Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
Findings Of Fact Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981, and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each. PLANS CHANGE After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.) At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation. STOP WORK ORDER ENTERED On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated: Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved. All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date. While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work. For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4 (A)(B). Petitioner's Exhibit No. 5. The following day, Mr. Pariser wrote Mr. Cowley, as follows: In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and 304.4 is invalid. We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . . Respondent's Exhibit No. 16. Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows: I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code. After meeting with your architect, Mr. Bryan, I propose the following solution. The stop work order will remain in effect for Construction only, i.e. steel re-inforcement, concrete, etc. could not be placed. Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming. If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15. To this, Mr. Pariser responded the following day with this letter: In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81. There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns. Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card. My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance. If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19. On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981. STOP WORK ORDER VIOLATED By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light. STRUCTURAL PROBLEMS In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981. SHORING ORDERED On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated: I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings. Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10. A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied: I am in receipt of your letter of May 7, 1981, please be advised that even though Raben-Pastal is respecting your wishes as to the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6. In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley: I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound. We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8. Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name: Per your instructions requiring 4 post shores to be placed around our columns on building C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5. During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser. FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling. If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall. On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic], Mr. Thomas and I made an inspection of the above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81. Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order. YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END. ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION. Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11. To this letter Mr. Fowler replied, also on May 15, 1981: Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th. It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation. As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab. However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it? Respondent's Exhibit No. 10. The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building. Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T. 306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony. Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated. The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler. LOAD TEST As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled. LAWYERS' MISUNDERSTANDING Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted. That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact. Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode. BUILDER'S ENGINEER STOPS TEST Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.) SECOND STOP WORK ORDER ENTERED On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued: With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9 of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued. During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr. Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12. By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981. On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six months. DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of September, 1982.
The Issue The principal issue in this case is whether certain local technical amendments to the Florida Building Code adopted by the Broward County Board of Review and Appeals (BORA) comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). As to Broward County, there is the additional issue of whether Broward County is a proper party to this proceeding.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and upon the parties' stipulations, the following findings are made: Findings about status of Broward County Respondent Broward County is a county created pursuant to the laws of the State of Florida. Broward County became a charter county effective on January 1, 1975, by a referendum approved by the voters of Broward County in November of 1974. In 1976, the Broward County Charter was amended to add a new Section 8.18, which the legislative history for the charter describes as establishing BORA as “an arm of Charter government.” Broward County has not voted to adopt any local amendments to the Florida Building Code. Findings about status of BORA Respondent BORA, is a board created under the provisions of the Charter of Broward County (the “Charter”). BORA was originally created in 1971 by a special act of the Florida legislature, 71-575, Laws of Florida, Special Acts of 1971. That special act adopted the South Florida Building Code, as the applicable building code for Broward County and included within the South Florida Building Code as Section 203 the following language, which created BORA: 203. Board of Rules and Appeals. In order to determine the suitability of alternate materials and types of construction, to provide for reasonable interpretation of the provisions of this code and to assist in the control of the construction of buildings and structures, there is hereby created a BORA, appointed by the appointing authority, consisting of twenty-four (24) members who are qualified by training and experience to pass on matters pertaining to building construction. Findings about status of Petitioners Petitioner, TRG-Aquazul, Ltd. ("TRG"), is a Florida limited partnership and is the developer of a high-rise multi- family residential building project located in Broward County (“Project”) which is subject to the Florida Building Code, as amended, in Broward County. Petitioner, Alfonso Fernandez-Fraga, is a principal of Initial Engineers. Mr. Fernandez-Fraga and Initial Engineers are the mechanical engineers of record on the Project. Mr. Fernandez-Fraga's firm has designed other high-rise residential buildings in Broward County in the past and plans on doing more such projects in the future. Petitioners allege that they will be materially and adversely affected by the application of the Broward County local technical amendments to the Florida Building Code in that the application of said technical amendments to the Project will require a redesign of the mechanical systems of the Project to comply with those technical amendments and undertaking such redesign will cost significant time and money. Alfonso Fernandez-Fraga submitted plans to the Broward County Building Department for approval in connection with the Project. The plans submitted included plans for smoke control measures. The smoke control measures were not approved by the chief mechanical official because in his estimation they did not comply with the local technical amendments to the Florida Building Code enacted by BORA on March 1, 2002. Despite the Broward County Building Official’s suggestion that Mr. Fernandez-Fraga appeal the Building Official’s decision interpreting the applicable code, Mr. Fernandez-Fraga decided not to appeal that decision. Rather, Mr. Fernandez-Fraga chose to challenge the validity of the local technical amendments to the Florida Building Code adopted by BORA, a different appeal than the one discussed with the Building Official. TRG, through its engineer and its architect of record on the project, attempted to comply with option four of the local technical amendments at issue here, which allows one to achieve an understanding with the local building official on an alternative method for smoke control. TRG could not, and did not, reach that understanding with the Broward County Building Official. The building that TRG proposes to build is over 75 feet high, which makes it subject to the local technical amendments at issue here. At the time the local technical amendments at issue here were being adopted, Petitioners were not concerned with such developments because at that time they did not have any projects in Broward County. Findings about BORA's amendment process Once it was clear that Florida was going to have a new statewide Florida Building Code, BORA embarked upon a course of action to adopt several local technical amendments to the Florida Building Code. Such amendments were allowed, with certain qualifications and requirements, by the then-new statutes providing for the implementation of a new Florida Building Code. On March 1, 2002, BORA adopted the local technical amendments that are at issue here. Those two local technical amendmants, Sections 412 and M403.6.4, contained standards for the application and testing of smoke control systems for high-rise buildings. The two amendments were more stringent than the corresponding requirements in the Florida Building Code. Each of these local technical amendments had been part of Broward County’s local building code in effect prior to the adoption of the Florida Building Code, and as set forth in the South Florida Building Code, Broward Edition. BORA sought to maintain the status quo within Broward County with respect to the adoption of these two local technical amendments to the Florida Building Code, a status quo that had been in effect since the mid 1980's. The two local technical amendments at issue here did not introduce any new subjects that had not previously been contained in the South Florida Building Code, Broward Edition. The process leading up to the adoption of amendments on March 1, 2002, began several months earlier with the appointment of a committee and a sub-committee to discuss and draft proposed amendments. The chairman of BORA’s Mechanical Committee appointed a subcommittee which reviewed materials and made decisions with respect to the Local Amendments and made recommendations to the Mechanical Committee which, in turn, made recommendations to BORA The meetings of BORA’s Mechanical Committee and its Smoke Control Subcommittee were not publicly noticed in the Sun Sentinel or any other local newspaper of general circulation. No findings or determinations made by BORA’s Mechanical Committee or Smoke Control Subcommittee with respect to the local need to enact the Local Amendments are reflected in the minutes of their meetings. On December 13, 2001, BORA held a hearing to receive and consider information from the subcommittee and the committee regarding the pending proposed amendments. BORA’s December 13, 2001 hearing was not publicly noticed in the Sun Sentinel or any other local newspaper. Final BORA action to adopt the proposed amendments was eventually scheduled for March 1, 2002. The March 1, 2002, BORA meeting was the only BORA meeting pertaining to the local technical amendments at issue here that was publicly noticed in the Sun Sentinel or any other local newspaper. BORA did not make any findings or determinations at the March 1, 2002, meeting. There was no discussion or determinations made at the March 1, 2002, hearing regarding whether there was a local need justifying the subject local technical amendments. There was no discussion at the March 1, 2002 hearing regarding the subject local technical amendments. At the March 1, 2002, meeting, BORA determined that what its Mechanical Committee presented was acceptable and BORA therefore voted to adopt it without any meaningful discussion. BORA did not make any other determinations with respect to the local technical amendments at that hearing. The members of the Florida Building Commission’s Mechanical and Technical Advisory Committee, which drafted and/or made recommendations with respect to the Florida Building Code, are presently considering the possibility of putting more stringent smoke control measures into the Florida Building Code for statewide application. Findings about the challenge process Broward County does not have, and has never had, an interlocal agreement establishing a countywide compliance review board for the purpose of reviewing any challenges to local technical amendments to the Florida Building Code that may be challenged by a substantially affected party. Neither Broward County, per se, nor any of the municipalities in Broward County, is authorized to exercise any authority over the building code in Broward County. In light of this situation in Broward County it appears to have been the concensus of the members of BORA that it was simply not necessary to structure any interlocal agreement nor create any county-wide compliance review board as otherwise generally provided for in the applicable statutory provisions. Thus, when Petitioner Fernandez-Fraga advised BORA that he wished to challenge the validity of two of the local technical amendments adopted by BORA, it was initially unclear where the challenge should be filed and where it should be heard. Following discussion with Commission staff, BORA advised that the challenge should be filed with BORA and would be heard by BORA. On or about March 20, 2003, Petitioners filed an appeal with BORA challenging the validity of the subject amendments. BORA scheduled a hearing on the challenge for April 10, 2003. BORA was apparently of the initial view that it was hearing the Petitioners' appeal in the capacity of a statutory "countywide compliance review board" because BORA originally noticed the April 10, 2003, hearing as being held by “the Board of Rules and Appeals sitting as a Countywide Compliance Review Board pursuant to Florida Statutes 553.73(4)(b) to hear challenges to Broward County Local Amendments to Sections 412 and M403.6.4 by Mr. Alfonso Fernandez-Fraga, P.A.” Notwithstanding the notice and agenda of the April 10, 2003, BORA meeting/hearing, during the course of the hearing BORA took the position that Broward County does not have a countywide compliance review board as described in Section 553.73(4)(b)8, Florida Statutes. Counsel for BORA stated, on the record, that BORA “has exclusive authority over the building code in Broward County.” Counsel then advised the Board: That statutory section which refers to an interlocal agreement applies to counties where the county and municipalities have the authority to amend the code. In Broward County, the municipalities and the county do not have that authority. Therefore, we don’t have a Compliance Review Board in Broward County because it’s just not authorized because we operate on a different procedure here. The Board of Rules and Appeals has the sole authority to amend the code, so we’re hearing this appeal tonight really as an appeal to reconsider whether the action of this board in March of 2002, when you passed these amendments, were done properly, and that’s the sole issue. The appeal was heard by BORA on April 10, 2003. BORA voted unanimously to deny the appeal. Mr. Fernandez-Fraga promptly received a letter from James DiPietro advising him that the appeal had been rejected. Thereafter the Petitioners timely filed their petition seeking relief from the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which concludes that, for the reasons set forth above, the local technical amendments adopted by BORA which are challenged in this case fail to comply with the requirements of Section 553.73(4)(b)1, Florida Statutes (2001), and are invalid local technical amendments, and further concluding that Broward County is not a necessary or appropriate party to this proceeding. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2003.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been certified by Petitioner as a building code administrator in the State of Florida. On April 5, 1993, Respondent began his employment with Metropolitan Dade County, Florida, as the permit control division chief in the County's Department of Building & Zoning, now known as the Department of Planning, Development and Regulation. Carlos Bonzon was the head of the County's Department of Building & Zoning and also served as the County's Building Official. The Port of Miami is another department within Metropolitan Dade County. At all times material hereto, Carmen Lunetta was the head of that department. The County desired to expand Terminals 8 and 9 at the Port of Miami to accommodate a Carnival Cruise Lines mega-cruise ship, anticipated to arrive in March 1996. The County was concerned that if it could not offer the taller terminal required for such a large ship, the ship would utilize Port Everglades instead of the Port of Miami. For purposes of construction, Terminals 8 and 9 were "threshold" buildings. A threshold building is one which is of such magnitude or complexity that the construction requires continuous inspections. Those continuous inspections are performed by the on-site "threshold inspector," the engineer of record, who keeps a log of the on-going inspections. The expertise required of a threshold inspector is beyond that of most County field inspectors. When a threshold inspector is involved, the County's inspectors check to make sure the log is being kept up-to-date and on-site. On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit. While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code. Construction work began on Phase I, the foundation for Terminals 8 and 9. By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time." By letter dated June 29, 1995, Port Director Lunetta again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time." There is no such permit as a conditional permit under the South Florida Building Code. In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project. As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project. On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only." Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits. All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only. At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official. On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control Division Chief. In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative. Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans. Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete. Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued. Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule. He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code. On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed. In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety. On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9. There was never any danger to the public as a result of the construction of Terminals 8 and 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998. COPIES FURNISHED: Diane Snell Perera, Esquire Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N607 Miami, Florida 33128 Gary B. Goldman, Esquire Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue presented is whether Respondents are guilty of violating Section 471.033(1)(g), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Julian Irby was a licensed Professional Engineer with license number PE 43316 and Irby Engineering & Construction, Inc., held Certificate of Authorization #9511 issued by the Board of Professional Engineers. Mr. Irby has been licensed in the State of Florida as a professional engineer since 1990 and spent 21 years in the United States Navy Civil Engineer Corps. He is also a licensed general contractor. Respondent Irby was the engineer of record, with the firm name on the title block of plans for a residential construction project described as, "House Relocation, Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the relocation project). On or about June 2, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Inspections Department of Escambia County (Building Department). On or about June 7, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Department. On or about June 25, 2004, Irby signed and sealed six of six pages of plans (the June 25 plans) for House Relocation at 1000 La Paz Street, and filed them with the Building Department. Permitting for the project was performed in a two- step process, with a preliminary foundation plan submitted before the house was moved from the old site in order to obtain a moving permit and foundation permit. After those permits were issued, Respondents received test results from a geotechnical firm that caused some alteration in the design of the footings to accommodate the water table at the new site. The plans upon which the building permits were ultimately issued and which were used by the construction crew in the building process were the June 25 plans. On or about February 1, 2005, Irby signed and sealed seven of seven pages of plans for House Relocation at 1000 La Paz Street, and filed them with the Building Department on February 24, 2005. The seven pages of plans for the House Relocation signed and sealed February 1, 2005, and filed with the Building Inspections Department of Escambia County on February 24, 2005, represent the relocation project as completed. Changes made during construction and approved in the field are reflected in this set of plans. The Florida Building Code 2001, as amended 2003, is applicable to this case. The relocation project involved moving an existing home from Perdido Bay to a location several hundred feet further inland. The house was an elevated structure at the original location and was elevated at the La Paz address. Respondent Irby was not only the engineer of record but was also the contractor for the project. Certain features of the construction and design of the original structure were not known at the time the original plans were submitted for the foundation. For example, there was a façade that hid from view the I-beam, stringers and pipe posts under the floor of the home. These features could not be seen until the façade was removed in preparation for the move. Relocation projects are subject to certain exceptions under the Florida Building Code. Some design specifications normally required when building a house are not required for a relocation project, because the existing structure need not be redesigned or brought up to code as long as it meets conditions specified in Florida Building Code Section 101.4.2.3. There is no allegation that those conditions were not met in this case. The primary requirement for a relocation design is foundation plans sealed by a professional engineer or architect, if required by the Florida Building Code for residential buildings or structures of the same occupancy class. Respondents' plans filed with the Escambia County Building Inspections Department included foundation plans. Both witnesses testifying for the Petitioner stated that they did not review or prepare any calculations related to the plans and there was no evidence presented that the Building Department had required the calculations to be submitted with the plans. James Lane, who testified on behalf of the Petitioner, acknowledged that there is nothing in the Florida Building Code to prevent an engineer from using the dead weight of the house on the piers and the friction it creates as a method of construction. If the dead load of the house and the friction transfer from the house to the top of the piers is sufficient to address the lateral wind requirements, then straps (also referred to as connectors) would not be necessary to meet the requirements of the Florida Building Code. The main wind force resisting system for the relocation project was the embedment of the foundation piers in the fiberglass reinforced slab and continuous footing in the garage area. Page 6 of the June 25 plans specifies a four-inch minimum monolithic concrete slab with fiberglass reinforcement, using 3,000 PSI concrete, as well as number 4 rebar throughout the footings. There is no requirement that the exact location of rebar splicing be noted on the plans, and the plans are not deficient for failing to provide that information. Moreover, the Florida Building Code requires that a minimum of 2,500 PSI concrete be used. Respondents' design exceeded this requirement. Respondent Irby performed calculations, using the dead load weights in Florida Building Code Appendix A, that showed that the dead load of the existing house sitting on piers with the friction it created was more than sufficient to withstand the required lateral wind load. Mark Spitznagel, P.E., reviewed both the plans and the calculations and visited the construction site. He opined that the calculations showing wind loads could be supported using dead load friction between the house and the piers were correct, and that the Florida Building Code does not require an engineer to explain that no connector, or strap, is required under this circumstance. His testimony is credited. Despite the fact that no connectors were actually required, page six of the June 25 plans included directions for connectors that were used to provide additional support. The Administrative Complaint alleges that the plans do not provide adequate guidance for transfer of horizontal wind loads from the house to the supporting piers and posts or how the supporting piers and posts are to resist imposed loads from the house. The evidence presented at hearing did not indicate what information the Petitioner believed would be sufficient to meet the applicable standard of care. Moreover, the evidence presented supports the conclusion that the metal posts were never intended to transfer lateral wind loads, but were to support vertical loads. The metal posts were part of the existing house and not subject to redesign under the exemption afforded in Florida Building Code Section 101.4.2.3. Shear walls were not considered in the calculations performed by Irby. However, the June 25 plans included shear walls around the garage area, which served to provide extra support over and above what would be required by Irby's calculations. The detail provided on page 6 of the June 25 plans provided a clear load path from the foundation through the shear walls to the upper original structure. The June 25 plans admittedly do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size or thickness for top and bottom plates for the pipe posts. This information is not provided because the pipe posts were part of the original structure and there was no need to redesign them or include them in the foundation plans. The slab beneath the structure was also shown on sheets 1-3 and 6 of the June 25 plans. The slab characteristics are shown in the monolithic footing detail. The upper floor framing members, including the floor joists and the stringers and the I-beam atop the pipe posts were part of the original house design. The house was elevated at its original location, and the stringers, I-beam and pipe posts were part of the original structure. These components did not need to be shown on the plans because of the exemption provided in Florida Building Code Section 101.4.2.3. Respondents did not include main wind force resisting loads for the structure because the Florida Building Code does not require them to be shown for residential, as opposed to commercial, projects. Based on the evidence presented, only component and cladding pressures are required to be shown on the plans, and page 6 of the June 25 plans clearly provides this information. In accordance with Florida Building Code Section 1606.1.7, wind loads for components and cladding were provided showing that the structure was designed to withstand winds up to exposure category D, at 140 miles per hour. The house was actually moved and put in place on the foundation piers three days prior to Hurricane Ivan. Hurricane Ivan was a major hurricane causing extensive damage to the Pensacola area. According to the National Weather Service's Tropical Cyclone Report for the storm, Perdido Key was "essentially leveled." The house relocation project sustained no structural damage in Hurricane Ivan.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Administrative Complaint against Respondents be dismissed. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 A. G. Condon, Jr., Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Calloway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, 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 October, 1992.
