The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
The Issue The issue is whether the proceeding initiated by the Department to suspend the certificate of qualification of Traylor Brothers, Inc. and Archer-Western Contractors, Ltd. on May 30, 1991, should be dismissed for failure to comply with the Department's own procedural rules.
Findings Of Fact Traylor Brothers, Inc. and Archer-Western Contractors, Ltd. are joint venturers, who successfully bid to construct a portion of the I-95 expansion program in Broward County. Their contract was to widen 5.7 miles of I-95, including a number of bridges. The contract the Department signed with the joint venturers contained two time-related deadlines, an interim/milestone completion date of 550 days after the Department issued its notice to proceed with the contract, and a contract completion date of 670 days after the joint venturers received the Department's notice to proceed. As is common in such contracts, the joint venturers requested extensions of the contract interim/milestone and contract completion dates. Obtaining such extensions when they are justified is important to the contractor, because a failure to meet those deadlines can result in substantial penalties, including suspension of the contractor's Certificate of Qualification to bid on other contracts, and the imposition of liquidated damages. On February 27, 1990, the resident engineer supervising the project on behalf of the Department of Transportation, James W. Ordway, who is an employee of the engineering firm of Post Buckley, et.al., wrote to the area manager for the joint venturers concerning a completion schedule the joint venturers had submitted on February 12, 1990. Mr. Ordway told the joint venturers that the Department had "agreed to a 35 calendar day extension of the contract milestone [date], but the contract completion [date] was to remain at 670 days". This letter was a response to a request made by the joint venturers for extensions of the milestone date and a final completion date due to subsoil excavation problems. While the February 27, 1990, letter from the Department's engineer agreed to the contract milestone extension, it did not deal with the contract completion date directly, for although the completion date was not extended, the request for extension of the completion date was not squarely denied. The joint venturers emphasized this point in a letter to the Department's District IV Direction of Operations dated March 9, 1990. The parties have been in negotiations with respect to the effect of subsoil excavation on the completion date for a long time; those negotiations led to an amendment to the construction contract, which bears the title "Supplemental Agreement." It was executed by the parties in March of 1991, the last signature was placed on the Supplement Agreement on March 25, 1991. Paragraph 3 of that agreement, and the language immediately following paragraph 3 state: (3) The interim milestone date of the contract is hereby extended thirty-five (35) calendar days, as agreed to in the Department's letter to the contractor dated February 19, 1990. This time extension does not alter the contract duration. The contractor takes exception to the adjustments to the contract made by the Engineer for Subsoil Excavation only, but agrees to perform the work and to accept compensation as determined herein by the Engineer without prejudice to any claim related to Subsoil Excavation which the Contractor may submit pursuant to Article 5-12 of the Standard Specifications. The Contractor's exception to the adjustments for Subsoil Excavation shall not constitute notification by the Contractor of his intention to make [a] claim for compensation in addition to the adjustments agreed to in this Supplemental Agreement. (Joint Venturers' Supplemental Response to its Motion to Dismiss and Reply to the Department's Response Thereto, Exhibit G.) On that same day, the joint venturers sent a letter to the resident engineer, Mr. Ordway, which stated The Department has extended the milestone date by 35 calendar days for this work. The Contractor claims for an extension of the final completion date for the same 35 days. (Id., Exhibit H.) This request for an extension was consistent with the agreement memorialized in the Supplemental Agreement quoted in Finding 4, above. The joint venturers received no response to their request for a 35 day extension of the project completion date made in the March 19, 1991, letter before they received the Secretary's notice that the Department intended to suspend the joint venturers' Certificate of Qualification under Rule 14-23, Florida Administrative Code, for unsatisfactory progress on the construction contract "because the allowed contract time for performing the work has expired and the contract work is not complete." (Secretary's letter of May 30, 1991.)
Recommendation It is RECOMMENDED that the May 30, 1990, notice of intent to suspend the Certificate of Qualification of the joint venturers be dismissed, without prejudice, for the Department's failure to comply with Rule 14-23.013(1), Florida Administrative Code, one of the Department's own rules. DONE and ENTERED this 22nd day of July, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1991. COPIES FURNISHED: Reynold D. Meyer, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 James E. Moye, Esquire Moye, O'Brien, O'Rourke, Hogan & Pickert Suite 710 Southeast Bank Building 201 East Pine Street Orlando, Florida 32801 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: ELEANOR F. TURNER, MS #58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent is a certified building contractor having been issued license No. CE C014020. Be was so licensed and was the qualifier for ARC Construction, Inc. at all times material to this proceeding. On July 25, 1980, Respondent, on behalf of ARC Construction, Inc., contracted with Mr. and Mrs. Richard Doyle to remodel a residence in St. Petersburg. The contract price was $43,180, plus extras of $1,525. Respondent was paid $1,500 initially and received draw payments of $4,318 on August 11, 1980, $8,636 on August 19, 1980, and $10,795 on September 3, 1980. These payments totaled $25,249, or about 58 percent of the basic contract amount and 56 percent of the contract price with add-ons. Respondent was obligated to pay suppliers and acknowledged this responsibility to the complainant, Mr. Richard Doyle, but advised him that he was having cash flow difficulties. Respondent's checks to Scotty's, dated August 10, 1980, for $2,518.28, and August 22, 1980, for $738.99, were dishonored by the bank. His check for approximately $5,000 to Florida Forest Products was likewise returned. Respondent failed to settle these accounts and the complainant was eventually obliged to do so in order to remove the liens on his property. Respondent ceased work on the project in mid-October, 1980, and was terminated by the complainant in January, 1981. At the time Respondent ceased work the project was 50 percent to 80 percent complete.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 29th day of April, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 29th day of April, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James H. Thompson, Esquire 620 Madison Street Suite 2-C Tampa, Florida 33602 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, 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 November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
The Issue Whether Respondent's license to practice architecture should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 481, Florida Statutes, and Chapter 21B-12, Florida Administrative Code, as set forth in the Administrative Complaint, dated July 22, 1981. The Complaint herein alleges that Respondent William L. Juhn should be disciplined for negligence, misconduct, and failing to perform legal obligations in the practice of architecture in that he prepared deficient architectural drawings and specifications for a condominium building at Cocoa, Florida in 1980 which contained inconsistencies, were not in conformity with provisions of applicable laws, and did not clearly and accurately protect the user against misunderstanding with regard to the structural design and other essential parts of the work. It further alleges that the Respondent failed to review the work of the structural engineer and coordinate the architectural and structural drawings and specifications. These deficiencies are alleged to have constituted violations of various provisions of Chapter 481, Florida Statutes, and Chapter 21B-12, Florida Administrative Code. At the commencement of the hearing, the parties submitted a prehearing stipulation (Exhibit 24) wherein Respondent admitted the allegations in paragraphs 1-3 and paragraphs 5-13 of the Administrative Complaint, and agreed that the issues to be tried were those stated in paragraphs 14 and 15 of the Complaint. At the hearing, Petitioner presented the testimony of 13 witnesses and called Respondent as a witness. Respondent testified in his own behalf and presented the testimony of one witness. The parties stipulated to the admission of Exhibits 1-13, and Exhibits 14-25 additionally were received in evidence. Proposed Recommended Orders filed by the parties have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent William L. Juhn, Cocoa Beach, Florida, received a bachelor's degree in architecture from Ohio State University in 1951, and has been a registered architect in Florida for a period of 19 years. He also holds an inactive general contractor's license in Florida. He received additional design training as a graduate student at the University of Florida for a period of one and one-half years in the early 1960's, and thereafter opened his office in Cocoa Beach. (Testimony of Respondent, Exhibits 1, 24) For the past ten years, the greater portion of Respondent's work has been in the design of apartment and condominium buildings. For the last five years, Respondent has prepared architectural plans for some twelve projects involving about twenty high-rise buildings, for Univel, Inc., a general contractor in Cocoa Beach. All except one of the buildings were constructed with shear or load-bearing walls as opposed to a structural system calling for "flat plate" slabs and supporting columns. (Testimony of Respondent, Alles) Respondent's usual contractual arrangement with Univel, Inc. was to prepare preliminary and final architectural drawings, but not to hire other professionals such as structural engineers, mechanical or electrical subcontractors, or to supervise construction. Univel's practice was to separately hire all of such professionals for more expeditious preparation of plans and to coordinate and provide overall supervision of the final product. Univel had used Respondent as an architect and certain other professionals on a continuing basis for a number of projects, and plans on these prior buildings had been substantially similar. It was Respondent's practice under his contracts to prepare architectural plans and drawings and furnish copies to the structural engineer for preparation of structural drawings. Any changes in the type of construction were made by Univel and this information passed back to Respondent and other professionals concerned. (Testimony of Respondent, Alles) At an undisclosed date, Univel, Inc. was employed by Palm Harbor West to build a condominium project known as "Harbour Cay" in Cocoa Beach. Univel entered into further contractual relations with Dynamic Construction Company headed by Lawrence Stoner in connection with the project. The owner of Palm Harbor West was Towne Realty, and its representative, Jack Bennett, was assigned to the project to deal with contracts, pricing, and schedules. (Testimony of Alles, Bennett, Stoner) On January 11, 1980, Respondent entered into a contract with Univel wherein he agreed to draw the plans for a five-story, 45-unit, apartment building at Harbour Cay for $4,200. The contract specifically excluded various types of work, including structural, electrical or mechanical engineering, inspection of construction or any involvement in the construction phase of the building. It also provided that conferences with persons other than the representatives of Univel, Inc. were to be excluded from the scope of contractual services, but that the architect would "cooperate with the engineers for the building". Although the contract provided that the plans would be submitted to the "undersigned" for approval as work progressed and on or before each payment request is made, the intent of this provision was relative to the architect's submission of plans to Kenneth Alles, Vice-President of Univel, Inc., rather than submission of other plans to the architect. (Testimony of Respondent, Alles, Exhibit 5) Pursuant to his contract, Respondent commenced work and exchanged information with Harold Meeler, the structural engineer hired by Univel, frequently during the preparation of the architectural plans and structural drawings. Preliminary drawings provided to Meeler showed the height of the building, wall openings, general arrangement of apartments, and the size of the building "envelope" or overall dimensions of the structure. Prior projects that Respondent and Meeler had worked on involved load-bearing masonry walls for exterior walls and masonry partitions between the apartments. Respondent therefore assumed that the method of structural support for the Harbour Cay building would be the same as had been the case in prior projects, and drew his plans accordingly. (Testimony of Respondent, Meeler, Exhibit 9) It was the original intent of Univel, Inc. and the owner, Towne Realty, to construct Harbour Cay using a load-bearing masonry structural system. However, soil testing at the site revealed that the ground was not stable enough to support load-bearing walls unless existing soil was removed and fill placed in the area. It was therefore determined by Alles and Bennett that the structural system should consist of a "two-way" flat plate slab and reinforced concrete columns with no shear walls or masonry interior walls. Respondent's drawings had also anticipated that spread footings would be used, but the change in the structural system led to the use of pilings and pile caps as the most suitable foundation method. It was also decided that metal stud unit partition walls would be used to separate the apartments. Meeler was advised of the required changes and he prepared his structural drawings accordingly. The structural drawings were dated August 10, 1980. Meeler submitted them to Respondent for assembly with the architectural plans, and mechanical and electrical drawings. Structural calculations were prepared by A. M. Allen, an engineer hired by Meeler. (Testimony of Respondent, Alles, Meeler, Bennett, Allen, Exhibits 9, 11, 12) Although not within the scope of his agreement with Univel, Inc., Respondent prepared the mechanical drawings in addition to the architectural drawings at the request of the builder. About the time the plans were completed, Respondent became aware that the structural system had been changed. His only concern at this time was whether the columns would fit within party walls and, after being assured by the structural engineer that they would do so, Respondent did not see the need for changing the architectural drawings since there would be no interference with the fire wall separating apartment units, no interference with plumbing, and no need to rearrange rooms, thereby obviating the need for other than minor changes to the architectural drawings. It was Respondent's intention that the structural changes, as well as any subsequent changes to the original plans would be incorporated into "as built" drawings at the end of construction. However, no revised architectural drawings were ever received by the Cocoa Beach building department. It is not unusual for frequent changes to be made in building plans as construction progresses, but major changes in structural design which are known by the architect prior to submission of plans for a building permit should be incorporated into the basic architectural design. (Testimony of Respondent, Straub, Washer, Exhibits 9, 25) Respondent assembled the various plans and drawings and signed and sealed his architectural and mechanical drawings and specifications on September 24, 1980. The structural drawings and calculations were signed and sealed by Meeler on the same day. The building plans were delivered to the building department of Cocoa Beach at an undisclosed date thereafter for preliminary review. The plans were thereafter approved, subject to changes required in a "plan check" issued by the chief building inspector of the department on October 6, 1980. There were eight items listed by the building inspector, three of which related to the architectural drawings, and three relating to the mechanical drawings. Discrepancies on the architectural drawings required recopying of Sheet 8 since dimensions were not clear on that page, and to provide the location of wood and metal external jams which were not shown on the drawings. Also, it was noted that wood storage enclosures on patios must be of fire treated lumber. The noted discrepancies on the mechanical drawings involved plumbing matters and indicated that a "clean out" was required at the base of the waste system on one sheet, that a three-inch waste stack should be changed to a minimum of a four-inch stack as required under the Standard Plumbing Code, Section 1305.1, and that energy cutoff devices on automatically controlled water heaters, as required under Sections 1213.2 and 1209.5 of the Standard Plumbing Code, had not been provided. Respondent's plumbing drawings were unacceptable to the building department unless the noted modifications had been made. However, the plumbing contractor later provided supplemental plumbing drawings which were used for Harbour Cay in lieu of Respondent's plans in that respect. The plumbing contractor had had similar difficulties on past jobs with plumbing drawings prepared by Respondent. The building official of Cocoa Beach described Respondent's plans as similar to others that Respondent had prepared, and that the Harbour Cay drawings were an "average set" from which a building could be constructed, but "you would have to know exactly what you were doing." (Testimony of Straub, Hollifield, Haber, Exhibits 8, 13, 14). On October 28, 1980, Dynamic Construction Company, by Lawrence Stoner, President, applied for a building permit from Cocoa Beach to construct the Harbour Cay condominium. On or about November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., the owner of Harbour Cay, whereby Univel agreed to construct a condominium project to be known as Harbour Cay. On December 5, 1980, the City of Cocoa Beach building department issued Permit No. B5263 authorizing construction of Harbour Cay. At the time the permit was issued, the 1979 edition of the Standard Building Code was in effect in Cocoa Beach, having been adopted by the City on October 18, 1979. (Testimony of Straub, Alles, Exhibits 4, 6, 7, 24). Construction commenced on the project thereafter and the basic structure had been substantially completed when, on March 27, 1981, the building collapsed, killing eleven persons and injuring approximately twenty-three persons. (Exhibits 10, 24) Respondent's drawings and specifications for the Harbour Cay building were reviewed in the summer of 1981 by Norman Washer, an architectural consultant employed by Petitioner. He determined that the plans and specifications were deficient and substandard in a number of respects under the requirements of Subsection 481.221(5), Florida Statutes. He further expressed the view that Respondent had provided little more than drafting services since he did not assume the leadership role in the coordination of architectural design, and that such failure was inconsistent with certain terms of his contract with Univel. Thereafter, on July 22, 1981 Petitioner filed its Administrative Complaint against Respondent, alleging various deficiencies and inconsistencies between the architectural drawings and structural drawings, and specifications. However, the specific inconsistencies and deficiencies were not set forth in the Complaint. (Testimony of Washer, Exhibit 17). The following findings relate to the various deficiencies and inconsistencies which Petitioner sought to establish at the hearing: Structural System - As heretofore found, major changes were made in the structural system after the architectural drawings had been prepared. Although it is not necessary that architectural drawings reflect minor structural detail, the basic type of framing system should be reflected in such drawings to ensure that the physical dimensions of the structural elements are shown for clarity to users of the plans, that the proper dimensions of structural elements are shown, and that the various parts of the building will fit together. In the case of Harbour Cay, Respondent, once apprised of the structural change, did not modify his architectural drawings to conform with the revised structural design. As a consequence, the plans submitted for permit depicted two different framing systems. Respondent did not show columns on his architectural drawings even though they were a part of the structural framing system. Columns should have been shown in order to make clear whether they would interfere with other elements in the building. His drawings further created confusion by the fact that he had used "shading" to depict masonry exterior and unit separation walls since this method had been used in prior designs for Univel, and was understood by the contractor. However, since Harbour Cay was not finally designed structurally to include load-bearing masonry walls, the use of masonry could have overloaded the structure and created a safety hazard. The structural calculations assumed that all interior walls would be constructed of dry wall on metal studs rather than masonry. In fact, the building contractor used columns in construction of the building and their location did not cause any particular difficulties resulting from their presence and location. The building contractors did not have any difficulty in using the plans and drawings because the structural drawings reflected the use of columns, and therefore it was recognized that interior walls would not be of the load-bearing type. The contractors rely on structural drawings to construct the building and when the frame, or skeleton, of the building is completed, they then find the architectural drawings to be important. The contractors had always used metal studs for buildings with columns because they were of lighter material than masonry. Respondent's architectural drawings reflected a note which disclaimed an intent to show structural information therein, and referred the user to the structural drawings. However, such a disclaimer cannot relieve an architect of his basic obligations to prepare accurate drawings. (Testimony of Power, Washer, Olson, Alles, Bennett, Stoner, Respondent, Exhibits 9, 12, 16) Roof Slope - A roof slope was shown on the architectural drawings, but there was no information as to the method of creating such a slope. Although the structural drawings also did not show such method, it could have been accomplished by sloping the concrete roof slab, or by means of urethane foam. The contractor originally planned to use concrete, but this was later changed to the use of foam by means of a foam machine of the contractor which had been used on prior occasions. To be complete, building plans should reflect the manner in which the roof slope is to be created because if accomplished by sloping of the concrete slab, the structural drawings should so reflect this fact. (Testimony of Bennett, Stoner, Olson, Washer, Power, Exhibit 12) Roof Hatch - Although the architectural drawings showed a detailed sketch of a roof hatch, they gave no information as to its location. Respondent was of the opinion that it could be located in the corridor, but the problem later became moot when field changes eliminated the necessity of a roof hatch and provided for a stairway to the roof. However, since such a roof opening would be made in the concrete slab, its location has structural significance and should have been shown in the architectural drawings. (Testimony of Stoner, Respondent, Power, Washer, Olson, Zeller, Exhibits 9, 12, 20) Roof Parapet - Respondent's architectural drawings show the size of an intended roof parapet, but do not show necessary details for support of the parapet, such as anchorage and reinforcement, or the material to be used in its construction. This is necessary information in order that the structural engineer can design the required support. (Testimony of Washer, Stoner, Wagner, Zeller, Power, Exhibit 12) Lintels - Respondent detailed only mailbox lintels in the architectural drawings, and not the lintels over windows and sliding glass doors. It is important to show the size of such openings in a load-bearing wall structure on the architectural drawings, but is not necessarily required to be on the structural plan if the walls are not load-bearing. The Harbour Cay contractor found no need for this type of detail on the plans in view of the fact that there was a standard practice of using precast "off-the- shelf" concrete lintels in Univel's projects. (Testimony of Meeler, Olson, Stoner, Wagner, Zeller, Washer, Respondent, Exhibits 9, 12) Miscellaneous Discrepancies Stairway and Balcony - Stairway and balcony details, to include handrail construction and attachment, were not shown on the architectural drawings. Respondent believed that since the stairs were shown on the structural drawings as made of reinforced concrete, this properly was a matter to be left to the structural engineer. However, in the opinion of experts, these are safety matters which properly should be shown in architectural drawings. (Testimony of Respondent, Wagner, Olson, Washer, Exhibits 9, 12, 21) Window Sizes - There was a variation in window sizes in the architectural drawings. This was due to a subsequent change by the builder from sliding glass windows to single hung windows, and it was contemplated that the changes would be reflected on "as built" drawings. (Testimony of Washer, Zeller, Stoner, Exhibit 12). Door Schedule and Location - Although Respondent showed details for both metal and wood doors in the architectural drawings, he did not include a door schedule to show the location and particular type of door to be utilized. Respondent left this up to the contractor who, based on prior experience, determined where and what kind of doors should be used at various locations. Although location of jam detail was not shown, Respondent intended that his door jam detail be applicable whether metal studs or wood studs were used. The lack of specificity in this regard was the subject of inquiry by the city building department on its "plan check". (Testimony of Washer, Wagner, Respondent, Burke, Olson, Exhibits 8, 9, 12) Incomplete Index of Drawings, Lack of Fixture, Finish, and Allowances Schedules, Closet Shelves - Respondent conceded that he had failed to provide a complete drawing index by omitting structural drawings due to the fact that tracing for the structural work was not given to him until the builder was requesting completed plans for submission to the building department. Omission of detail information concerning fixtures, shelves, cabinets, floor covering and appliances, was due to past practice between the architect and the builder whereby the cost and types of these items would vary depending upon desires of potential condominium purchasers and current economic conditions. This is not an unusual practice in the condominium building industry, in order to ensure profitability of sales. (Testimony of Washer, Respondent, Stoner, Zeller, Bennett, Exhibits 9, 12) Screen Supports - Types of screen supports were not shown in the architectural drawings because these were to be proprietary items predesigned by the manufacturer. In such a situation, it is preferable to show the type required for safety purposes, particularly with regard to handrails. (Testimony of Washer, Wagner, Zeller, Respondent, Exhibit 12) Roof Coating and Insulation - Respondent's plans called for a "tar and gravel roof". Although tar is infrequently used today, the term is generally acknowledged to include an option for either a tar or asphalt roofing system. Respondent noted two inches of roof insulation on his drawings, but did not specify the "R" value or type of material. The computations for such values were to be included under Respondent's contract, and he assumed that since Univel owned its own polyurethane foam insulation spray machine, that such material would be used on this project as it had in the past. (Testimony of Washer, Zeller, Stoner, Exhibits 9, 12) Specifications - Although Respondent's specifications, as his drawings, were prepared with a load-bearing structure in mind as originally contemplated, no revision was made to take cognizance of the changed framing system. Specifically, with regard to concrete strength and masonry wall reinforcing, they were not in strict accord with the structural drawings. However, the specifications stated that they were to be used only if there was no other indication of concrete strength. The structural drawings indicated vertical reinforcement of masonry while the specifications called for additional horizontal reinforcement. (Testimony of Washer, Respondent, Power, Exhibits 9, 12) Ordinarily, tradition and practice in the architectural profession provides that the designing architect of a particular building or project is to serve as the design coordinator among various other professionals who contribute to the overall design, including structural, mechanical and electrical engineers. The normal practice in such instances is for the architect to either employ the other professionals or to oversee their work and supervise construction to its conclusion. The purpose of this requirement is to ensure that the primary design professional who has specified the basic requirements for the building in question, and is therefore in the best position to ensure compliance with the basic design, can reconcile any conflicts or discrepancies among the various disciplines. The practice also ensures compliance with various local laws and building codes for the safety and welfare of the public. It is ordinarily necessary that all work be coordinated so that the various parts of the building are compatible and achieve an integrated and harmonious result. However, the extent of an architect's services properly can be limited by his contract with the owner or builder, particularly in the case of condominium projects. In a competitive economy, owners are desirous of controlling their own projects to the greatest extent possible in order to ensure expeditious design and construction, and to conserve costs. It is not uncommon in this field for an architect to provide only architectural drawings, with the builder providing for the procurement of engineering services and coordination of the overall result. In such instances, the engineering professionals are not subject to direct oversight by the architect. In fact, attempted control by an architect over other licensed professionals without contractual duties imposed for same can create friction and hamper successful completion of the project. In the final analysis, the building contractor is immediately responsible to the owner for proper construction, and the owner has ultimate control over all phases of the project. The arrangements for construction of Harbour Cay involved a somewhat unusual situation, whereby Respondent contracted with the contractor rather than the owner, and limited his services primarily to preparation of architectural drawings with the provision that he would "cooperate" with the engineers. The other professionals were hired directly by Univel who, together with the other contractor, Stoner, and the owner's representative, Bennett, coordinated the overall project. This arrangement was deliberately chosen in order to provide increased efficiency and speed in accomplishing the project. Although they considered that Respondent had some responsibility in the coordination of the original plans for Harbour Cay, a number of changes were made without always consulting him first. It is found that, although Respondent fulfilled his contractual obligation in "cooperating" with the various engineers in the preparation of design plans, he did not fulfill his basic responsibility to conform his architectural drawings to known changes in the building's structural system when it had been brought to his attention prior to submission of the plans to city officials for a building permit. (Testimony of Wagner, Washer, Burke, Zeller, Power, Olson, Alles, Bennett, Stoner, Respondent, Exhibit 15)
Recommendation That the Board of Architecture suspend the license of Respondent William L. Juhn as a registered architect for a period of six months. DONE and ENTERED this 29th day of April, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM, 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 29th day of April, 1982. COPIES FURNISHED: Wings Slocum Benton, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert R. Kanning, Esquire 1500 American Heritage Life Building Jacksonville, Florida 32202 Herbert Coons, Jr. Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
