The Issue Whether the Respondent's license as a registered general contractor should be disciplined?
Findings Of Fact The Respondent is a registered general contractor in the State of Florida. His license is number RG 0001015. At all times material to this case, the Respondent has held license number RG 0001015. The Respondent has been in the construction business for 51 to 52 years. During the Fall of 1985, Mr. Edward J. Ashley discussed a construction project at Mr. and Mrs. Ashley's residence with the Respondent. The Ashley's residence is located at 2353 Hampshire Way, Tallahassee, Florida. The Ashleys and the Respondent, on behalf of Big Bend Builders Corp., Inc., agreed on the construction work to be performed and the price to be paid for the work. The agreement was memorialized on October 7, 1985, (hereinafter referred to as the "Proposal"), by the Respondent and presented to the Ashleys. Pursuant to the agreement between the Ashleys and the Respondent, Big Bend Builders Corp., Inc., was to construct a room addition to be used as a porch in the back of the existing residence, extend a master bedroom and bathroom, replace the tile in the bathroom, remove a partition between the kitchen and the living room and replace the existing roof with fiberglass shingles with a 20-year warranty. The Ashleys agreed to pay the Respondent's corporation $28,300.00 in consideration of the work to be performed. The Proposal presented to the Ashleys by the Respondent was never signed by the Ashleys but they did agree verbally to the work to be performed. The Ashleys and the Respondent agreed verbally that the construction price would be paid in two installments. One installment was to be made when half the construction was completed and the other half was to be paid when the construction was completed. The Ashleys made the first payment on December 5, 1985. The payment was for $14,000.00. Although the project was not completed, the Ashley's made a partial payment of $6,000.00 on January 10, 1986. The second payment was made earlier than agreed upon at the request of the Respondent. The Respondent told the Ashleys that the payment was needed so that the project, which was already late, could be completed. The Ashleys and the Respondent agreed verbally that the construction would be completed by December 15, 1985. Construction began at the Ashleys on November 14, 1985. On November 22, 1985, the concrete slab for the addition to the Ashley's home was poured in the morning. That afternoon a hurricane struck and rain associated with the hurricane washed away the top layer of concrete. The loss of the top layer of concrete caused the slab to be rough and uneven. It was especially unsightly in the area where the new room was being added as a porch. The Ashleys planned to leave this area uncovered. When they complained to the Respondent he told them not to worry, that he would take care of it. It was not repaired, however. The slab was also uneven in the bathroom and approximately 1 and 1/2 inches higher than the existing slab in the master bedroom. These problems were also not corrected. The area where the new slab joined the existing slab in the master bedroom was ground down but a bump still remains. The trusses of the addition to the residence were higher than the existing trusses. Although some of the problems associated with this problem were corrected, there remains a bump on the roof of the addition. The wall between the bathroom and the master bedroom did not match the existing wall. This problem was not corrected and is still visible. The Respondent filed an application for a building permit with the City of Tallahassee on November 12, 1985. The permit was issued on November 13, 1985. The Respondent was required to arrange slab, framing, and insulation inspections and a final inspection of the construction at the Ashley's residence. The Respondent had the slab inspection completed on November 19, 1985. The framing inspection was conducted on December 11, 1985, by Mr. Rackley. The construction did not pass this inspection because there was no "header" over one door and the ceiling joists were not adequately attached. It was the Respondent's responsibility to correct the problems found as a result of the framing inspection before proceeding with construction. The fact that the construction failed the framing inspection was noted on the copy of the building permit which is displayed at the construction site. Ms. Ashley was the only person present during the inspection other than the inspector. On December 17, 1985, Mr. Rackley saw the Respondent at a party and mentioned the door header and the failure of the residence to pass the framing inspection. The ceiling joists were not mentioned. At the time the framing inspection was completed, the construction was 40 to 50 percent complete. By letter dated February 12, 1986, Mr. Rackley asked the Respondent why the Respondent had not requested a re-inspection. The Respondent proceeded with construction without passing a framing inspection. Therefore, in the February 12, 1986 letter from Mr. Rackley the Respondent was directed to uncover the areas which had failed the inspection so that they could be re-inspected. The Respondent did not respond to Mr. Rackley's letter of February 12, 1986. Therefore, on February 24, 1986, the Respondent was contacted by Mr. Rackley by telephone. The Respondent agreed to open the areas necessary to complete the framing inspection. On February 26, 1986, the framing inspection was completed. An opening had to be cut in the existing roof for the inspection to be completed. The Respondent did not fail to arrange a re-inspection of the property in order to hide anything or cover-up improper work. The construction passed the insulation inspection. No final inspection of the construction has ever been requested or completed. As a part of the Respondent's agreement with the Ashleys, the Respondent was to remove the roof on the existing structure and cover it and the new roof with fiberglass shingles with a 20-year life. The shingles used by the Respondent were Temko shingles. Manufacturers of roofing materials generally recommend how to apply their products in writing. Therefore, Temko included instructions for the application of the shingles used by the Respondent. The instructions were written on the paper used to wrap the bundles of shingles. In order for the manufacturer's guarantee of the Temko shingles to be effective, the shingles must be installed according to the manufacturer's instructions. The Southern Building Code, which applies in Leon County, also requires that manufacturer's instructions be complied with. The following pertinent instruction, among others, was included with the shingles used on the Ashley's residence: LOW SLOPE APPLICATION: On pitches of 2" per foot to 4" per foot, provide a double underlayment of asphalt saturated felt by applying a 19" wide felt strip along the eaves and over this apply a full 36" wide sheet. Continue with full 36" wide sheets, lapping each 19" over the preceding course. If winter temperatures average 25 F or less, thoroughly cement the felt to each other with Temko plastic cement from eaves and rakes to a point a [sic] least 24" inside the inside wall line of the building. This instruction is consistent with roofing industry standards. The roof of the Ashley's residence pitches at 2" to 2 1/2" per foot. Therefore, the Respondent should have applied two layers of felt to the roof as specified in the "Low Slope Application" instruction. The Respondent's crew, however, only applied one layer of felt to the Ashley's roof. The instructions for the shingles also specified that each shingle be attached with four nails placed in a particular pattern. The Respondent's crew did not follow these instructions. Along the edges of the roof, the felt should have been cemented to the roof. It was not, however. Shingles placed in the valleys on the roof were not attached in any manner to the roof. The manner in which the roof was installed was incompetent. After the roof was placed on the Ashley's residence, water leaked in at several locations. The Respondent did not return the Ashley's telephone call. One of the Respondent's work crew when informed about the leaks told Mr. Ashley that the roof was not leaking; that it was blowing in from outside. Some of the problems with the roof were corrected by the Respondent. They were corrected, however, only after a building inspector was called in by the Ashleys. Even then, the leaks did not stop. The Ashleys subsequently paid another contractor $560.00 to correct problems with the roof. Throughout the period of time that the Respondent's crew worked at the Ashley's residence, whenever a problem arose, the Ashleys would be told not to worry about the problem; that it would be taken care of. Many of the problems, however, were not taken care of by the Respondent. Throughout the period of time that work was being performed at the Ashley's residence, there were numerous times when no one would perform any work at the Ashley's. Weeks would often go by without the Ashley's seeing the Respondent and without the Respondent's presence at the Ashley's. During the period that work was being performed at the Ashley's residence, there was a great deal of rain and the temperature dropped below 40 degrees. These weather conditions slowed progress on completing the job. These weather condition were not unique, however, and the Respondent admitted that he knew it rains and gets cold often during the period of time involved in this proceeding. One weather problem that the Respondent could not have reasonably foreseen was the hurricane which struck Tallahassee on November 22, 1985. As a result of damage to property caused by the hurricane, roofing and other materials were more difficult to obtain. Rain associated with the hurricane washed away the top layer of the concrete from the slab that was poured the day the hurricane struck. The Respondent checked with the weather service that morning. Based upon the projected weather, the hurricane was headed away from Tallahassee and rain was not expected until that afternoon. The concrete was poured in the morning and would have been dry before the afternoon. The weather forecast was incorrect, however, and the rain struck earlier than expected. After work had commenced on the Ashley's residence, the agreement was modified. The Respondent indicated that he could not do the tile work in the bathroom. Therefore, the agreed upon price for the project was reduced by $2,000.00. The Ashleys also had the Respondent perform other work not originally agreed upon; 2 skylights and a door were added and additional brick work was performed. These changes caused some delay in completion of the project. The evidence did not prove, however, that all of the delay was attributable to the changes in the work to be performed. Much of the delay was caused by the fact that the Respondent's crew simply did not show up to work at the Ashley's residence. The delays in completing construction at the Ashley's residence were on the whole not reasonable. Although days were lost because of weather conditions, including the hurricane, and changes in the work to be performed, the days that no work was performed were not reasonable or caused by these factors. The Respondent failed to properly supervise the work performed at the Ashley's residence. Although the Respondent indicated that he relied upon the men who worked for him, he was ultimately responsible for the proper completion of the project. The project was not completed and some of the work performed was not performed in a satisfactory manner. The Respondent was not allowed to complete the project. The Ashleys eventually got so fed up with the Respondent's failure to correct problems and to complete the project that they would not allow the Respondents onto the property. Sometime after 1981, the Respondent received forms from the Petitioner which could be used to register his contracting license in the name of Big Bend Builders Corp., Inc. He asked his former attorney to complete the forms for him. The forms were completed and placed in the Petitioner's mail. The Respondent's license has not been registered in the name of Big Bend Builders Corp., Inc. The Respondent believed that his license was being switched to the corporate name. He knew or should have known that the change had not been completed because he did not receive a copy of a license with the corporate name. The Respondent's license had previously been held in a corporate name. The heading of the Proposal indicates that it is a proposal of "Big Bend Builders Corp., Inc." The Proposal was signed by the Respondent and was also signed "Big Bend Builders Corp., Inc. by Welton Smith." Mr. Ashley understood that the agreement he was entering into was with Big Bend Builders Corp., Inc. The two payments made by the Ashleys were made by checks. The checks were made out to Big Bend Builders Corp., Inc. The building permit on the Ashley's residence was applied for and issued in the name of Big Bend Builders Corp., Inc. Big Bend Builders Corp., Inc., was not qualified with the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent be found guilty of violating Sections 489.129(1)(d), (g), (j) and (m) and 489.119, Florida Statutes (1985). It is further RECOMMENDED: That the Respondent be required to pay an administrative fine of $2,000.00. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 2. 2 56. 3 4. 4 5. 5-6 6. 7 7. 8 18. 9-10 18 and 61. 11-12 10. 13 39 and 41. 13 The first sentence is hereby accepted. The second sentence is not supported by the weight of the evidence. This state- ment was made to the Ashleys but in regard to the problems they had with their roof. 14 43. 15-16 44. 17 21. 18 21, 23 and 25. The building inspector informed the Respondent of the failed framing inspection on December 17, 1985, and not December 7, 1985. 19 28. 20 26. 21 33 and 34. 22 Hereby accepted. 23 37 and 38. 24-25 Hereby accepted. 26 38. 27 37. 28-29 39. 30 38-39 and 42. 31-35 Cummulative. 36-37 57. Respondent's Proposed Findings of Fact 1 Hereby accepted. 2 2. 3 28 and 29. There was no "final inspection" performed on the project. There was a final framing inspection, however, that indicated that the work that originally failed the inspection had been performed correctly. 4-7 These proposed findings of fact are not supported by the weight of the evidence. 47-48 and 50. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 10-11 Hereby accepted. 12 62. The last sentence is not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750 W. Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elwin Thrasher, Jr., Esquire 908 North Gadsden Street Tallahassee, Florida 32303
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the amended administrative complaint?
Findings Of Fact At all pertinent times, respondent Ronnie L. Barfield was registered as a roofing contractor and held a state contractor's license, No. RC 0039607. At some point, records reflected the license was inactive, but this was in error. In 1987, Jack Williams lived in the house at 3101 Kings Drive in Panama City, Florida. At all pertinent times the house belonged to Evelyn Rhoads, whose daughter Anna was once married to Mr. Williams. "[B]ack in 1987," (T.10) Mr. Williams contracted with respondent Barfield, on behalf of Ms. Rhoads, to re-roof the house. Doing business as Gulf Coast Roofing Co., Mr. Barfield estimated the work would cost $5,000, before seeing the house, but ultimately presented a bill for (and was paid) $13,922.56. Petitioner's Exhibit No. 2. Respondent removed the existing shingles, replaced rotted portions of the decking near the chimney, installed four new skylights, installed a new drip edge or eave drip and put on new felt and fiberglass shingles. Any flashing there may have been around the chimney did not survive removal of the existing shingles. The eave drip, a strip of aluminum, "puckered" over the carport because the trusses were not uniform. At Mr. Williams' request, Mr. Barfield drove three nails through the eave drip into the fascia to flatten the metal out. Exposed to the elements, the heads of these galvanized nails rusted. On August 10, 1987, after Jack had moved out, Anna moved back in. She noticed "a lot of ridges, indentations and waves in the roof." T.16. (But this may have been nothing new. When a concrete slab foundation varies in height, so that the trusses are at different heights, it makes the roof uneven.) Waviness arising even after respondent's work would more likely have been because of poor attic ventilation than any dereliction by respondent. Anna Bartness, as she has been known since July of 1988, also noticed that the shingles capping the peak or ridge of the roof were loose and uneven. When inspected in January, ridge cap shingles were found attached with only a single nail, instead of two -- one on either side -- which is the industry standard. Eventually "the ridge cap came off it was in the yard." T.16. One of the skylights leaked, when it rained. Ms. Bartness sought Mr. Williams' assistance in locating respondent to tell him of the problems. Mr. Williams remembered getting "the telephone number where [respondent] could be reached." T.14. Whether Mr. Williams himself actually telephoned is not clear, but Ms. Bartness tried repeatedly to reach Mr. Barfield by telephone. Although she never succeeded, she left messages on a telephone answering machine and also left word with a secretary in Mr. Barfield's lawyer's office. A certified letter she mailed respondent was returned unclaimed. These efforts to reach Mr. Barfield may have coincided with time he spent in south Florida. Respondent had agreed "LABOR CARRIES A 5 YEAR WARRANTY." Petitioner's Exhibit No. 2. He did not learn of complaints about the work at 3101 Kings Drive until after Ms. Rhoads complained to the Department of Professional Regulation and the present proceedings began. But he had not offered to reimburse Ms. Rhoads or otherwise honor the warranty in any way, as of the time of the hearing. Giving up on Mr. Barfield, Ms. Bartness got estimates from two other roofers, David C. Stallnecker and Mayo= Rudd. Among other things, flanges around plumbing vents that had sustained damage from external sources required replacement, flashing needed to be installed around the chimney, wood there had again rotted, and ridge cap shingles needed removal and proper installation. Mr. Rudd charged her $710 for repairs he told her consisted of putting flashing around the chimney because there was none, reapplying tar or "bull," replacing a defective vent that was leaking into a skylight and, which she could see herself, replacing shingles on the roof ridge. Petitioner's Exhibit No. 5. On or about January 15, 1988, before these repairs, Mr. Stallnecker, like Mr. Rudd, found "no flashing on the chimney." Petitioner's Exhibit No. 5; T. 44. When water began coming down the chimney in 1990, Ms. Bartness contracted with James Rutledge, doing business as Rutledge Roofing, to do additional work. He removed shingles around the chimney, replaced bad wood, installed a "membrane with plastic [r]oof cement for flashing against chimney," Petitioner's Exhibit No. 7, and replaced felt and shingles. Unless an owner instructs him not to, a reasonably prudent roofer would install flashing around a chimney that did not already have it before laying shingles there. T. 45. Testifying at hearing, Mr. Barfield never claimed that he installed flashing around the chimney. Nor did he ever say he saw flashing around the chimney. He said flashing was built in behind the brick. You couldn't see it . . . until you pulled the brick out. T. 70. On balance, however, his testimony suggested that he assumed there was flashing around the chimney, without ever seeing it. [T]he brick masons put the flashing on unless you go where they're building these 235 houses around here they would have nailed it on the side. You hardly wouldn't do that on a $200,000 house sitting on the water, I wouldn't think. I would think it would be built in. T. 71. However reasonable this assumption, and the unstated assumption that his crew had not (inadvertently) removed the flashing in taking off the existing roof, the evidence as a whole showed there was no flashing around the chimney by the time respondent's crew put down the new shingles.
Recommendation It is, accordingly, RECOMMENDED: That the Construction Industry Licensing Board fine respondent five hundred dollars ($500). DONE and ENTERED this 1st day of January, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 1st day of January, 1991. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Rowlett W. Bryant, Esquire 833 Harrison Avenue Panama City, FL 32402
Findings Of Fact At all times material, Respondent, Stephen M. Oliver, was both a registered roofing contractor, holding license RC 0042579, and a certified building contractor, holding license CB 025099. Both licenses were issued by the Florida Construction Industry Licensing Board. On or about July 3, 1985, Respondent entered into a contract with Betty Davis to remodel her house in Bradenton. The total contract price was $3,600. Work on the Davis job commenced on Wednesday, July 3, 1985, and proceeded on July 4 and 5 and July 9 through 12, 1985, before Respondent applied for and obtained a Manatee County building permit for the job. This is a violation of local law. Respondent was not attempting to avoid obtaining a permit for the work. He was just busy and did not timely get one. The building permit obtained does not reflect that the permit covered installation of an oven range hood. Although part of the contract, that work was not included on Respondent's application for a building permit. No separate mechanical permit was obtained for this work. Respondent willfully and deliberately installed the oven range hood on the Davis job without obtaining the required Manatee County mechanical permit. At all times material, the Board of County Commissioners of Manatee County had adopted the Standard Building Code and Standard Mechanical Code, with accumulated supplements, to govern construction in Manatee County. Under the applicable code provisions, installation of an oven range hood is mechanical work for which a mechanical license and mechanical permit are required. Respondent is not licensed or qualified by the State or by Manatee County to do mechanical work. Respondent willfully and deliberately did the mechanical work on the Davis job, i.e., installation of the oven range hood, without being licensed or qualified to do it and without a mechanical permit. Respondent's work on the Davis job was incompetent and grossly negligent in that some electrical wires were covered over by vinyl siding that Respondent installed without first being covered with protective coating to prevent safety hazards, in violation of the applicable building code. Otherwise, Respondent's workmanship was not the best, but it was not incompetent or grossly negligent. On or about March 22, 1985, Respondent entered into a settlement stipulation in which Respondent admitted to charges of not getting the required building permit for an August 25, 1983, contract until eleven months after work began. Respondent was fined $500 for that offense. Shortly before the final hearing in this case, Respondent entered into a settlement stipulation in which he admitted to charges of: (1) performing a February 18, 1985, contract without obtaining the required permit and inspections; (2) performing a March 6, 1985, contract by October 1, 1985, without having all necessary inspections done; (3) performing a January 22, 1985, contract without having all necessary building inspections performed, without correcting all violations cited during inspections, and falsely swearing by affidavit that the masonry contractor had been paid; and (4) not having the necessary final inspection done after performance of a March 16, 1985, contract. For these offenses, Respondent was fined an additional $1000 and placed on probation through February, 1988.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order fining Respondent, Stephen M. Oliver, $1500.00. RECOMMENDED this 26th day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-5035 Respondent filed no proposed findings of fact. Petitioner's proposed findings of fact are accepted and incorporated to the extent necessary. This ruling complies with Section 120.59(2), Florida Statutes (1985). COPIES FURNISHED: G. Vincent Soto, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Stephen M. Oliver 2423 Manatee Avenue West Bradenton, Fl 33505 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Fl 32201 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Fl 32399-0750
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059. New Veep At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work. As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time. Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job. Remodeling On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1. Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work. Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract. Dry Clothes Wet Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder. The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof. Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby. In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound. When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned. Inspection and Supervision In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project. At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence. In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished. After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
The Issue Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?
Findings Of Fact Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93) But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to the issues herein, petitioner Davis was an automotive equipment repair foreman at respondent's Pinellas County Maintenance plant. In addition to this employment, petitioner also had a pecuniary interest in the Sunshine Speedway in St. Petersburg. A steel pole was located on private property belonging to Sunshine Speedway. Because persons and/or vehicles had been injured by this pole, petitioner and a heavy equipment operator employed by respondent decided to remove it. They went to respondent's maintenance yard at 6:30 or 7:00 p.m. after their hours of employment, got a crane truck belonging to respondent, drove it to the Speedway, removed the steel pole to another area and returned the truck to the maintenance yard after dark. Petitioner neither asked for nor received permission to use respondent's equipment for this purpose. At a time when petitioner was leasing the Sunshine Speedway, and during his hours of employment with respondent, he filled a dump truck belonging to respondent with limerock or scrap materials. After his hours of employment with respondent, petitioner drove this truck to the Speedway and dumped its contents near the entranceway for the purpose of making a culvert or crossover. While there was some evidence that petitioner had the permission of his immediate supervisor, Mr. William Dasher, to use the respondent's scrap culvert material, petitioner admitted that no one gave him the authority to improve the entranceway to the Speedway or to use the respondent's truck for this purpose. As a result of the facts described in paragraphs 2 and 3 above, respondent found that petitioner had violated state rules and regulations and departmental policies with regard to the unauthorized use of state equipment outside of his regular assigned duties and responsibilities and for other than state purposes. The disciplinary action taken was demotion of petitioner from automotive equipment repair foreman at Pinellas Maintenance to automotive equipment mechanic II and reassignment to Tampa Maintenance. Petitioner thereafter appealed this disciplinary demotion and reassignment to the Career Service Commission. The matter was referred to the Division of Administrative Hearings for hearing, and the undersigned was designated to conduct the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Commission affirm the demotion and reassignment of petitioner inasmuch as the same was based upon good cause and was in accordance with established rules and regulations. Respectfully submitted and entered this 23rd day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Horace E. Davis Post Office Box 375 Pinellas Park, Florida 33565 Mrs. Dorothy Roberts Appeals Coordinator Phillip Bennett, Esquire Department of Administration Department of Transportation Room 530 Carlton Building Haydon Burns Building Tallahassee, Florida 32304 Tallahassee, Florida 32304
