The Issue The issue is whether Respondent, Department of Environmental Protection ("DEP"), should grant the applicant, Pelican Resort Developments, Inc., a coastal construction control line ("CCCL") permit. The applicant seeks to construct a condominium project in Destin, Florida. Portions of the project are seaward of the CCCL for Okaloosa County.
Findings Of Fact On March 28, 1994, DAG Architects and Pelican Resort Developments, Inc., as agents for Major Development Ltd., filed an application pursuant to Section 161.053, Florida Statutes with DEP for a coastal construction control line ("CCCL") permit in order to construct a condominium project, portions of which would be seaward of the coastal construction control for Okaloosa County, Florida. The application was assigned DEP number OK-115. The condominium project to be developed pursuant to Permit OK-115 is known as Pelican Beach Resort, and is being developed by Pelican Resort Developments, Inc., The Pelican Beach Resort project includes a 19-story building with 340 condominium units, two swimming pools, 595 parking spaces, and boardwalks to the beach. On August 13, 1993, Pelican Resort Developments, Inc., entered into a contract with Major Development, Ltd., to purchase from Major Development, Ltd., the property on which the Pelican Beach Resort condominium project is to be constructed. On September 8, 1994, DEP determined to grant the March 8, 1994, CCCL application for permit OK-115 subject to 10 special permit conditions. Issuance of that "Final Order" constituted intended final agency action by DEP. Special Permit Condition 3 required the permittee to provide DEP with written evidence that a public notice regarding DEP's approval of permit application number OK-115 was published in a newspaper. Before publication, a draft of the notice was to be provided to DEP for review and approval. The permittee provided DEP with a draft public notice. DEP approved the draft and the notice was published in the Northwest Florida Daily News, which is published daily. DEP was provided with proof of publication of the notice by the permittee. The public notice advised substantially affected persons of their right to request an administrative hearing in accordance with the provisions of Section 120.57, Florida Statutes, by filing such a request with the DEP Office of General Counsel. During the processing of application number OK-115, DEP received approximately 100 letters from neighboring property owners within the Regency Towers condominium, located adjacent to the project site, objecting to the CCCL permit for the Pelican Beach Resort condominium project. Adjacent property owners were well aware of the proposed Pelican Beach Resort condominium project as the CCCL application for it was processed by DEP. On September 21, 1994, Petitioner, Regency Towers Condominium Owners Association, Inc., filed a Request for Formal Administrative Hearing with DEP requesting that DEP withdraw its issuance of permit OK-115 for the Pelican Beach Resort condominium project. The members of the Regency Towers Condominium Owners Association, Inc., are the record owners of apartments within the Regency Towers condominium. The owners of the condominium apartments own their apartments plus an undivided interest in the common property. Regency Towers Condominium Owners Association, Inc., does not own any real property within the Regency Towers condominium. When the CCCL application was filed on March 28, 1994, Major Development, Ltd., was the owner of the property where the proposed condominium project is expected to be developed. That entity continued to own the property until October 13, 1994. On October 13, 1994, Pelican Resort Developments, Inc., which served as an agent for permit application OK-115, purchased from Major Development, Ltd., 10.9 acres of the property on which the Pelican Beach Resort condominium project is to be constructed. The land purchased by Pelican Resort Developments, Inc., includes all land seaward of the CCCL which is at issue in this proceeding and permit OK-115. Pelican Resort Developments, Inc., received a warranty deed for the property from Major Development, Ltd., and obtained title insurance from First American Title Insurance Company for the property. On November 8, 1994, Pelican Resort Developments, Inc., as the new owner of the property seaward of the CCCL subject to permit OK-115, filed a Permit Transfer Agreement with DEP, and as evidence of its ownership of the property, it provided DEP with a recorded copy of its warranty deed to the property along with the Permit Transfer Agreement. On November 8, 1994, DEP approved Pelican Resort Developments, Inc.'s request to transfer permit OK-115 from Major Development, Ltd., to Pelican Resort Developments, Inc. DEP's rules authorize the transfer of CCCL permits to new property owners. Rule 16B-33.016(1), Florida Administrative Code. Such transfers are not uncommon. CCCL PERMIT APPROVAL CRITERIA The CCCL The CCCL is a jurisdictional line, it is not a line of prohibition. DEP routinely authorizes the construction of structures seaward of the CCCL, and issues approximately 1,500 to 1,600 permits per year authorizing such construction. Evidence of Local Approval The Pelican Beach Resort project subject to permit OK the City of Destin. Therefore, written evidence provided by the City of Destin was given to DEP by the applicant for permit OK-115 showing that the proposed Pelican Beach Resort condominium project does not contravene local setback requirements, or zoning, or building codes. Evidence of Ownership During the processing of application OK-115, the applicant provided DEP with sufficient evidence that Major Development, Ltd., owned the property for which permit OK-115 was requested. From the time application OK-115 was filed with DEP on March 8, 1994, until October 13, 1994, Major Development, Ltd., was the owner of the property for which permit OK-115 was requested. On October 13, 1994, Pelican Resort Developments, Inc., purchased from Major Development, Ltd., the property for which permit OK-115 was requested. Pelican Resort Developments, Inc., has provided DEP with sufficient evidence of its ownership of the property for which permit OK-115 is requested. First American Title Insurance Company has insured Pelican Resort Developments, Inc.'s interest in that property as fee simple ownership. It is this property for which permit OK-115 was requested and which will be developed pursuant to permit OK-115. Public Access Construction of the Pelican Beach Resort condominium project pursuant to permit OK-115 will not interfere with public access along the beach. The portion of the beach used for public recreation is seaward of the primary dune and is of substantial width. The structures constituting the Pelican Beach Resort condominium project are substantially landward of the primary dune. By stipulation of the parties, the Pelican Beach Resort condominium project will not interfere with public access along the beach. Sea Turtles As admitted by the parties, reasonable assurance has been provided in relation to the Pelican Resort Developments, Inc., condominium project that nesting sea turtles and hatchlings will be protected. Further, permit OK-115 contains adequate conditions to provide protection to nesting sea turtles and hatchlings and their habitat. The parties have also stipulated that the project will not have an adverse impact on sea turtles, hatchlings, or their habitat. Structural Requirements The parties have stipulated that the proposed structures within the Pelican Beach Resort project comply with all applicable structural requirements, which includes those in Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes. Compliance with Siting Criteria An accreting shoreline The shoreline adjacent to the proposed Pelican Beach Resort condominium project is stable and in an accretional mode. The shoreline is propagating seaward over time, and the beach is accreting. Between 1985 and 1990, the beach adjacent to the proposed Pelican Beach Resort condominium project accreted at a rate of ten feet per year. The shoreline for a distance of 13,000 feet to the east of East Pass is accreting. The proposed Pelican Beach Resort condominium project is approximately 10,000 feet east of East Pass. Seasonal high water line The elevation of the seasonal high water line ("SHWL") for the site of the proposed Pelican Beach Resort condominium project is approximately 3.3 feet. All major structures within the proposed Pelican Beach Resort condominium project are several hundred feet landward of the seasonal high water line. Since the shoreline is accreting, it can be anticipated that the SHWL 30-years hence will be seaward of its current location. Despite the fact that the shoreline adjacent to the site of the proposed Pelican Beach Resort condominium project is accreting, DEP has assigned an erosion rate of one foot per year for the shoreline. Using the DEP erosion rate of minus one foot per year, the SHWL in 30- years will only be 30 feet more landward than where it currently is. All the major structures within the proposed Pelican Beach Resort condominium project will be at least 230 feet landward of the SHWL in 30-years. However, since the shoreline in the area of the site is accreting, the SHWL will actually move seaward of where it is today. The proposed Pelican Beach Resort condominium structure and all structures within the project except for minor structures will be landward of the seasonal high water line within thirty years of November, 1994. Vegetation Structures constituting the proposed Pelican Beach Resort condominium project are substantially landward of the vegetation line at the site, and DEP typically approves construction projects that are closer to the vegetation line than Pelican Beach Resort. Pelican Resort Developments, Inc., as the permittee, is required by special permit condition number 4 to implement a detailed dune restoration plan. Dune restoration will include the construction of a coastal barrier dune with a minimum crest elevation of + 15 feet NGVD, the planting of vegetation -- sea oats, railroad vine, cordgrass and Golden Aster -- on the dune in staggered rows 18" apart, and the long term maintenance of the dune and vegetation. The restored dune shall be a preservation area where no construction is allowed except for pedestrian dune crossovers. The dune/vegetation restoration plan will enhance the area. Dune line Structures constituting the proposed Pelican Beach Resort condominium project are approximately 150 feet landward of the primary dune system on the site. It is typical for DEP to approve major structures, such as those proposed for the Pelican Beach Resort condominium project, that are closer to the dune system than those proposed in permit OK-115. Beach/Dune Impacts The Pelican Beach Resort condominium project has been designed to have a minimum adverse impact on the beach-dune system, because the proposed structures are landward of the active beach; substantially landward of the primary dune; and the beach is accreting. The Pelican Beach Resort condominium project is located a sufficient distance landward to preserve dune stability, and to allow natural recovery following storm-induced erosion. Moreover, the shoreline is accretional; the beach stable and the structures within the Pelican Beach Resort condominium project are sited well landward of the dynamic portion of the beach to allow for recovery. Impacts on Adjacent Properties The Pelican Beach Resort condominium project will not have any adverse impact on the beach/dune system of adjacent properties. Structures within the project are too far landward of the dynamic portion of the beach to adversely affect adjacent properties. The unique dune/vegetation restoration and enhancement plan that will be implemented as part of the project will actually enhance the dune system in the area. Line of Construction The condominium building for the Pelican Beach Resort project is 40 to 55 feet landward of the adjacent Regency Towers condominium building. To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted. The line of construction represents the seaward limit of the encroachment of structures along the beach, not the landward alignment of such structures. There are a sufficient number of structures within the immediate area of the proposed Pelican Beach Resort condominium project to establish a continuous line of construction. The line of construction for the Pelican Beach Resort site corresponds closely to the 1978 CCCL. The line of construction for the Pelican Beach Resort site is accurately depicted by Respondents Map Exhibit 32. All of the major structures within the Pelican Beach Resort project are, at a minimum, 40 to 55 feet landward of the established line of construction for the site. The Regency Towers condominium building immediately to the west of the Pelican Beach Resort site is the most identifiable line of construction to the west. Within 1,000 feet of the Pelican Beach Resort site, there are a number of structures that are located much more seaward of the 1978 CCCL and establish a line of continuous construction that is even more seaward of the 1978 CCCL. The Holiday Beach Resort project immediately to the east of the Pelican Beach Resort site does not establish the line of construction because it is landward of the CCCL, is an anomaly, and is also landward of the seaward line of construction established by other existing high rise structures in the immediate area that are similar to the proposed Pelican Beach Resort project. The current CCCL does not establish the line of construction. The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements. Clear Justification Considering the potential impact of the Pelican Beach Resort project on the beach/dune system, issuance of a CCCL permit for the project is clearly justified. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code. AGR-OK-003 DEP and Federal Deposit Insurance Company ("FDIC") entered into an agreement regarding the property to be developed by Pelican Resort Developments, Inc., pursuant to permit OK-115. The agreement was entered into under Section 161.053, Florida Statutes. Such agreements are entered into by property owners and DEP when the CCCL is being reestablished to give the property owner reasonable assurance of how it can develop its property after the CCCL is reestablished. The benefit of such agreements to DEP is that they lessen the chance that property owners will begin poorly designed hasty construction which adversely affects the beach/dune system in order to be grandfathered from DEP permit requirements. A property owner who enters into such an agreement must still obtain a CCCL permit from DEP before constructing on the property seaward of the CCCL. Special Permit Condition 2 of permit OK-115 requires that the permittee, Pelican Resort Developments, Inc., terminate the agreement before DEP will allow the permittee to proceed with construction. The permittee, Pelican Resort Developments, Inc., is committed to terminating the agreement pursuant to Special Permit Condition 2. DEP's intent to issue permit OK-115 was issued pursuant to Section 161.053 Florida Statutes, and DEP's rules, not the FDIC/DEP agreement. In order to approve a project where an agreement is involved, DEP looks for consistency with the overall intent of the agreement. However, when the project is finally permitted, it has to comply with DEP's rules. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Permit Number OK-115, subject to the special permit conditions set forth in DEP's September 8, 1994, order. DONE and ENTERED in Tallahassee, Florida, this 22nd day of December, 1994. DON W. DAVIS 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 22nd day of December, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Accepted, not verbatim. Rejected, legal conclusion. 3.-6. Accepted, not verbatim. 7. Rejected, public notice was provided. 8.-12. Rejected, relevance. Rejected, weight of the evidence. Rejected, relevance. Rejected, subordinate to HO findings. 16.-23. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-23. Accepted, not verbatim. 24. Rejected, legal conclusion. 25.-26. Accepted. 27. Rejected, legal conclusion, relevance. 28.-72. Accepted. 73. Rejected, redundant. 74.-76. Accepted. 77.-78. Rejected, relevance. 79.-80. Accepted. 81.-84. Rejected, redundant. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dana M. Wiehle Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 John O. Williams James Alexander Lindsey & Williams, P.A. Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 James E. Alexander Attorney at Law No. 323, Stanford Pointe 2401 Stanford Road Panama City, Florida 32405 Thomas G. Tomasello Attorney At Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Ste. C Post Office Box 6507 Tallahassee, Florida 32314-6507
The Issue The issue for determination at the final hearing was whether the license of Respondent Willie J. Whittington should be revoked, suspended or otherwise disciplined for the acts alleged in the Administrative Complaint filed May 19, 1982. At the final hearing, Cathi Cox and Dr. Carol E. McWilliams testified for the Petitioner. Petitioner's Exhibits 1-8 were offered and admitted into evidence. The Respondent testified on his own behalf and Respondent's Exhibit No. 1 was admitted into evidence. Following the final hearing, the Respondent furnished the Hearing Officer with written estimates of the cost of the added work performed at the construction site. These estimates have been marked and are admitted as Respondent's Exhibits 2-7. Additionally, official recognition was taken of Palm Beach County Construction Industry Licensing Board Specialty Contractor Standards. Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by the weight of credible evidence or as being irrelevant to the issues determined here.
Findings Of Fact At the final hearing, the parties orally stipulated to the following facts contained in paragraphs 1-6: The Respondent Willie J. Whittington is a certified general contractor having been issued license number CC 006966. The last known address of the Respondent is Whittington & Sons Builders, Inc., 7660 North State Road 7, Pompano Beach, Florida 33067. The Respondent Whittington is the qualifying agent for Whittington & Sons Builders, Inc. On July 28, 1980, Whittington & Sons Builders, Inc., entered into a contract with Carol E. McWilliams to remodel a veterinary office located at 2775 South State Road 7, West Palm Beach, Florida, for the sum of $30,000. Two separate contracts were executed by the parties for the job; the first one in the amount of $30,000 while the second was for $35,000. The $35,000 contract was a falsification and was executed in order to aid Dr. McWilliams in obtaining a larger loan from her bank. To date, the Respondent Whittington has received approximately $30,668.70 from Dr. McWilliams. Although the Respondent did not provide a $2,000 well and septic tank as specified in the contract, he substituted a drain field and pump with a combined value of $1,589.00. Additionally, the Respondent provided extras on the job totaling approximately $2,500, including stucco, plumbing fixtures, tile, locks, a rear door and extra window. Dr. McWilliams was required to expend $536.92 for lighting fixtures when the existing fixtures were stolen from the job site. The Respondent was to have reinstalled the existing fixtures in the remodeled building. The fixtures were stored on Dr. McWilliams' property behind a locked chain link fence. Pursuant to the construction contract, however, the Respondent was not responsible for furnishing electrical or plumbing fixtures. During the course of this project, numerous changes were made in the original agreement. It is uncertain from the testimony how the changes came about; it is undisputed however, that numerous items not contemplated by the agreement were furnished by the Respondent and accepted by Dr. McWilliams. The Respondent obtained a permit to install an air conditioning unit from the county. The unit was installed by the Respondent and his son-in-law, neither of whom are licensed as air conditioning contractors. The Respondent replaced an existing unit which had been stolen and did not perform any duct work in connection with such installation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Willie J. Whittington be found guilty of violating Section 489.129(1)(j), Florida Statutes, and be issued a reprimand. DONE and ENTERED this 17th day of January, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 17th day of January, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Willie J Whittington 7660 North State Road 7 Pompano Beach, Florida 33067 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
The Issue The Florida Construction Industry Licensing Board, Petitioner, seeks to revoke the registered contractor's license of Stephen J. Borovina, Respondent, based on allegations, which will be set forth in detail hereafter, that he engaged in conduct violative of Chapter 468, Florida Statutes. The issue presented is whether or not the Respondent aided or abetted and/or knowingly combined or conspired with Mr. Howard North, an uncertified or unregistered contractor, to evade the provisions of Chapter 468.112(2)(b), and (c), Florida Statutes, by allowing North to use his certificate of registration without having any active participation in the operations, management, or control of North's operations. Based on the testimony adduced during the hearing and the exhibits received into evidence, I make the following:
Findings Of Fact The Respondent is a certified general contractor who holds license no. CGC007016, which is current and active. On or about July 25, 1976, Mr. and Mrs. Julius Csobor entered into a contract with Mr. and Mrs. Howard North for the construction of a home in Martin County, Florida, for a total price of $35,990. Neither Mr. or Mrs. North are certified or registered contractors in the State of Florida. (Petitioner's Composite Exhibit #2). Respondent applied for and was issued a permit by the Martin County Building Department to construct a residence for the Csobors at the same address stipulated in the contract between the Csobors and the Norths, i.e., Northwest 16th Street, Palm Lake Park, Florida. (Petitioner's Composite Exhibit #1). Howard North, a licensed masonry contractor for approximately nine (9) years was contacted by the Csobors through a sales representative from a local real estate firm. It appears from the evidence that North had previously constructed a "spec" house which the local realtor had sold and thus put the Csobors in contact with Mr. North when they were shown the "spec" house built by North. Evidence reveals that North contacted Borovina who agreed to pull the permit "if he could get some work from the job and could supervise the project". Having reached an agreement on this point, North purchased the lot to build the home for the Csobors and he orally contracted with the Respondent to, among other things, pull the permit, supervise construction, layout the home and do trim and carpentry work. North paid Respondent approximately $200 to layout the home for the Csobors. By the time that North had poured the slab and erected the subfloor, the Csobors became dissatisfied with his (North's) work and demanded that he leave the project. According to North, Respondent checked the progress of construction periodically. Prior to this hearing, the Csobors had never dealt with Respondent in any manner whatsoever. According to Csobor, North held himself out as a reputable building contractor. A contractor is defined in relevant part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. . . . real estate for others. . . Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 4th day of November, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Stephen J. Borovina 2347 Southeast Monroe Street Stuart, Florida 33494 J. Hoskinson, Jr. Chief Investigator Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 STEPHEN J. BOROVINA, CG C007016, 2347 S. E. Monroe Street, Stuart, Florida 33494, Respondent. / This cause came before the FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD at its regular meeting on February 10, 1978. Respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did not appear The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor's license of STEPHEN J. BOROVINA. It is therefore, ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked. Respondent is hereby notified that he has 30 days after the date of this final order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. DATED this 13th day of February, 1978. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President ================================================================= SECOND AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD STEPHEN J. BOROVINA, CG C007016, Respondent/Appellant, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 77-1442 FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner/Appellee. / This cause came before the Florida Construction Industry Licensing Board at its regular meeting on August 3, 1979. The respondent was sent the Hearing Officer's findings and recommendations and was given at least 10 days to submit written exceptions to the recommended order. Respondent was notified of the meeting so that respondent or counsel might appear before the Board. Respondent did appear. The Florida Construction Industry Licensing Board, on August 3, 1979, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded, voted to revoke the certified general contractor's license of Stephen J. Borovina, No. CG C007016. On February 13, 1978, the certification of respondent, Stephen J. Borovina, No. CG C007016, was revoked by order of the Florida Construction Industry Licensing Board. On April 25, 1979, the District Court of Appeal of the State of Florida, Fourth District, in Case Number: 78-527, reversed the final order of the Florida Construction Industry Licensing Board. That Court remanded the above captioned case to the Board to further consider the matter and enter such order as it may be advised in conformity with Section 120.57(1)(b)(9), Florida Statutes (1977). In accordance with the decision of the Florida District Court of Appeal, Fourth District, the Board has reconsidered the above captioned matter and finds as follows: The Board rejects the recommended order as the agency's final order. The Board adopts the first paragraph of the hearing officer's finding of fact. The Board, however, rejects the findings of fact found in the second paragraph of the hearing officer's findings. The second paragraph states as follows: A contractor is defined in relevent(sic) part as any person who, for compensation, undertakes to, or submits a bid to, or does himself or by others, construct, repair, etc. real estate for others...Chapter 468.102(1), Florida Statutes. Applying this definition to the facts herein, it appears that the Respondent, at least in a literal sense, satisfied the requirements and obligations of a contractor, as defined in Chapter 468.102, Florida Statutes. Thus, he contracted with North to oversee and/or supervise the project for the Csobors which he fulfilled, according to the testimony of North. Said testimony was not refuted and thus I find that no effort was made by Respondent to evade any provision of Chapter 468, Florida Statutes. Accordingly, I shall recommend that the complaint filed herein be dismissed in its entirety. The findings of fact found in the above-quoted paragraph were not based upon competent substantial evidence. The competent substantial evidence supports a finding that the respondent, Stephen J. Borovina, did not supervise the project and that Borovina evaded the provisions of Chapter 468, Florida Statutes. The following evidence supports the Board's position: There was no written agreement entered into between Howard North and the respondent which indicated that the respondent was to supervise the construction of the Csobors' house (T- 14); It was conceded at the hearing that the only subcontractors or draftmen who worked on the Csobors' house were contracted solely by Howard North and they had no contract whatsoever with the respondent (T-19, 25); The respondent never advised or informed Mr. and Mrs. Csobor that he was the contractor on the job. (T-51); At all times during the act of construction of the house, Mr. and Mrs. Csobor were under the impression that Howard North was the contractor (T-44-51). It is, therefore, ORDERED: That the certification of respondent, Stephen J. Borovina, Number CG 0007016, be and is hereby revoked. Respondent is hereby notified that he has thirty (30) days after the date of the Final Order to appeal pursuant to Chapter 120, Florida Statutes, and the Florida Appellate Rules. Dated this 3rd day of August, 1979. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD BY: JOHN HENRY JONES, President
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
