Findings Of Fact Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983. The property is zoned CG and has been so zoned for many years without change to the present. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately 40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line 100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure. There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay. Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.
The Issue The issue in this proceeding is whether the placement of a window in a sleeping room at Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor (Elsie Miller), an Adult Congregate Living Facility, violates Chapter 400 or Chapter 553, Florida Statutes. This case came to hearing based upon a peculiar set of circumstances. Initially on December 12, 1984, the Department of Health and Rehabilitative Services (HRS), Office of Licensure and Certification, cited Elsie Miller for a deficiency, stating that "Bedroom No. 3 is not provided with a window to the outside for ventilation and light." By letter dated February 11, 1985, Elsie Miller disagreed with the deficiency, citing reasons for the disagreement, and requested a formal hearing on the deficiency. On February 28, 1985, HRS sent a letter to Elsie Miller reiterating the deficiency and denying a waiver for the window in question. Therein, HRS told Elsie Miller that it could appeal the deficiency determination. By letter dated March 12, 1984, Elsie Miller requested a hearing to appeal the decision in the February 28, 1985, letter, without specifying whether it appealed the actual finding of deficiency or the denial of a waiver. The matter was then forwarded to Division of Administrative Hearings for assignment of a Hearing Officer. At no time did HRS issue a Notice of Violation or any other document that would serve as an administrative complaint, nor did HRS seeks to impose sanctions for the alleged violation. Presumably, an administrative complaint would have eventually been issued if Elsie Miller had done nothing to correct the alleged deficiency. Under this set of circumstances, a formal hearing was convened, after which the parties recognized and agreed that the matter was in fact not ripe for hearing. However, to avoid the time and expense of gathering the witnesses and parties at some future time, the parties instead stipulated that the formal hearing should proceed as if an Administrative Complaint has been filed, that HRS would take final agency action based on this Recommended Order, and that this proceeding would conclusively address the issue of whether the window complies with Chapter 400 and Chapter 553 as incorporated by reference in Section 400.444. Petitioner presented the testimony of Jim Valinoti, together with one exhibit. Respondent presented the testimony of Earnest J. Miller, Jr., together with three exhibits. The parties submitted proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent or credible evidence.
Findings Of Fact Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor, is the owner and licensee of a licensed Adult Congregate Living Facility (ACLF) located at 1914-21st Street, Vero Beach, Florida. It has been so licensed since 1974 and houses twenty residents. In 1984 Elsie Miller remodeled its facility by enclosing a screened porch to make a dining room and adding a new screened porch outside of the dining room. A building permit was obtained from the City of Vero Beach. Pursuant to that building permit, the City of Vero Beach approved the plans and inspected the construction to determine whether the project was in compliance with the building codes of the City of Vero Beach. The window in Bedroom #3 previously opened onto the screened porch. After remodeling it opens into the dining room a few feet from the new screened porch. ACLF facilities must have their licenses renewed yearly. Elsie Miller's license was renewed in October, 1984, after the remodeling was completed. On December 12, 1984, Jim Valinoti, a Fire Protection Specialist for HRS, conducted an annual licensure survey. He cited Elsie Miller for a deficiency for the window in Bedroom #3 because it did not open "to the outside for ventilation and light." This allegedly violated Section 2001.1 of the applicable building code. Mr. Valinoti's interpretation of Section 2001.1 as it refers to windows opening to an approved open space is that the window must open into a space open to the outside. Bedroom #3 has two exit routes in addition to the window, but has only the one window which opens onto the dining room. In order to move the window to open to the outside, Elsie Miller would have to move two patients, tear out walls and reshape two bedrooms. There is adequate light and ventilation with the current placement of the window. The dining room is connected to the screened porch by an entire wall of glass and sliding glass doors. The window is approximately three feet from the plate glass window and light and ventilation are adequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order determining that Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor is not deficient and is not in violation of Section 2001.1(b) of the Southern Building Code as it relates to the window in Bedroom #3. DONE and ENTERED this 12th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1985. COPIES FURNISHED: K. C. Collette District IX Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401 Charles E. Garris 2205 14th Street Vero Beach, Florida 32960 Leslie Mendelson, Agency Clerk Assistant General Counsel- Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 David Pingree, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of professional engineering in Florida. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909. Plaza 1300 In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error. The roof was redesigned by the Respondent prior to the roof construction. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements. Schooner Cove In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc." The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering. Mitigating Circumstances The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site. Aggravating Circumstances Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.
Recommendation In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended: The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint. Respondent be fined $1,000.00 for each violation for a total of $2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4. Accepted. Accepted. See HO #6 and #9. Accepted. See HO #9. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3, #4, #7 and #8. Rejected. Contrary to fact. See HO #3. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution. Accepted. Rejected. Contrary to fact. See HO #9. Accepted. Accepted. Rejected. Speculative Accepted. Accepted. See HO #14 and #15. Accepted. Rejected. See HO #3. Rejected. Overbroad. Addressed individually in findings. Accepted. See HO #13. Accepted. See HO #13. Rejected. Contrary to fact. See HO #13. Accepted. See HO #14. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. See HO #18. Accepted. Accepted. Accepted. See HO #19. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Accepted. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #12. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Contrary to fact. See HO #3. Rejected. Irrelevant. Accepted. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21. Accepted. See HO #12. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. See HO #23. Accepted. Accepted. Rejected. Not an allegation in the complaint. Rejected. Not an allegation in the complaint. Rejected. Contrary to fact. See HO #3, #7 and #10. Accepted. Rejected. Conclusionary. See HO #3. Rejected. Irrelevant to charges. Accepted. Accepted. See HO #11. Rejected. Contrary to facts of this case. See HO #3, #7 and #10. Rejected. Contrary to this particular situation when drawing sealed. See HO #3. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #22. Accepted. Accepted. See HO #22. Accepted. See HO #23. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #25. Accepted. See HO #25. Rejected. Irrelevant. See HO #3. Accepted. 121. Accepted. See HO #25. 122. Rejected. Contrary to fact. 123. Accepted. See HO #15, #17, #18, #21, #22, #23 and #25. 124. Accepted. See response to paragraph 123. 125. Accepted. See response to paragraph 123. 126. Accepted. 127. Accepted. 128. Accepted. See HO #10. 129. Accepted. 130. Rejected. Contrary to fact. See HO #27. 131. Accepted. 132. Rejected. Contrary to fact. See HO #27. 133. Accepted. 134. Accepted. 135. Accepted. 136. Accepted. 137. Rejected. Contrary to fact. See HO #27. 138. Accepted. 139. Rejected. Contrary to fact. See HO #27. 140. Rejected. Contrary to fact. See HO #27. 141. Rejected. Contrary to fact. See HO #27. 142. Accepted. 143. Accepted. 144. Rejected. Contrary to fact. See HO #27. 145. Rejected. Contrary to fact. See HO #27. 146. Accepted. 147. Accepted. 148. Rejected. Contrary to fact. See HO #29. 149. Rejected. Contrary to fact. See HO #29. 150. Rejected. Contrary to fact. See HO #29. 151. Rejected. Contrary to fact. See HO #29. 152. Rejected. Contrary to fact. See HO #29. 152(a). Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. 154(b). Accepted. 155. Rejected. Contrary to fact. See HO #29. 156. Accepted. See HO #30. 157. Accepted. See HO #30. 158. Accepted. 159. Accepted. 160. Accepted. 161. Accepted. See HO #30. 162. Accepted. 163. Rejected. Contrary to fact. See HO #31. 164. Rejected. Contrary to fact. See HO #31. 165. Accepted. 166. Accepted. See HO #32. 167. Accepted. 168. Rejected. Contrary to fact. See HO #31. 169. Accepted. 170. Accepted. 171. Accepted, but See HO #33. 172. Accepted. 173. Accepted. 174. Accepted. See HO #33. 175. Accepted. Accepted. Accepted, but see HO #34. Accepted. See HO #35. Accepted. Accepted. See HO #35. Accepted. Rejected. Not proved by clear and convincing evidence. See HO #36. Rejected. Not established fact. See HO #36. 184. Rejected. Contrary to fact. See HO #38. 185. Rejected. Contrary to fact. See HO #38. 186. Rejected. Contrary to fact. See HO #38. 187. Accepted. 188. Rejected. Irrelevant. 189. Rejected. Speculative. 190. Rejected. Contrary to fact. See HO #38. 191. Accepted. 192. Accepted. 193. Rejected. Contrary to fact. See HO #38. 194. Rejected. Contrary to fact. See HO #38. 195. Rejected. Contrary to fact. See HO #38. 196. Rejected. Contrary to fact. See HO #38. 197. Rejected. Contrary to fact. See HO #38. 198. Accepted. 199. Rejected. Contrary to fact. See HO #38. 200. Rejected. Contrary to fact. See HO #38. 201. Rejected. Contrary to fact. See HO #3. 202. Rejected. Contrary to fact. See HO #29. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #38. Rejected. Contrary to fact. See HO #38. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #29. 208. Rejected. See HO #3 and #12. 209. Rejected. See HO #3 and #12. 210. Accepted. 211. Accepted. 212. Rejected. Contrary to fact. See HO #38. 213. Rejected. Contrary to fact. See HO #38. 214. Accepted. See HO #39. 215. Rejected. Contrary to fact. See HO #10. 216. Accepted. 217. Accepted. See HO #9. 218. Accepted. See HO #9. 219. Accepted. 220. Accepted. 221. Rejected. Irrelevant. 222. Rejected. Irrelevant. 223. Rejected. Irrelevant. 224. Accepted. See HO #11 and #12. 225. Accepted. 226. Accepted. 227. Accepted. See HO #41. 228. Accepted. See HO #41. 229. Accepted. See HO #40. 230. Accepted. 231. Accepted. See HO #40. 232. Accepted. Accepted. See HO #41. Accepted. See HO #41. Accepted. Accepted. Accepted. See HO #43. Accepted to critical storm 10-year event standard. Rejected beyond 10-year critical year standard. Accepted. See HO #42. Accepted. See HO #44. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Rejected. Irrelevant. See HO #42. Accepted. Accepted. See HO #43. Accepted. See HO #43. Accepted. See HO #44 and #45. Accepted. See HO #45. Rejected. Contrary to fact. See HO #42. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #8 and #9. Accepted. See HO #9. Rejected. Contrary to fact. See HO #4. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #10. Accepted. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9. Accepted. Rejected. Contrary to fact. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence. Rejected. Improper summary. Rejected. Improper summary. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #14 and #15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected. Rejected. Improper summary. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Attorney comments, not evidence. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact. Accepted. See HO #27 - #39. Accepted. See HO #27. Accepted. See HO #35. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #28. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to fact. See HO #15. Accepted, as his testimony only. Rejected as finding of fact. Improper summary. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted, but not as to Respondent Wunder's design. Accepted. See HO #27 - #39. Accepted. See Preliminary Statement. Accepted. See HO #11 and #12. Accepted. Accepted. Rejected. Attorney's comments, not evidence. Rejected. Contrary to fact. See HO #43 - #45. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #40. Accepted. Accepted. Accepted. Accepted. See HO #40 and #43 - #45. Accepted. Accepted. Rejected. Contrary to fact. See HO #43 - #45. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #45. Accepted. Accepted. Rejected. Contrary to fact. 117. Rejected. Speculative. Improper summary. 118. Rejected. Irrelevant. 119. Rejected. Irrelevant. 120. Accepted. 221. Accepted. 222. Rejected. Irrelevant. 223. Rejected. Contrary to fact. See HO #45. 224. Accepted. 225. Accepted. 226. Accepted. 227. Accepted. 228. Accepted. 229. Accepted. Rejected. Weight and sufficiency determination. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #40. Accepted. COPIES FURNISHED: Wings S. Benton, Esquire Post Office Box 5676 Tallahassee, Florida 32314-5676 Diane E. McGill, Esquire TURK & SHIPP, P.A. 4223 Del Prado Boulevard Cape Coral, Florida 33904 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
Findings Of Fact The Respondent is a registered roofing contractor, having been issued license number RC 0034898. He operates a business known as B & P Roofing at 244 Tollgate Trail, Longwood, Florida. The Respondent has appropriately qualified the business name of "B & P Roofing" with the Petitioner. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, with regard to licensure of building contractors, the regulation of their licensure status and methods of operation and practice. During June of 1981, the Respondent, doing business as B & P Roofing, contracted to perform a re-roofing job with Mr. Jack Mewhirter, whereby he was to put a new roof on a residence at 137 Variety Tree Circle, Altamonte Springs, Florida. The construction of the roof was contracted for and completed during June, 1981. The Respondent failed to obtain a building permit before or during construction of the roof and also failed to obtain a final inspection of the roof when it was finished in June, 1981. The Respondent's testimony establishes that the Respondent was familiar with the building code adopted in Seminole County and familiar with the requirement that he was responsible as the contractor, to obtain a permit before commencing construction of the roof and that he was also responsible for obtaining a final inspection by the Seminole County Building Official. In response to a complaint from Mr. Mewhirter, the owner of the residence, the Seminole County Building Officials, Mr. Flippent and Mr. Del'Attibeaudierer became aware that no building permit had been obtained for the re-roofing job and that no final inspection had been obtained pursuant thereto. Accordingly, Mr. Del'Attibeaudierer inspected the roof in November, 1981, and Mr. Flippent informed the Respondent of the necessity to obtain a building permit and a final inspection. Thus, on November 10, 1981, the Respondent obtained the building permit and called for the final inspection. Mr. Del'Attibeaudierer was unable to sign the final inspection document as "satisfactory" because he was unable to adequately inspect the roof once it was finished. He had been unable to inspect the method by which it was installed during its construction due to the Respondent failing to inform him or his superiors that the roof was under construction and that inspections were needed at that time. hen the Respondent entered into the contract with Mr. Mewhirter, he informed Mr. Mewhirter that he would not obtain a building permit because that would "drive the cost up." The Respondent, in his testimony, denied that he made such a statement, but Mr. Mewhirter's testimony is here found more credible because of the facts established by Mr. Del'Attibeaudierer's testimony that a random check of the roof after he finally was able to inspect it in November, 1981, revealed that all the shingles he examined were nailed with only three nails and were nailed too high up near the upper edge of the shingle, which is a substandard method of installing the roof and which permits storm winds or rain to raise the shingles, causing possible damage to the roof. The fact that the roof was installed in this fashion and that fact that the Respondent admittedly knew of the requirements of the building code and the requirement that a permit be obtained and inspections be made during the course of and at the conclusion of the job, indicated that the Respondent was knowingly trying to avoid the necessity of obtaining a permit and a final inspection and thus lends sufficient credibility to Mr. Mewhirter's testimony regarding the reason the Respondent obtained no permit. In any event, the roof was shown to not be constructed in accordance with the building code. In summary, it was established that the Respondent knew of the appropriate building code, was thoroughly familiar with it and and indeed had installed an excess of seven hundred roofs since he entered the business. He was aware, in connection with the need for obtaining a building permit, that he should also obtain inspections during the construction and a final inspection when the roof was finished, which he failed to do until reminded of his violation by the building department five months after the roof was completed, at which time it was too late to perform the appropriate inspections. Thus, the roof could not be approved by the building department of Seminole County. The Respondent admitted to only being present on the subject job site for approximately an hour and a half during the entire construction of the roof and he admittedly did not bother to look to see if a permit was on the job site at that time, or any other time. Finally, although the Respondent remonstrated that his failure to get a building permit at the appropriate time was inadvertent and due to his assumption that other office personnel had taken care of the obtaining of the permit, that testimony is not found to be credible since it was established, through the testimony of Mr.. Mewhirter, that the Respondent consciously decided not to obtain a permit prior to starting construction of the roof.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Respondent, George G. Vincent, be found guilty of the charges contained in Counts I and II of the Administrative Complaint and that an administrative fine of $1,000 be imposed. DONE and ENTERED this 23rd day of February, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Gary Siegel, Esquire 292 U.S. Highway 17-92 P.O. Drawer 965 Fern Park, Florida 32730 James A. Linnan, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, v. DPR Case No. 0017669 DOAH Case No. 82-1341 GEORGE C. VINCENT B & P Roofing RC 0034898 244 Tollgate Trail Longwood, Florida 32750, Respondent. /
The Issue The issue is whether Leon County Project ID No. LSP160001, conditionally approved on February 5, 2016, is consistent with the Leon County Land Development Code (Code) and the Tallahassee-Leon County 2030 Comprehensive Plan (Plan).
Findings Of Fact The Parties Floresta is a limited liability corporation that proposes to develop property located at 5044 Blountstown Highway (State Road 20), approximately one-half mile west of the intersection of Capital Circle Northwest and State Road 20. The Association is comprised of residents of the Wolf Creek Subdivision (Subdivision), and numbers around 200 residential town homes on State Road 20 just west of the proposed development. The parties agree that a substantial number of members of the Association would otherwise have standing to bring this action in their own right. J.P. Lepez lives in the Subdivision directly adjacent to, and west of, the development proposed by Floresta. Michael and Elizabeth Urban reside in Deer Tree Hills Condominium Community adjacent to, and west of, the Subdivision, and in close proximity to the proposed development. Carol Smith resides just south of Deer Tree Hills Condominium Community on the opposite side of Blountstown Highway, and in close proximity to the proposed development. The Approval Process On January 12, 2016, the County received a site and development plan application filed by Floresta regarding a proposed project called the Residential Condominiums on Blountstown Highway, a principal arterial roadway. The application consisted of an application; a permitted use verification; an applicant's affidavit of ownership and designation of agent; a school impact analysis form; an application for concurrency determination; a natural features inventory approval; a site plan narrative; a site and development plan; a concept utility plan; a concept water and sewer plan; and fire flow calculations. The applicant also submitted an environmental impact analysis application, consisting of the application, an environmental impact analysis narrative, a proposed conservation easement, a conservation easement management and maintenance plan, a stormwater analysis, and an environmental impact analysis plan. See Ex. 3a.-g., 4, 8a.-e., 9, 13, 14, and 16. The project is Phase I of a multi-phase development. Floresta proposes to develop around 4.09 acres of the total 33.52-acre parcel. As explained in more detail in the site plan narrative prepared by Floresta's consultant on January 13, 2016: The residential condominium project is limited to the front +/- 4 acres along Blountstown Highway and will include the entry drive with guest parking, a stormwater pond and 24 residential units. Each unit is a small footprint unit for low- income residents. It is anticipated that not all residents will rely upon a vehicle for transportation and therefore not all units will have driveways. Units will range in size, but will be less than 500 gsf [gross square feet], single story dwellings. The units will be placed within the identified area and located among the existing trees of the property to retain a wooded development. Future phases of construction may include community buildings and additional units based on market conditions. Ex. 3g. Because of the small size of the units -- gross square footage represents the overall footprint of the building -- they were referred to at times by members of the public as "tiny homes." Petitioners' PRO alleges that information obtained at a public meeting conducted by the County on January 27, 2016, revealed that the project will in all likelihood function as a homeless shelter. While no County or Floresta representative testified to confirm or deny this fact, testimony by public commenters suggest this may be true, and their testimony was not challenged by Respondents at hearing. The project is located on a parcel zoned R-3, Single- and Two-Family Residential. It is designated Urban Residential 2 on the Future Land Use Map of the Plan. The R-3 zoning and Urban Residential 2 Future Land Use category allow for a wide range of single-family dwelling units, including single-family detached dwellings, single-family attached dwellings, two-family dwellings, and zero-lot line single-family detached dwellings. See § 10-6.637, L.D.C.; Land Use Element Policy 2.2.24(L). The project consists of small condominium units as single-family detached dwellings. These are a permitted use in the R-3 zoning district and in the Urban Residential 2 Future Land Use category. Because the project is located on a parcel zoned R-3 and consists of 24 units, it qualifies for a Type "A" review under section 10-7.402 of the Code. Under Type A review, an applicant can select from two development review tracks. See § 10-7.402(5), L.D.C. The project was reviewed under the concept plan approval track. This review track option is intended to expedite the review process by reducing the requirement for permitting-level information while providing assurance that the development entitlements reflected on the concept plan can be realized on the subject site. See § 10-7.402(5)(a), L.D.C. An applicant is still required to complete the environmental permitting process for the project prior to construction. A point of entry is available to third parties to challenge any state, but not County, environmental permit required for the project. Under Type A review, an Application Review Committee (Committee), composed of City and County technical staff, reviews the site and development plan application for compliance with the applicable regulations. See § 10-7.403(e), L.D.C. The Committee then renders a recommendation to the County Administrator or designee recommending approval, approval with conditions, or denial of the application. Id. The County Administrator or designee renders a Written Preliminary Decision. Id. That decision becomes final unless an appeal is timely filed. See § 10-7.403(h), L.D.C. For this project, the County's Administrator's designee is the Director of the Department. On January 27, 2016, the County held a noticed Application Review Meeting, whereby the Committee convened to review the application for the project and receive public comment. Pursuant to section 10-7.403(g), notice of the public hearing was mailed at least seven calendar days prior to the meeting to all property owners within 600 feet of the proposed project. The notice euphemistically described the project as a 24-unit "Residential Condominium Project." Although Petitioners assert the notice was misleading, they attended the January 27 meeting, and they were given an opportunity to present witnesses, introduce evidence, and to otherwise participate in the instant case. No evidence of prejudice was shown. At the meeting, the Committee presented a staff report, which included memoranda from the Tallahassee-Leon County Planning Department, Leon County Environmental Services Department, City of Tallahassee Utilities Department, City of Tallahassee Fire Department, and Leon County Public Works Department. See Ex. 7. The staff report and each memorandum included comments regarding deficiencies in the application that the applicant must address in order for the project to be consistent with the Code and Plan. County and City staff determined, however, that the deficiencies were "minor" in nature and agreed to recommend approval of the site and development plan with the condition that the applicant must correct the deficiencies identified in the staff report. See § 10-7.403(f), L.D.C., which allows approval of a Type A application, with conditions. Because they considered the deficiencies to be minor, the staff took the position they did not require a substantial, or even moderate, alteration in the layout or geometry of the site plan. Some of the deficiencies are related to notes that are required to be added to the site plan simply for clarification purposes. On February 2, 2016, the County, through a Department Planner II, issued a Notice of Application Deficiency Letter (Notice). See Ex. 2. The Notice outlined many of the conditions raised in the staff report. The Notice did not impose any additional conditions. On February 5, 2016, the Director of the Department issued a Written Preliminary Decision, approving the project subject to the conditions outlined in the staff report presented at the meeting on January 27, 2016. See Ex. 1. The approval required the applicant to submit a revised site and development plan demonstrating compliance with all conditions within 90 days, or by May 6, 2016. It further cautioned that unless a timely extension was requested by the applicant, a failure to comply with that requirement by the May 6 deadline would render the approval expired. The revised site and development plan was not made a part of the record, and the staff's final compliance determination was not disclosed at hearing. Under the County's approval process, an administrative challenge to the staff's final determination is not available to third parties. On February 17, 2016, Petitioners timely filed a Notice of Intent to File a Petition for Formal Proceedings Before a Hearing Officer. See Ex. 17. On March 7, 2016, Petitioners timely filed their Petition for Formal Proceeding (Petition). Except for one ground voluntarily dismissed at hearing, the Petition alleged that the application was inconsistent with the Code and Plan for the same reasons cited in the staff report dated January 27, 2016, and reiterated in the Notice issued on February 2, 2016. Petitioners' Objections Petitioners' PRO asserts generally that any one of the conditions noted by the staff constitutes grounds for denial of the application. However, based upon the exhibits and testimony of members of the public, in their PRO, they focus on only four items regarding the project. Setbacks Petitioners first allege that the project is inconsistent with development standards for the R-3 zoning district. See § 10-6.637, L.D.C. Development standards for single-family detached dwellings in zoning district R-3 are found in the site data table of section 10-6.637 and require a minimum lot or site size of 5,000 square feet (or 0.11 acres); minimum lot widths of 50 feet; minimum lot depths of 100 feet; minimum front setbacks of 20 feet; minimum side-interior lot setbacks of 7.5 feet on each side; or any combination of setbacks that equals at least 15 feet, provided that no setback shall be less than five feet; minimum side-corner lot setbacks of 15 feet; minimum rear lot setbacks of 25 feet; and no building exceeding three stories in height. In assessing whether the applicant complied with these standards, the staff made the following comments on the project's compliance with setbacks and building height and size requirements: Finding #4: The project appears to meet the applicable building setbacks, height and size requirements; however, please annotate the height of the building (in feet) in the site data table alongside the minimal requirements. Please clarify that the setbacks provided in the site data table are the perimeter setbacks for the development. The applicant will need to also provide the proposed setback between structures to ensure compliance with the Florida Building Code requirements. Ex. 7, p. 000004. This comment became a condition of approval in the Department's Notice to ensure that Floresta was meeting those requirements. As a condition, Floresta was required, no later than May 6, 2016, to "clarify" that the setbacks in the site data table are the perimeter setbacks for the development and provide the proposed setback for each structure. Also, the County relies on note 14 of Sheet 6.0 of the plan, which indicates a front setback of 20 feet, a side interior setback of 15 feet, and a rear setback of 25 feet. See Ex. 4. These distances satisfy the Code requirements. Because the units are one-story in height, they do not exceed the three-story limitation. As an added condition, the County required Floresta to provide the setbacks between each structure. Petitioners contend that the County failed to fully apply the R-3 zoning district's building standards for single- family detached dwellings found in section 10-6.637. Specifically, they assert that the 24 units are listed on the site plan as having a total area of approximately 39,000 square feet, or 1,625 square feet per dwelling. They also contend that the lot geometry is not shown and therefore the site and development plan is not consistent with the minimum lot widths, depths, and setbacks required by the Code. Even if lot geometry were shown, they contend that the 39,000 square feet allotted is insufficient to provide for lots for 24 single-family detached dwellings that meet the minimum required lot width of 50 feet and lot depth of 100 feet. The project involves a condominium development with the creation of individual units on a single lot. See Ex. 3g., p. 4. Therefore, the County asserts that the minimum lot sizes found in section 10-6.637 are inapplicable. This is a reasonable interpretation of the Code. Also, due to a typographical error in the staff report, it initially appeared that rear setbacks were not provided. However, the rear setbacks are actually shown on Note 14 of Sheet 6.0 of the site plan. See Ex. 4. Subject to the above conditions, the project is consistent with the requirements of the Code. Parking Requirements Petitioners also contend that the project fails to comply with parking requirements, as the project will have 24 units, but only 18 regular parking spaces and two handicapped parking spaces are proposed. Section 10-7.545 requires that developments in the R-3 zoning district have between 85 percent and 100 percent of the parking standard in schedule 6-2 of the section. Because the schedule requires that conventional detached homes have 1.5 parking spaces per unit, Petitioners assert that 30.6 parking spaces are required. The applicant does not anticipate that all residents will have automobiles. Because the project will serve low- income residents, this is a logical assumption. The applicant also proposes grass parking to be located closer to each unit. Section 10-7.545(a) allows a deviation from the range of required parking established in Schedule 6-2 upon approval or an approval with conditions from the Parking Standards Committee (Committee). See Ex. 1, p. 000007. That Committee is comprised of the Planning Director, the Department Director, and the Public Works Director, or their designees. As a condition, the applicant will be required to secure approval from the Committee before final approval for the project is given. Id. Subject to Floresta's compliance with this condition, which cannot be administratively challenged by Petitioners, the site plan is consistent with the Code. Transportation Infrastructure Petitioners contend that there is a lack of adequate transportation infrastructure in the area. They also point out that there are no sidewalks on State Road 20, and there is no bus stop adjacent to the project. Therefore, residents or guests in the project will have to walk east along State Road 20 in order to find a bus stop. As a condition of approval, the County required the applicant to extend a stub out from the parking lot to the property line for future interconnection. See Ex. 1, p. 0000010. Mobility Element 1.4.1 requires vehicular, pedestrian, and bicycle interconnection between adjacent, compatible development. The applicant's site plan includes sidewalks within and connecting to the facilities along State Road 20. See Ex. 4; Ex. 1, p. 0000010. Also, a Preliminary Certificate of Concurrency was issued for the project, and a final certificate will be issued upon final site plan approval. See Ex. 1, p. 000005. Subject to compliance with these conditions, the site plan is consistent with the Code. Compatibility For obvious reasons, Petitioners' greatest concern is the intrusion of former homeless persons into the units immediately adjacent to their properties. (By definition, once a person resides in a home, he/she is no longer homeless.) On this issue, they assert that the project is inconsistent with section 10-7.505, which requires that each development shall be designed to be as compatible as practical with nearby development. Petitioners argue that the tiny house community being proposed is not compatible with the "typical" single- family homes found around the project site. The parcel on the west side of the project is also zoned R-3. The parcels on the east side of the project are zoned OA-1 (Airport Vicinity District) and CP (Commercial Parkway District). The OA-1 district does not permit residential uses due to the noise levels from aircraft exceeding the thresholds identified by the Federal Aviation Administration and the State as being compatible with certain land use types. See § 10-6.645, L.D.C. The CP district permits general commercial and community facilities. See § 10-6.649, L.D.C. The project proposes a Type "D" 50-foot buffer on both the eastern and western borders of the property. A Type "D" buffer is the most restrictive buffer provided in the Code. See § 10-7.522, L.D.C. Respondents agree that the project is "small footprint housing for low-income residents." However, there is no prohibition in the Code that restricts low-income housing from occurring in any residential zoning district. Also, the Plan and Code do not regulate the size of dwelling units, outside of minimum housing standards found in the Florida Building Code. While Petitioners' objections are genuine and well-intentioned, there is nothing in the existing Code or Plan that prevents the introduction of extremely small low-income housing units into a residential district, assuming all other requirements are met. The project is compatible with the surrounding area. Public Comments Six members of the public presented comments at the hearing. The public commenters either live in or own typical single-family homes adjacent to or near the project, or operate a commercial business near the project. The undersigned has rejected the County's assertion in its PRO that the comments should be disregarded because a transcript was not prepared. One commenter, who owns a business on State Road 20 less than a quarter mile from the project, is concerned that State Road 20 is inadequate to handle more traffic. He also is concerned with the tiny house development feature of the project and noted that one-half of the project is located within the flood zone. Another commenter who resides in the Subdivision with her disabled daughter expressed concern that low-income housing units occupied by homeless persons sent from the Kearney Center, a nearby homeless shelter, will result in a substantial loss in value to her property and increase safety issues for her daughter who remains home alone during the day while she is at work. Like other commenters, she complained that State Road 20 is already overburdened with traffic without adding another development to the area. A third commenter is also concerned with the level of traffic on State Road 20. During morning rush hours, he cannot turn left onto State Road 20 to go into town and fears the project will cause a further deterioration of traffic conditions. A fourth commenter, who lives in another county, has owned a condominium in the Subdivision since 2007, first used by her daughter while going to college, and now rented. She complained that the notice of the public meeting was misleading as it indicated a condominium project would be built on the parcel, and not tiny homes for former homeless persons. She is concerned that the current level of traffic on State Road 20 will be exacerbated, and that the value of her condominium will be negatively impacted. A fifth commenter who resides in the Subdivision complained that the notice of the public meeting was misleading and vague, and led her to believe that a traditional or multi- story condominium project would be constructed on the parcel, rather than a cluster of tiny homes. She also expressed concerns that a large, low-income population in the neighborhood will raise safety issues for existing residents. The final commenter resides near the project and owns a bail bond business on West Pensacola Street, a mile or so east of the project site and near the Kearney Center. Based upon her experience operating a bail bond business near the Kearney Center, she testified that the number of arrests in that area of town has "skyrocketed" since the shelter opened. She added that there has been an adverse impact on businesses located near the Kearney Center because its residents simply hang out in the area during the day. She fears that an influx of former homeless persons into the tiny homes will lead to a similar increase in the crime rate around the project site. The commenter also serves as a part-time volunteer at the Kearney Center several days a week and noted that no background checks, identification checks, or drug checks are performed on persons entering the shelter. She is concerned that no checks will be performed on the persons who will occupy the tiny homes. She added that many of the shelter residents are drug addicts and do not want to work. If they move into the tiny homes, she believes they will simply hang around the project site and create safety issues for residents in the neighboring properties. She intends to sell her home if the project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the project, subject to confirming that the applicant's revised site plan satisfies all conditions imposed by the County on February 5, 2016. DONE AND ENTERED this 25th day of May, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2016. COPIES FURNISHED: Herbert W.A. Thiele, County Attorney Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 Vincent S. Long, County Administrator Board of County Commissioners 301 South Monroe Street Tallahassee, Florida 32301-1861 Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Patrick T. Kinni, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Jessica M. Icerman, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Claude Ridley Walker, Esquire 2073 Summit Lake Drive, Suite 155 Tallahassee, Florida 32317-7949 (eServed) Shanon Ofuiani 2022 Nena Hills Drive Tallahassee, Florida 32304-3788 Joe Smith 1700 Smitty's Way Tallahassee, Florida 32304-9023 Yolanda Robies 1897 Nena Hills Drive Tallahassee, Florida 32304-3785 Jack Neece 4792 Blountstown Highway Tallahassee, Florida 32304-9005 Dori Cordle 34 Cordle Road DeFuniak Springs, Florida 32433-5845 Teresa Ramsook Post Office Box 5352 Tallahassee, Florida 32314-5352
