished window would ultimately project approximately one foot lower or closer to the ground or grade level than the existing windows in the home, which is readily apparent when viewing the front elevation. The Respondent did not inform Dr. Reeves that the window would be approximately one foot lower than the existing windows in the home until well after construction had commenced and, indeed, the window was already framed into the wall. Dr. Reeves did not actually approve of this difference in window elevations. He felt compelled to accept it since at that stage of construction, it was the only practical solution to the problem created by there being insufficient space in the wall to accommodate the palladian window if installed at the level of the existing palladian windows in the home. Although it is true that Dr. Reeves insisted on the change from the square configured window to the palladian window, the fact that the window was ultimately installed at a lower level than existing windows and is thus aesthetically undesirable due to its misalignment with existing windows was due to the Respondent's failure to verify the measurements of the plans and their depiction of the window with the dimensions necessary to the correct framing of that wall. This resulted in insufficient space required for the header or support beam system spanning the window opening necessary to support the overlying second floor and roof elements of the construction. The relatively incurable nature of the problem also resulted, in substantial part, from the Respondent's failure to advise the owner of the dimension problem created by the window configuration change before construction began and had progressed to the point that proper alignment of the window and proper window configuration could no longer be effected. It was the Respondent's duty to reconcile all discrepancies in the existing measurements in the plans for the permitted addition before the work commenced and to disclose in a timely fashion any deviations from those plans to the owner in order to effect the owner's consent or agreement on any further changes or corrections. The plan for the upstairs playroom area of the addition depicted that a bathroom or half bathroom was to be located at the southern end of the addition above the entrance to the new garage area in the southwest corner of the upstairs playroom area. The plans depicted a double window in the south wall of the upstairs playroom directly over the garage doors. During the course of the construction, the Respondent discovered that in order to construct the bathroom of the size, dimensions and location depicted on the plans, the bathroom would encroach or project in front of the attic playroom window if placed in the position depicted in the plans. The plans, themselves, do not show such an encroachment. Either the plans are incorrect in depicting the location and dimensions of the bathroom and the window in positions relative to each other, or the Respondent erred in interpreting the plans and in constructing the bathroom and window in deviation from the plan drawings. In any event, the Respondent did not offer explanation to nor seek permission from the owner for the change in location of the bathroom. The Respondent told Dr. Reeves that the bathroom would have to be moved because it would encroach on the attic playroom window, but did not tell him that the location was being changed until the bathroom was already being framed in the new location at the other end of the attic playroom on the same west wall. Thus, the owner did not approve of the relocation of the bathroom, but felt that there was no practical choice in having to accept its relocation at that point because its construction had already progressed to the point where it would be impossible to relocate it once again to its originally depicted position. Thus, based upon the Respondent's references to the apparent encroachment of the bathroom over the attic playroom window space, the owner acquiesced in the relocation. It then developed that, as a result of relocating the position of the bathroom, the bathroom door would not open sufficiently to meet building code requirements regarding the distance and space to be allowed for the opening of doors. The bathroom door still does not open fully as a result of the bathroom relocation. This is because the bathroom door is too close to an opposite partition wall and contacts that wall when opened so that the door cannot open fully. As a result of relocating the bathroom, the wall in question had to be also relocated so that the bathroom door would open wide enough to meet code requirements. As a result of the wall being relocated, patching of the plaster-type of wall coating was required. That patching resulted in a substandard wall finish with a sort of light adobe texture changing to a sort of heavy adobe stucco texture within six feet of wall space on the same wall. This is unsightly in appearance and not in accordance with the standard of construction for contractors in Leon County and not in accordance with the quality of construction which the owner was told he would receive in the new addition, as compared to the quality of the existing house. All of this resulted from the Respondent's failure to timely anticipate the bathroom location problem and inform the owner. The Respondent also failed to reconcile the plans with existing dimensions prevailing at the site in relation to the existing construction to which he was connecting the addition. This resulted in the necessity for relocation and modification of the stairwell and stairs from that originally depicted in the plan drawings. A stairwell to the attic playroom was constructed after three attempts. The last attempt, after redrafting of the plans, finally achieved a workable arrangement for the stairwell and stairs, but was not in conformity with the originally drawn plans. The draftsman for the stairwell and stairs met with carpenters on the job site to assist in resolving discrepancies between the measurements depicted in the existing structure of the house and the plans. The draftsman also had to return a second time to meet with the owner and the carpenters at the owner's request to assist in adequately locating, designing and constructing the stairwell and stairs. The Respondent was not present at either of those two meetings. The owner did not find out that the stairs had to be relocated until framing of the stairs was well underway. The Respondent failed to adequately anticipate measurement discrepancies between the existing house structure and the planned addition in interpreting the plans for the stairwell and stairs and in carrying them out. The Respondent located plumbing above the floor level in the addition and in the renovated garage of the addition. This consisted of the sanitary sewer drain line from a newly constructed half bathroom. The plans had not depicted constructing the plumbing or sewer drain line above floor level in an exposed fashion. Because the sanitary sewer line was installed above the floor level of the addition on the ground floor, it had to be "boxed in" or surrounded by a plumbing chaise where the sewer line went through the office area of the new addition. This caused a condition incompatible to some extent with the design of the structure and the owner's intent for that space. It was to be a portion of his office area, but the plumbing chaise to conceal the above floor sewer line resulted in the file cabinets, planned to be installed in that area, resting approximately six inches out into the room away from the wall, resulting in less usable floor space in that office area. Additionally, the same sewer line was exposed in one corner of the garage area of the addition suspended above the floor before it exited through the foundation wall of the building at a point above floor level in the garage. The plans did not depict such an exposed sewer line, and the owner was not aware that the sewer line would have to be located inside the addition or the renovated garage portion of the addition above floor level until he discovered them already installed or being installed in that fashion during construction. When he discovered them that way and questioned their location and configuration, the Respondent explained that in order to achieve sufficient "fall" or slope for the gravity sewer line to the septic tank, to which it was routed, the sewer line had to be constructed above floor level. While this was shown to be true and resulted in the owner being economically benefited by using the same septic tank which was already installed for the house, he was not given the opportunity to choose whether to construct them in that fashion or to, in a more expensive way, cut through the concrete floor and adjacent foundation wall to go immediately outside the building from the bathroom. This method would have been more expensive, but would have been more aesthetically pleasing. The point is that the owner was not given an opportunity to consider this departure from the plan drawings before the construction of the sewer line had progressed to the point where it was impractical to change the design and location of it once again. Roof framing trusses are very critical construction components. Roof trusses are pre-engineered, pre-constructed rafter and attendant bracing assemblies which are built by a truss manufacturer, transported to and installed on the job site. Their design, construction and placement on the roof structure of a building is to be accomplished in exact accordance with building plans and the truss manufacturer's design and specifications in order to avoid the risk of failure due to downloading of the weight of the roof of a building, as well as failure during wind uplift in storm conditions. Thus, structural engineering and contracting standards with regard to truss manufacture, installation and repair must be strictly adhered to, as depicted in Sections 1708.2.1 and 1708.2.3 of the SBC, in effect in Tallahassee and Leon County. Trusses installed over the addition on the Reeves' residence were improperly cut and after the cut was discovered, were improperly repaired by the Respondent and his subcontractors. In the course of a framing inspection, the inspector discovered that the "heel end" of one truss over the new garage addition at the Reeves' residence had been cut to accommodate the location of the top of the brick veneer wall on the outside of the framed wall of the new addition. That is to say, the bottom horizontal member of the truss projected outward from the framed wall too far and had to be cut or "notched out" to allow it to be installed in relation to the height of the top of the brick veneer wall immediately adjacent to it and to the framed wall. The Respondent did not have a qualified superintendent on the job at the time of the inspection nor was the Respondent present. When later confronted by the building inspector with this problem, the Respondent either denied its existence or had no knowledge that the truss end had been cut. He did, however, agree to repair them immediately. The repairs to the trusses were specified by engineering personnel of Alpine Engineering, who designed and built the trusses. The repairs were to be accomplished by the addition of metal reinforcing plates at certain critical junctions of the truss members. The repairs were not carried out properly, however. The corrective metal plates specified by Alpine Engineering were not properly placed and nailed. Adherence to truss specification, both as to design, installation and repair, if necessary, is critical to the structural integrity of a building, especially under downloading conditions and storm wind uplifting conditions. The failure to properly install this truss, including the cutting of it at a critical point to make it fit, and more especially, the incorrect repair after the defect was discovered, constituted a departure from generally-accepted structural engineering and contracting standards prevailing in Tallahassee and Leon County in the construction industry. It constituted a specific violation of the above-cited Sections of the SBC. The Respondent also allowed a negative grading condition to exist in the vicinity of the garage door opening on the west side of the garage. In effect, a negative slope existed in this area causing rain water to flood into the front portion of the garage. This apparently resulted from inadequate supervision of the subcontractor who performed the grading of the ground surface around the addition to the house. The grading behind the garage addition on the west side, combined with the negative slope of the driveway concrete pad in that area allowed water to flow into the garage. This condition was aggravated somewhat by the owner's failure to timely effect sodding of the graded area, as the subcontractor had recommended. The subcontractor had recommended that the area be sodded completely so as to retard the flow of water and the attendant erosion of soil from the grade behind the garage and driveway. The condition was ultimately alleviated by the owner, himself, when he built a small retaining wall of brick to redirect the flow of water away from the negatively sloped area of the driveway pad. In addition to the problem discussed above concerning the improper truss installation and repair, the Respondent also failed to insure that the roof on the new addition was properly supported and framed. The "common-framed" portion of the new roof (that part not constructed with pre-engineered trusses) joined the factory-built trusses on the existing garage. At the point of that juncture, an unsightly bulge in the finished shingle level or plane of the roof occurred, which was itself due to poor construction by failure to insure that proper measurements were taken and that the common-framed members were cut to the proper measurements so that the level of the common-framed portion and the factory-truss-supported portion of the new roof would line up in the same plane. When this condition came to the Respondent's attention, after the roof was completed, either through remonstrances of the owner or through advice by his carpenters, the Respondent promised the owner that they would correct the condition by "shimming up" or raising the common-framed roof portion so that the bulge would be eliminated and the common-framed portion and the truss-supported portion of the addition's roof would be level with each other. After the shimming or raising of the common-framed portion of the roof was accomplished. and after the "final" framing inspection, the building inspector made another inspection visit to ascertain if proper repairs had been accomplished at the bulged roof area. He observed that the roof had been raised by the placing of the shims or wedges under the ends of the common-framed rafters between the ends of those rafters and the decking of the pre-existing roof on the original portion of the house. (See Petitioner's Exhibit I, page 101; Petitioner's Exhibit F, page 63, photo 7, page 64, photo 10 in evidence) The lifting of this portion of the roof by the installation of shims accomplished a favorable cosmetic result in the exterior appearance of the roof line. It was accomplished at the expense of structural integrity, however. The shimming of the common-framed roof rafters created a dangerous risk of wind uplift during storm conditions because the holding power of the nails was largely nullified at the end of the rafters. This is because the installation of the shims resulted in the nails being removed approximately half their length where the ends of the rafters were "toenailed" into the old roof decking. In permitting the installation, and then the "shimming up" of the common-framed portion of the new roof, resulting in the partial pullout of the nails attaching the ends of the common-framed rafters to the existing roof deck beneath, no apparent effort was made (by lifting the old shingles) to ascertain if the joint of the new, common-framed rafters was with the existing rafters beneath the old roof or merely nailed through the plywood decking of the existing roof. This latter condition would result in little support for the new common-framed portion of the roof and almost no resistance to wind uplift, especially in consideration of the fact that the addition of the shims under the new rafters greatly reduced the holding power of the rafter nailing. This constitutes a clear violation of SBC 1701.1.1, requiring that wood members and fastening comply with and conform with good engineering practices. Additionally, the common-framed rafters were allowed to be set on 48- inch "centers," or a distance of 48 inches between the center of each rafter, instead of the Code required 24 inches. The plywood decking for the roof has a load rating only allowing a maximum of 32 inches of unsupported span for that decking. The inspector later required the installation of additional rafters between each of the existing common-framed rafters installed by the Respondent with the addition of horizontal purlins, or two-by-four bracing members, between the rafters in order to prevent sagging of the plywood decking at the decking joints. Lumber used for such framing is stamped with codes that correlate to the use and load tables in the SBC for the permissible uses of lumber for framing, including roof framing. The failure to set roof rafters on two-foot centers under such circumstances is a substantial departure from prevailing contracting standards in Tallahassee and Leon County. A ridge beam support column was installed beneath the ridge beam to which the common-framed rafters attached at the center, highest point of the common-framed portion of the addition's roof. This support column was established by the Respondent's testimony, as well as that of the framing carpenter involved, to be unimportant and not intended as a structural member, being merely placed there to support and hold the rafters in alignment until they had been properly nailed. The problem with it, however, is that it was poorly nailed with only three nails connecting it; and it was left in place after completion of this portion of the roof. It was merely nailed to the roof decking beneath without a supporting rafter member directly under it to bear the downward load exerted on it by the weight of the roof system above it. If construction of the common-framed portion of the roof had been performed properly, there would be no downward loading on this column; and, indeed, it would be unimportant. In the instant situation, however, the ends of the rafters, as discussed above, had been shimmed up in such a way that they were no longer securely nailed at each end. This permits the weight of the roof system, and anything on that roof above it exerted in a downward fashion, to allow potential spreading of the feet or ends of the rafters where they attach to the pre-existing roof beneath, so that they cannot bear all of the downward load of the roof. This, in turn, puts a downward loading on this column which, due to the incorrect rafter framing and installation, results in it being a support column even if it was not intended to be. It is inadequately nailed to be a support column and is inadequately attached because it is attached merely to the plywood roof decking and shingles underneath it, instead of to a pre-existing rafter under the pre- existing roof decking. The potential for horizontal spreading of the ends of the common- framed rafters where they were shimmed up could be alleviated if the proper horizontal collar beams had been in place running between the rafters, in a horizontal plane, from one pitch of the roof to the other in the common-framed portion of the roof. These were left out, however. Thus, there is no real preventive measure to prevent the spreading of the rafters and the potential that the inadequate toenailing at the ends of the rafters may become loosened with the downward loading on the roof over time. Thus, the failure to properly attach the ends of these common-framed rafters to supporting members beneath the pre-existing roof decking and to adequately nail them, coupled with the failure to install the correct collar beams between the two legs of the rafters, as well as the use of the ridge beam support column in the way in which it was used resulted in the common-framed portion of the roof on the addition being extremely inadequate in terms of complying with correct and generally-accepted building and engineering standards prevailing in Tallahassee and Leon County under the purview of the SBC. Additionally, common-framed rafters in this area were severely bowed or bent near the new roof line, due to the excessive length of the rafters used. In other words, the two-by- four section rafters used span too great a length for their cross section volume and density to adequately support the roof load they have to carry. The required cross-section for each rafter spanning the length required should have been 25 cubic inches. They were only of 8 cubic inches cross section. The potential consequence is thus severe bowing of the rafters and eventual roof failure. Because of the inadequate toenailing of the rafter ends allowed by the Respondent, the potential uplift load from high winds exceeded the dead load downward of the weight of the roof itself on the rafters by some 200 pounds at the nailing points at the ends of the rafters. That is to say, the storm wind standard in the building code results in an uplift loading on such a roof which, when considered with the dead load of the roof in a downward direction, results in an uplift potential of 200 pounds at the nailing points under the storm wind velocity condition contained in the subject standard in the SBC. Thus, there is a real potential for failure of this portion of the roof in the event of hurricane-force winds. The Respondent additionally allowed the construction of point loadings on shims under the roof framing, where the roof framing joins the vertical wall framing, which actually bear on the brick veneer exterior wall. Brick veneer is intended to be a wall finish or covering rather than to provide structural support for the wall to which it is attached or the roof above it. It can easily fail if it supports roof loading. The downward loading from the roof members at the point in question was 400 pounds per square inch. The brick veneer wall was constructed with standard "type M" mortar, which has a standard strength of 300 pounds per square inch. Thus, the bearing of "down loaded" roof weight onto the brick veneer wall, transmitted to that brick veneer wall by the use of shims or wedges on top of it bearing under the roof framing members, can result in failure of the brick veneer wall. Use of shims in this fashion violates Section 811.1.2 of the SBC It is true that the Respondent himself did not perform the roof framing in the manner discussed above, but rather it was performed by his framing and carpentry subcontractors. It is also true that the Respondent was not on the job every day, observing the installation of each roofing member, but rather had to supervise other jobs in other areas of the City or County, as well. It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs. The contractor is, however, responsible for the quantity and quality of work performed by his subcontractors and has a duty to supervise them adequately. Even if the deficient framing was done without the Respondent's knowledge, he had a responsibility to promptly see that it was corrected. This responsibility was not fulfilled in the instant situation, and the corrections called to his attention by the building inspector were either not made, or were deficiently performed when made, in the manner found above. Either the Respondent's supervision of the job was grossly inadequate or he lacked a basic knowledge of proper roofing and structural framing standards necessary for safe residential roofing construction or a combination of the two factors. The finished carpentry and plaster work in the addition was deficient in a number of respects. This work was performed by the Respondent's subcontractors and, to some extent, by the Respondent, himself. The built-in bookshelves in. the office area were trimmed with two different types of mismatched trim moulding. Additionally, the shelves warped because they spanned too great a distance for the strength of the lumber used for the shelves. This resulted in them bowing severely when loaded with heavy books, and on some occasions, resulted in them falling when loaded with books. The Respondent was aware that these shelves would be used for Dr. Reeves' books before he constructed the shelves and yet constructed them of materials and in such a manner that they would not adequately bear the weight of the books placed on them. Standard building practices require disclosure to an owner at any point when design materials are not appropriate to the construction element in which they are to be used. In using materials for the bookshelves that would not adequately bear the weight which they were designed to bear, the Respondent either negligently did not insure that lumber of the proper strength and dimension was used to bear the weight and see that it was properly braced or, alternatively, did not know that the type of lumber he used would not sufficiently bear the weight of the books, which he should have foreseen would be placed on the shelves. In response to Dr. Reeves' complaint about the quality of the bookshelves, the Respondent merely indicated to him that the materials used were the highest quality and that the shelves were constructed properly. He then suggested placing the shelf boards flat on the floor with weight on them to straighten them out. This response ignores the fact that inadequate materials and construction methods were used in the bookshelves in the first place, both as to the necessary structural strength and as to the appearance of the bookshelves, which was clearly substandard in view of the mismatched trim moulding used around the top of the shelves. Additionally, when the attic playroom windows would not close because of the improper sizing of the windowsill, the Respondent sent a carpenter, who chiseled out recesses in the windowsill to accommodate the window handle so that the window could shut in a downward direction and lock. None of the other windowsills in the house match the sill in the attic playroom windows, because it was not necessary in any of the other windows to chisel out a recess for the window handles to go down far enough for the window to lock. This problem could have been remedied by the removal of the bottom window casing member and lowering it a sufficient, small amount so that when the windowsill was replaced on top of it, adequate clearance for the handles would still exist when the window was locked so that a person's hands could fit into the window handles to raise and lower the window. Instead, the Respondent took an expedient approach at remedying this situation by chiseling out a space in the windowsills for a person's hands and then attempting to cosmetically improve it by suggesting the installation of metal cups in the windowsill to conceal the chiseled out portion. Additional finish work in the addition, which was substandard, involved the wall patching in the stairwell and the patching and finish work around the baseboards in the stairwell, which was substandard and of a rough appearance. The skylights were not finished in the addition in a way to match the skylights in the existing house, which had been trimmed out with proper moulding and covered with a light-defusing plexiglass, which was left off the skylights installed in the addition. More importantly, the handrail on the steps in the new addition was merely anchored through the sheetrock wall with toggle bolts or screw anchors, rather than being fastened or anchored in the wall studs themselves behind the sheetrock, which would have been a strong connection to pine lumber, rather than in weak plasterboard-type sheetrock material, which was the actual result. Because of the failure to attach the stair handrail to the studs in the wall, it would be possible for a person using the handrail to fall down the stairs and be injured. In fact, the handrail actually fell off the wall eventually because of this inadequate attachment. It is noteworthy that the Respondent, himself, personally participated in the installation of this handrail in a deficient fashion. The finish grade outside of the garage wall on the west side of the garage portion of the addition was higher than the floor of the garage, that is, the soil in the finish grade came up higher on the outside of that wall than did the concrete floor of the garage on the inside of that wall. This was doubtless the result of the subcontracting grader's efforts to create a valley or a slight swale around the house a short distance away from the wall so to conduct water away from the house. What resulted, however, because of inadequate reverse sloping and because the wall was inadequately waterproofed, was that water seeped through the wall in a manner which could eventually rot and deteriorate the interior wall studs and the sheetrock on the inside wall of the garage. A water line or stain is visible six inches above the floor line on the interior wall of the garage at this point, which indicates that moisture is migrating through this wall. This is a departure from prevailing standards of practice in the construction industry. An additional severe defect in the construction of the addition occurred in conjunction with the installation of the palladian window discussed above. The Respondent permitted the use of doubled "two-by-sixes" nailed or "scabbed" together as a header member or plate spanning the top of the palladian window opening in the garage. Although double two-by-sixes are stronger than a single two-by-six or even doubled two-by-fours, the doubled two-by-six member was not sufficient to bear the load from the flooring and roof system bearing downward from the room and roof above. Doubled two-by-twelves or their equivalent was required for such a load-bearing-span. When the building inspector visited the job site and observed the doubled two-by- sixes, he issued an oral correction notice to the Respondent's subcontracting framing personnel on the job. When he returned to inspect the job later, after sufficient time had elapsed to make the correction, he found that the two-by-sixes were still in place and the sheetrock installers were already covering the interior walls of the garage. This would soon have the effect of concealing the inadequate, doubled, two-by-six header. Because of this, the building inspector immediately issued a stop work order on the job. If the Respondent had properly carried out his duties in supervising this job, he would have been aware that the two-by- sixes had been substituted for two-by-twelves or their equivalent. Even if he had not initially realized that the two-by-sixes were installed and were inadequate (although a competent contractor should have), he should have seen that the two-by-sixes were replaced when the building inspector called it to his or his subcontractor's attention. A stop work order should not have been necessary in order to effect safe construction of the window header in question. Eventually the problem was corrected by having the truss company engineers involved design a steel "flitch plate" to adequately construct and install a safe window header in the space that was available. This was done by sandwiching the steel plate in-between two two-by-sixes, which then made an adequate header support member easily installed in the available space. The Respondent either negligently failed to note that the use of the two-by-sixes was inadequate or failed to adequately supervise the framing work on the job. Alternatively, if the Respondent knowingly allowed the available space for the header at the top of the window too dictate the size of the header, rather than using Code required window-opening span tables to calculate an effective alternative, he would have engaged in misconduct in the practice of contracting. The record does not clearly reflect, however, that he knowingly allowed the two- by-sixes to be used for this reason, although it does establish that he should have been aware of their use and of their inadequacy and promptly acted to correct it when it was called to his attention, which he did not do until the stop work order was issued. The Griggs House On November 10, 1986, Dr. Griggs, after having solicited proposals for construction of his residence, accepted a proposal from the Respondent to construct a residence for him and his wife at 3552 Trillium Court, Tallahassee, Florida. The cost of the construction was to be $170,090.00. The original proposed cost, prior to the entry of the parties into a contract, was $188,000.00. Certain deletions and changes were made, which resulted in the ultimate contracts price of $170,090.00, however. Construction commenced on the Griggs, residence in February of 1987. A certificate of occupancy was issued in October of 1987. During the course of construction, certain deficiencies in the house were communicated orally and in writing to the Respondent by the Griggs. These included posting of letters and the leaving of "post-it" notes on the spot of certain areas of construction which the Griggs believed to be defective or which they wanted changed for some reason. The frequent changes in construction elements proposed by the Griggs, many of which resulted from changes of mind by their concerning how they wanted certain elements of the construction performed, culminated in a strained relationship between the Griggs and the Respondent. Ultimately, they sent a number of registered letters to the Respondent concerning their dissatisfaction with the manner in which the project was being completed and concerning items they wished performed by the Respondent. Some of these letters were returned undelivered and unopened. Their differences culminated in Dr. Griggs' decision, after ten months of construction, to finish the house himself because he felt that the Respondent was not responding to his requested corrections or changes. The contract had specified that the Respondent had six months to complete the house. Some of the delay, at least, was the responsibility of the Griggs, caused by their requesting various changes in the way the house was constructed and to be constructed. In any event, after Dr. Griggs terminated the relationship with the Respondent, he called the Tallahassee Builders' Association, lodged a complaint, and received the recommendation of that Association that he hire an engineer to review the construction performed to date. Ten days after Dr. Griggs received a letter from the Respondent stating that he was leaving the job, Dr. Griggs gave the Respondent a letter terminating his contract. A number of significant construction deficiencies and errors exist in the manner in which the Respondent constructed the house. These include problems with the foundation and basement wall construction, certain framing deficiencies in the walls and roof, the front porch, inadequate water damage protection, and improper installation of correctly engineered framing components. These deficiencies are treated in detail below. The Respondent fabled to install adequate steel reinforcement and to adequately fill cores or cavities in the concrete blocks of the outside, western-most basement wall, in that area of the wall where backfall or earth rested against its outside surface. This wall was constructed of 12-inch concrete blocks, with the normal cavities or cores in each block. The blocks were laid by the brick mason in "courses" or rows, one block course on top of the course below it to a height of nine feet. Each core thus represented a vertical cavity of approximately nine feet in the wall. The architect's plans called for inserting vertical steel reinforcing rods or "rebar" in these cores or cavities, 48 inches apart, pouring them full of concrete, with the vertical rods extending to the top of the nine-foot wall where a solid concrete lintel was to be poured over and around them. The plans also called for horizontal steel reinforcing rods to be placed at two-foot intervals from the bottom to the top of this wall in the area of wall where backfill or earth was retained on the outside of, and bearing against, the wall. Although vertical steel dowel rods were installed from the foundation footing extending into the vertical concrete block wall in this west wall, they only extend in the case of each such dowel, from two feet, three inches to 36 inches above the foundation footing. The plans call for each vertical rod to extend the full height of the nine-foot wall where earth bears against it. (See Respondent's Exhibit 10 and Petitioner's Exhibit AA in evidence, as well as the testimony of Martin Page, Engineer). None of the vertical steel rod reinforcing in the 12-inch block wall was present from the bottom to the top of the nine-foot wall. None of it extended vertically more than three feet above the footing. Additionally, the cores of this basement wall were not poured solid with concrete, as specified in the plans for the earth-retaining portion of the wall. In fact, less than 50% of the cells in the earth-retaining portion of this wall were poured solid. The test corings performed by Ardiman & Associates, depicted in Respondent's Exhibit 10 and in the testimony of Martin Page and others, establishes that, through this coring method and by visual inspection thereafter, this reinforcing in the wall was missing in large part. Nearly all of the specified horizontal rebar steel was also omitted, although the Respondent maintained that he used "durawall" material on every two courses of block, instead of the specified horizontal rebar steel. He maintained this was equal to the horizontal steel as an adequate reinforcement. This was not established to be adequate, however, in terms of proper engineering and construction and, in any event, was not in accordance with the plans. If it was impossible, as the Respondent maintained, to put the horizontal steel in the mortar joints because of lack of sufficient space between the blocks in those joints, he should have called this to the architect's attention and obtained an alternative solution approved by the architect who drew the plans. Construction in this manner, for the earth-bearing portion of the west wall, renders it deficient in the structural strength demanded by the design and renders it of less structural integrity in the future with possible cracking and leaking to result. The potential for future damage caused by the inadequate reinforcing in the wall is alleviated somewhat by the fact that the earth retained by the wall does not extend to its full height, nor does the entire wall have to support earth loading. Only 28 feet of the wall has earth backfill extending upward for a portion of the wall's height. In any event, however, to correct this failure to follow the architect's design (which was adequate as designed) will be costly and time consuming, although it was not clearly shown that the problem is of sufficient seriousness to justify constructing a retaining wall on the outside of the present west basement wall at issue, as the Petitioner maintains. The Respondent constructed a front porch on the residence by placing the brick forming the porch floor over felt tarpaper and plywood, as well as framing members which were not "pressure treated." Since they are not pressure treated, they are susceptible to water-induced rot damage. The felt paper, itself, is not impervious to water and is not adequately waterproofed. Accordingly, the non-pressure treated wood beneath the brick and felt paper, including structural members under the porch, are already rotting; and the bricks and mortar of the porch are loose due to being placed on an unstable, water-damaged surface. The water runs down into and erodes into the basement space below and adjacent to the porch location. The plans originally called for a roof to be placed over this porch floor which would have alleviated the water damage presently being caused. Because of a change agreed to by the Griggs and the Respondent to place three windows above this porch, the Respondent deleted the porch roof. Although the deletion of the porch roof may, indeed, have been necessitated by the addition of the three windows which the Griggs desired, the Respondent failed to explain to them the consequences of deleting the protection of the roof over that porch; and, indeed, knowing that the roof was to be deleted, the Respondent should have taken steps to insure that the porch floor was constructed of waterproof, stable materials. As constructed, there is a load-bearing wall on part of the support system that underlies the brick porch, creating a dangerous situation over time because of weakness caused by water- induced wood rot. The construction of the porch was shown not to comport with the SBC, particularly Section 1703.15, because it was not constructed with pressure- treated wood or in the alternative, because it did not have an impervious material between the brick porch floor and the wood beneath. This method of construction also violates SBC at Section 1409.4 because the masonry floor rests on a combustible wood material. Additionally, the exterior trim on the house lacked proper flashing and where it contacted concrete was not pressure treated. The windowsills were improperly installed so that the drip edge on the window casing could not function properly in conducting water away from the house. Dr. Griggs requested that the Respondent construct a crawlspace storage area adjacent to the finished portion of the basement, and the Respondent agreed to do so. This space was not included in the original plans, but the Respondent agreed to construct it at Dr. Griggs' behest in order to accommodate Griggs' wishes. He never informed Dr. Griggs, however, that in order to get sufficient space in the storage area, the Respondent would have to excavate the earth in the area in such a way that the floor slab poured in this basement crawl space would be significantly lower than the existing perimeter foundation footing. This resulted in exposing the soil under the existing foundation footing above the poured slab. This allowed the soil under the foundation footing to erode due to passage of water from outside the house, particularly from the area of the front porch, so that soil was eroded from under the foundation footing in this area. The creation of such a condition ir1i the crawlspace storage area is a serious structural problem. It could cause, if allowed to progress uncorrected, cracking of the foundation or collapse of the walkway above it on the outside of the house. This condition is a serious departure from prevailing standards of construction practice for similar foundations in Leon County and violates the SBC, specifically Section 1302.1. This provision requires that the bottom of foundation footings and foundations extend no less than 12 inches below the finished earth grade. By excavating out and installing the slab floor beneath the foundation footing, the result was that the foundation footing was resting approximately 12 inches above the finished grade on the inside of the footing. The earth beneath the exposed footing eroded away until the matter was corrected by the installation of brick and cement "parging" to retain the earth beneath the footing. This corrective measure was specified by the architect for the job and was eventually accomplished. In the same area of the basement crawlspace, the Respondent also permitted non-pressure-treated bottom plates to be installed in direct contact with the concrete, which can promote water-induced rot in violation of Section 1703.4, SBC. Although the Petitioner charged that the basement floor slab, itself, was not poured within an acceptable tolerance of thickness, the evidence, consisting of the results of the Ardiman engineering investigation of this matter, in evidence as Respondent's Exhibit 10, showed that the basement floor slab averaged approximately 3.97 inches thick, which is sufficient to meet the building code requirements. It was shown, however, that the slab does not rest on top of the foundation footings on the southwest or north portions of the foundation, as specified in the plans. Although the Respondent maintained that pouring this slab as a monolithic slab with thickened portions under the load- bearing areas successfully addresses this problem, in fact, the evidence shows that some of those load-bearing, thickened portions of the slab are not the full required ten- to twelve- inch thickness, but rather are on the order of six to nine inches thick, with reinforcing steel not encased in concrete at at least one point. This is an insufficient footing under the interior walls of the basement. Thus, although the slab is of a sufficient average thickness to meet the building code requirements, the thickened portions of the slab are not sufficient to support load-bearing walls within the context of compliance with good construction and engineering practices established by the Petitioner's expert witnesses. A floor truss or joist was installed upside-down, due to a subcontractor's mistake. In order to properly comply with engineering specifications, the addition of "gusset" plates was required according to the engineering specifications furnished by the truss manufacturer. The repair was appropriately made. Misplacement of this truss should have been readily apparent to the contractor if propel supervision had been effected on the job. The particular circumstance of the truss placement, configuration and loadbearing requirements made structural failure as a result of its upside-down placement unlikely, however. The Respondent failed to insure, by adequate supervision, that certain walls were properly framed according to the architect's plans. In this respect, the ceiling height for the basement was designed in the plans to be nine feet; but the Respondent allowed the walls to be framed in such a way as to result in an eight-foot ceiling height. The upper floor is framed to accommodate a nine- foot ceiling according to the plans, however. Three load-bearing door headers (load-bearing members spanning the top of door openings in the basement) were constructed in such a way as to not be in contact with the wall framing above or the vertical supports or "cripples" below. The cripples were cut too short. The owner was required to take the remedial measure of hiring a carpenter, who jacked up the support headers above these door openings to the correct load-bearing positions and then replaced the cripples with cripples of proper length so that they would bear properly against the headers and prevent any sagging or cracks from developing in the walls, or improperly-fitting doors above. This could result from sagging of the wall plate, wall and floor above these improperly fitted headers and cripples. Additionally, horizontal purlin supports needed to be added to interior walls between studs in the basement as a remedial measure, after the Respondent ceased work and left the job site, in order to prevent bowing of studs from downward loading. The endmost stud of a non-load-bearing wall in the basement contacted or "butted" against a concrete block wall. It was not treated to resist moisture-caused rot. The use of non-pressure-treated studs at points where that wood must bear against concrete is contrary to prevailing standard building practices, since only pressure-treated rot-resistant lumber should be in contact with moisture-prone concrete. This condition had to be repaired by a carpenter retained by Dr. Griggs. Common-framing was constructed on top of and between two trussed roof areas. The roof joists were insufficient for the spans covered,. and the bearing points of the ridge beam were improperly braced. The effect of this was to create a soft or flexible roof section in this common-framed area. This means that with a live load atop the roof, such as a person walking on the roof, the roof would `flex, which can cause failure over time as the roof ages due to flexing, which will cause leakage. The original plans for the roof call for a polynesian-type roof line, that is, with gables and a compound or cantilevered pitch. The home was built, however, with a conventional, straight-pitched roof. It was not established, however, that Dr. Griggs and his wife had never authorized the change from the polynesian roof line to a straight pitch. Rather, there had been discussions between the Respondent and the Griggs before entering into the contract about ways in which they could save costs. In response to these discussions, the Respondent had Ben Sheppard, the draftsman for the truss system, redesign the roof system to depict a straight or conventional pitched roof. The weight of the evidence indicates that the Griggs approved of this change in the roof before entering into the actual contract. Upon questioning of Dr. Griggs by roof truss installer, Reggie Brown, when the trusses were delivered to the site and when the trusses were installed on the upper floor framing, concerning them not providing for the cantilevered, polynesian pitch, Dr. Griggs acknowledged that he and the builder had agreed to the different design. The testimony of Marvin Moran, a general contractor and the superintendent of the job, indicates that on an occasion when he, Reggie Brown and Dr. Griggs were present together on the job site with the construction plans, and were discussing the roof design, at the sheathing stage, Dr. Griggs again acknowledged that he and the Respondent had agreed to the reconfiguration of the roof. This reconfiguration was taken into account in arriving at the final contract price depicted above. While the best practice in the construction industry indicates that an owner and a builder should execute a written change order for such a major alteration of a construction project, it is common practice for such changes to be done by verbal agreement. In any event, the preponderant evidence of record indicates that this change was effected prior to the formal contract involved herein being entered into by the Griggs and the Respondent. Finally, the Respondent did not insure that proper flashing was installed between the rear deck surface and the house. The flashing was necessary, especially since the rear deck level was the same level as the interior floor of the house and was necessary to prevent water from penetrating the house walls at the point where the decking joins the house. Although caulking was used to substitute and was performed with an appropriate material, the mere use of caulking in such an application is not accepted, good building practice and does not comport with appropriate building and contracting standards in the Leon County construction community.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered suspending the Respondent's building contracting license for one year and requiring the Respondent to complete such continuing education courses, in those areas of residential contracting represented by the deficiencies found herein, as the agency deems appropriate. DONE AND ENTERED this 24 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 24 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2954 Petitioner's Proposed Findings of Fact 1-17. Accepted. 18. Accepted, except to the extent that the clear and convincing evidence of record does not establish that representations made by the Respondent were fraudulent because it has not been established that he made any misrepresentations knowing at the time that they were made that they were false or that he did not intend to fulfill them. 19-23. Accepted, except that the first sentence of No. 23 is a conclusion of law and not a proposed finding of fact. 24-27. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 31-33. Accepted. 34. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 35-42. Accepted. 43. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 44-57. Accepted. 58. Rejected, as subordinate to the Hearing Officer's finding of fact on this subject matter, in that although the bookshelves were clearly substandard, there has been no proof that the Respondent made any fraudulent misrepresentation as to the quality of materials and construction, but rather differed in his opinion of the quality of the materials and workmanship from the opinion of Dr. Reeves and was negligent in the selection of materials and in the use of them in constructing the shelves. 59-68. Accepted. 69-75. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 78-84. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not supported by clear and convincing evidence of record as to the matter of basement slab thickness itself. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 88-93. Accepted. Accepted, but not in itself materially dispositive of the issue concerning the pitch of the roof. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Heading Officer's findings of fact on this subject matter, and as not, in accordance with the clear and convincing evidence of record, in that it is found above that the owners did consent to the alteration in the roof configuration or design. Accepted. Accepted. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact have all been considered and in some instances, accepted, and in many instances, rejected in the body of this Recommended Order. It is not possible, however, to separately rule on improperly stated proposed findings of fact because the Respondent did not separately state the proposed findings of fact, but rather intertwined them with factual and legal arguments, discussions and recitation of evidence and testimony. Consequently, separate and coherent rulings on individual proposed findings of fact cannot be made. All factual and legal arguements raised in the Respondent's post-hearing pleading styled "Recommended Order" have, however, been considered and weighed in the rendition of this Recommended Order. COPIES FURNISHED: Mr. Daniel O'Brien Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert D. Newell, Jr., Esq. NEWELL & STAHL, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Robert L. Fountain, Jr., Pro Se 2124 Shady Oak Drive Tallahassee, FL 32303
The Issue This case concerns the issue of whether the Petitioner should be granted an exemption to construct approximately 2,100 linear feet of seawall along the western and southwestern shorn of Fisher Island, located in Biscayne Bay, Florida. In the alternative Petitioner seeks to obtain a permit for such construction nod accompanying fill in the event that it does not qualify for an exemption. At the final hearing Petitioner called as witnesses John f. Guttman, Jon Staiger, J. Van De Kreeke and Howard Teas. Tee Respondent called as witnesses Richard E. Walesky and Jeremy Allen Craft. The Petitioner offered and had admitted into evidence 93 exhibits. The Respondent offered and had admitted into evidence 7 exhibits. Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact At the final hearing the parties stipulated to certain facts and based upon that stipulation those facts are found as follows: Petitioner FISHER ISLAND, a Florida limited partnership, owns the entire western and southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. FISHER ISLAND owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Fund) sold the lands in question in 1920, and FISHER ISLAND has purchased those lands along with most of the island. The lands owned by FISHER ISLAND are set forth in the legal descriptions contained in Deed Nos. 16,336, 16,336c, and 18110 from the Board of Trustees of the Internal Improvement Trust Fund and in two deeds dated October 31, 1979, from Fisher Island Associates, Inc., and Cocolobo Corporation to Island Developers, Ltd. Acting through the Department of Natural Resources (DNR), the Board has admitted FISHER ISLAND'S ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore a seawall. On or about October 27, 1981, FISHER ISLAND applied to Department of Environmental Regulation (DER) for a dredge and fill permit to restore an existing seawall and thereby bulkhead about 2 100 linear feet of the southwestern shoreline of the island at a distance of IS feet or greater from the shoreline. FISHER ISLAND initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.812(2)(a) of the Florida Statutes and Rule 17-4.04(9)(h) of the Florida Administrative Code. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach, submitted their report of a visual inspection of the site made by Mr. Walesky in November, 1981. Mr. O'Donnell did not inspect the site. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. He took no measurements and no soil, water, or any other kind of samples. He did take panoramic photographs of the shoreline. Mr. Walesky observed in his report that 8 to 10 mangroves were scattered over several hundred feet of the area at issue, along with some Australian pines, and that a large dredging pipe was tied up to the trees along the same portion of the shore. He concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner FISHER ISLAND that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit. On January 4, 1983, Mr. Walesky returned to the site for an inspection of the site's biological characteristics and value and an assessment of the projected impacts of the proposed seawall restoration on the environment. Again, he took no measurements or samples. He did not note the presence of any grass beds, oyster beds, or clam beds. He did take certain photographs of the shoreline. Mr. Walesky noted that cost of the area was sandy and clean, with algae-covered boulders the main form of life present. On the basis of Mr. Walesky's two inspections, DER issued its Intent to Deny the permit requested by FISHER ISLAND, on April 15, 1983. The shoreline along which Petitioner wishes to place the proposed seawall runs primarily along the southwest side of Fisher Island. This area is adjacent to a channel called Norris Cut. The depth of the water along Norris Cut drops abruptly from as little as 2 feet to as deep as 18 feet. Over the past years there has been substantial erosion along this shoreline. However, there is a very gradual slope from the shoreline to a point off-shore where there is an abrupt and steep drop-off into the cut. The point where this drop- off occurs is in a straight line along this shoreline and is in direct line with the old seawall located along the Garwood Estate which is located in part along the same shoreline but east of the proposed seawall area. This area of the shoreline is constantly impacted by strong currents and wave action. Aerial photographs from as early as 1945 reveal that the straight line along which the abrupt drop- off occurs has remained straight and in the same position since 1945. This line and the resulting contours are very unusual along shores of is lands in this area and is consistent with the existence of an artificial structure such as a seawall holding the sand along the shore in place. Typically shorelines in this area which are exposed to this type of tidal, wave and current action have a more gradual slope and a more meandering slope or shoreline. Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall. There presently remains along the western tip, two rows of tieback pilings, totaling 80 in number. These tiebacks at one time were part of the seawall which was built along this shoreline. Seaward of one of these groups of tiebacks there remains a small area where the pilings and planks of the old seawall are still visible. A second group of tiebacks is located along the southwest shore and number 42. These two groups of pilings appear to be parallel to the line of drop-off and functioned as part of a seawall along this shore. In the early 1960's pilings along the drop-off line extended above water level and were visible along approximately 50 per cent of the area of the proposed seawall. These pilings were a navigational hazard and in 1981 were nipped off at the sand bottom in order to avoid boating accidents. These piles were part of the old seawall. Just east of the area of the proposed seawall there is a marina entrance which has been cut into the shoreline, dredged, and bulkheaded. At one point during the construction of the bulkhead that runs along the shore the contractor veered off course a small amount and hit the remaining portion of the old seawall in that area. The old seawall was stable enough that pilings could not be driven and so the pilings, planks and cables of the old seawall were removed. In order to dredge and clear the entrance to the marina it was also necessary to remove the old seawall located in the entrance area. The various experts called by Petitioner and Respondent gave different definitions of a seawall. John R. Guttman, an expert in civil and coastal engineering, marina planning and seawall construction, testified that the purpose of a seawall is to retain fill and that a "functioning seawall" did not have to be visible above water. Dr. Jacobus Van De Kreeke, an expert and Ph.D. in coastal and oceanographic engineering, testified that the function of a seawall is to retain lands, to prevent land from sliding into the ocean, and to protect, uplands from wave action. Dr. Van De Kreeke based his definition primarily upon the Shore Protection Manual of the Army Corps of Engineers and opined that the structure along the drop-off line in the area of the proposed seawall is still a functioning seawall. Mr. Walesky, who is an expert in marine ecology, testified that a seawall functions to separate the land from the sea. Jeremy Craft, an expert in water quality and marine ecology, argued with the definition of a seawall given by Mr. Walesky. Mr. Walesky and Mr. Craft are employees of the Respondent, DER, and Mr. Guttman and Dr. Van De Kreeke testified on behalf of Petitioner. The term "seawall" is not defined in the DER rules or in the Florida Statutes. Up to some point in time in the past there was a complete and functioning seawall along the shore involved in this application. The subsurface portion of that seawall remains to date and continues to perform the function of that portion of a seawall which lies below the surface and in the soil. The shoreline involved, at one time bad 8 to 10 white mangroves growing in and among the Australian pines which grew along the shore in the same area. The mangroves were in a line no more than one plant deep. Prior to Mr. Walesky's second inspection these mangroves were apparently pulled out by dredge pipes which had been anchored to them by someone other than Petitioner. It is likely that without the Australian pines these mangroves would have been washed away. Of the three types of mangroves the white mangrove lives farther up- shore and is less susceptible to growing or becoming established in the inter- tidal zone. Red mangroves live out in the water, grow farther into the inter- tidal zone and are considered to be of higher value than white mangroves in a mangrove eco-system. A mangrove eco-system is beneficial to the environment. A few singular mangroves do not constitute a mangrove eco-system. Mangroves become established by seedlings becoming trapped along shore and taking root. In this area of the Fisher Island shoreline, the shore is constantly washed by swift currents and tidal and wave action. There are no extended periods of no motion because of the rapid turnover and change in direction of tides in this area. Some of the swiftest currents in the area of Norris Cut and Fisher Island occur directly along and adjacent to this shoreline. The result is that suspended materials such as mangrove seedlings have no opportunity to accumulate along the shoreline. These same factors also result in a very sparse rack line in this area. It is highly unlikely that this shoreline would support a mangrove fringe. In the fall of 1983 when Dr. Howard Teas, an expert marine biology, water quality, and coastal and mangrove ecology, inspected the area involved he found no mangrove seeds along the rack line on Fisher Island when they were present elsewhere in the area. Dr. Teas as well as Dr. John Steiger, opined that this high energy shoreline is not conducive to the establishment of a mangrove fringe and it is highly unlikely that a mangrove fringe will become established along this shore. Mr. Walesky in his inspection prior to the final hearing observed sesuvium grass along the shoreline and saw one red mangrove seedling which had become rooted in the sesuvium grass. Mr. Walesky agreed that this shoreline is a high velocity area, but opined that a number of years from now mangroves may begin to grow along this shoreline. Some grass beds do appear in the inter-tidal area which would be filled under this application. These grass beds cover about 3.8 to 4 per cent of the total area involved. These beds are sparse with very low density. Haladule and halophila are the grasses found along this shore. The numerous photographs and aerial photographs presented in evidence revealed no human activities or construction along this shoreline which could have prevented the establishment or growth of these grass beds in this area over the last three or four years. Both haladule and halophila can become established in one year. Brownish algae also appears along this shoreline and forms a thin felt-like mat in the areas where it appears. The water in this area is very turbid and there are no oyster or clam beds. The number and density of organisms along this shoreline are both very low. The area along this shoreline is one of poor productivity. Samples taken by Petitioners expert in the vicinity of this shoreline had a density of organisms approximately 1710 the absolute density of typical areas of Biscayne Bay. The soil along the shoreline involved is primarily sandy silt. This type of soil has some cohesiveness but not very much. Neither party in the Instant case did testing to determine the specific cohesive properties of the soil along Fisher Island and Norris Cut. The proposed seawall will begin at a point approximately 70 to 100 feet west of the marina entrance. Approximately 500 to 530 feet of the westernmost portion of the proposed seawall will be located beyond or outside of the boundary of the Biscayne Bay Aquatic Preserve. The seawall will be constructed of a slab and pile concrete system. This construction approach is an acceptable method of constructing a seawall in this area and is identical to the structure that was permitted by DER in 1979 for another area of shoreline of Fisher Island. There is a cap along the top of the proposed seawall which will prevent stormwater runoff from the island into the adjacent waters of Norris Cut.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order granting the exemption of Petitioner's seawall as requested. DONE and ENTERED this 9th day July, 1984. MARVIN E. CHAVIS 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 9th day of July, 1984. COPIES FURNISHED: Timothy A. Smith, Esquire 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL"). Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation. On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home. The Respondent submitted a plan of the proposed construction along with the consultation request. At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property. The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall. On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation. And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck. On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs. The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit. The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations. Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground. After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities. The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit. The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns. The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office. The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department. The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee. The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home. The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor. A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck. On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B). The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work. The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed. The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck. The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law. On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland. The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent. The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990. The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent. The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck. On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house. On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit. On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk". On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities. The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL. On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action. The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth. The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure. The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure. The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck. Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request. Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved. The Respondent was agent for Scantland and responsible for obtaining all necessary permits. The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes. DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44). The Department's proposed finding of fact 36 is covered in the Preliminary Statement. The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc. 107 Corporation Way, Suite B Venice, Florida 34292 Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
