The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 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 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether the Florida Land and Water Adjudicatory Commission should permit the development authorized by Monroe County Building Permit No. 9110002601 and, if so, upon what, if any, conditions and restrictions.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The property that is the subject of the development order under review in the instant case (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern. Since 1985, the Property has been owned by Respondent Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP"). The Property is the site of a borrow pit that currently occupies 9.65 acres of the Property's surface area. Since the early 1970's, Rudolph Krause & Sons of Florida (hereinafter referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits"). Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/ Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit. No excavation permit other than the 1991 permit, which is the permit under review in the instant case, has been appealed by the Department. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows: This Court has jurisdiction of the subject matter of this action and of the parties thereto. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corpora- tions in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise. All references to geographical locations with respect to this dredge and fill/restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, which- ever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph. Defendants agree to conduct the above-described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2-feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows: I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional informa- tion since it is in litigation with the Corps of Engineers. As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards. I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time. If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language: THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement: The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas. The work was completed later that year. Mr. Krause was on site during the blasting and provided assistance to DuPont. Krause & Sons paid Dupont a total of $267,131.58 for the blasting. In addition, it purchased or leased equipment to be used in the excavation of the blasted material. It would not have made these expenditures had it known that it would be prevented from completing the excavation of those areas of the Property that the County had authorized it to blast. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/ Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows: Section 9.5-431. General. All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored. Section 9.5-432. Resource extraction standards. All resource extraction activities shall: Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than: Two hundred (200) feet to any property line; and Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued; Be located on a parcel of at least twenty (20) acres; Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads; Will not involve excavation below sixty feet; Will not cause the introduction of saline aquifer waters into fresh water aquifers; Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and Operate solely between the hours of 8:00 a.m. and 5:00 p.m. Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows: Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion; Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated; Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal; All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto. Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section." Among "the provisions of this section" are the following found in subsection (c) thereof: Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or Occupancy of additional lands. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses" is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows: A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued. Section 9.5-115 of the Regulations makes no reference to "renewal" permits. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Typed in under "REMARKS" on Building Permit No. 17487A was the following: APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED Issued under the condition that restoration required from Army Corps be completed. Biologist recommends approval as per Monroe County Code. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug." There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991. The requested permit (Building Permit No. 9110002601) was issued on July 11, 1991. In the "Remarks" section of the permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731 AND 17487A. PLANNING APPROVAL 6-25-91 AG BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED. Neither the application nor the permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Respondents had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed. The Department appealed Building Permit No. 9110002601 to the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order (1) granting Respondents permission to engage in the resource extraction activity they seek to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, and (2) specifying that Respondents shall comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations to the extent that these provisions do not operate to effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of December, 1992. STUART M. LERNER 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 17th day of December, 1992.
The Issue Whether Respondent's license should be disciplined for reasons stated in the Administrative Complaint filed herein dated November 30, 1987.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, is the State agency charged with regulating the construction industry and is responsible for prosecuting administrative complaints issued pursuant to Chapters 489 and 455, Florida Statutes and rules and regulations promulgated pursuant thereto. At times material hereto, Respondent, George Walton, was licensed as a Certified General Contractor in Florida and holds License No. CG C031400. (Petitioner's exhibit E.) At all times material hereto, Respondent was the sole qualifying agent for AMI Improvements Incorporated (AMI). On March 10, 1987, David Lee entered into a contract with AMI to remodel his bathrooms. The scope of the job entailed tearing out interior walls to accommodate a new bathroom, remove a closet to fit a newly installed tub, installation of a marble tub with pad and step, installation of a vanity and tile floors, mirroring the walls, installation of lights over the sink and tub, installation of new faucets and tape and finish the walls. (Petitioner's exhibit 1.) The total contract price was $6,332.50. Pursuant to the contract, AMI was required to obtain the necessary building permits for the job. On April 7, 1987, AMI began remodeling the Lee's bathroom and was paid all but $502.27 of the total contract price by that time. Respondent did not obtain a permit prior to commencement of the work on April 7, 1987. A building permit was required to remodel a bathroom in Broward County in 1987. (Testimony of Susan Marchitello, Custodian of Records for the Broward County Building and Zoning Enforcement Division.) On April 23, 1987, a notice of violation from Broward County was issued to David Lee requiring that he cease and desist from continuing the remodeling work in his home, which work was being performed by AMI. AMI suspended work on the Lee residence on approximately April 23, 1987, and it remained dormant until he applied for a permit on May 7, 1987. While the work was stopped by the cease and desist order, Lee had no bathroom in his home. Upon issuance of the cease and desist order, Lee contacted Richard Bird of AMI, who advised that AMI customarily does not pull permits for inside work as they are normally in and out before anything is seen by building officials. AMI refused to pull the building permits and Lee therefore applied for, and obtained the building permits. AMI's plans and intentions were to complete the construction work at the Lee's home without a building permit. An Owner-Builder permit was issued to Mr. Lee on May 7, 1987. (Respondent's Exhibit 1.) Mr. Lee was without a toilet for 21 days and without a tub and shower for approximately six weeks. AMI promised Mr. Lee that the work would be completed within two weeks after the permits were obtained. Despite this promise, the bathroom did not pass final inspection until July 21, 1987, approximately two months after the permits were obtained. Mr. Lee communicated his concern to AMI in the form of a "punch list" of items to repair. AMI refused to repair those items and Lee, in turn, contacted Daniel Durbano Construction during August 1987 who provided Lee with a proposal to complete those items either that were not completed or to complete/repair those items that were not of workmanlike quality. Durbano presented Lee with his proposal on August 4, 1987, with an estimated cost (to repair the Lee's home) of $3,858.75. (Petitioner's exhibit 3.) After Durbano's proposal was presented to Lee, AMI returned to install the mirror around the tub and the shower stall enclosure. During the time when Lee was negotiating with Durbano about completing the project undertaken by AMI, Respondent was never at the subject site. When a final inspection was called for by Lee, the work completed by AMI did not pass the final inspection. Among the items listed in Lee's "punch list" were (1) the shower stall failed to drain properly as the pitch was almost flat and water settled around the bottom of the shower instead of draining, (2) the marble tub step is crooked and is larger on one end that on the other, (3) the knee wall is crooked and is approximately one inch thicker at the top than at the bottom, (4) the bathroom window does not open properly, (5) the door jam going into the master bedroom is improperly installed, and (6) the plastic caps that affix the toilet to the floor were lost. Lee prepared a second "punch list" and presented it to AMI during August 1987. Among the items listed as deficient were that the floor was uneven and the carpet or tile flooring could not be installed without correcting the floor. Daniel Durbano, a general contractor who is licensed in Florida, performed an inspection of the subject work performed by AMI during September 1987. Durbano found that the tile was not properly laid and the floors were "bumpy and wavy." He also found that the drywall was "wavy" and needed preparation to install wallpaper, there was no casing on the door entrance from the bathroom to the master bedroom, and that the cost would be approximately 20% less than the original estimate of $3,800 that he provided Lee. (Petitioner's exhibit 5.) Respondent is 64 years old and has been a certified contractor since 1954. He is licensed in the states of Ohio, West Virginia, and Florida. Respondent has apprenticed as a carpenter, brick layer, electrician and a plumber. He has been licensed in Florida since 1969. Respondent has twice been a qualifier, once for AMI and with a present engagement, Fixel's Fix It, Inc. As a qualifier for AMI, Respondent pulled permits and supervised construction during the periods of January 1987 through August 1987. Respondent no longer is qualifier for, or is otherwise affiliated with, AMI. Respondent was not aware of the work being performed at the Lee residence, although he was engaged, as a qualifier, to supervise all jobs where AMI was required to obtain a permit. Respondent first learned of problems with the Lee job when he was contacted by Petitioner during December of 1987. Respondent admits that although some of the work done in the Lee's home was probably up to industry's standards, there were areas of workmanship that should have been performed better. Respondent also admits that he relied on Richard Bird, a builder/developer affiliated as a coordinator with AMI and AMI's principal/owner, Tony Enzo, to inform him of projects that needed his supervision or assistance in obtaining permits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that 1/ Petitioner enter a final order imposing an Administrative Fine in the amount of $1,000, payable to Petitioner within thirty days of entry of its final order, for the above-referenced violations of Chapter 489, Florida Statutes. RECOMMENDED this 20th day of January, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1989.
The Issue This is an appeal from Resolution No. P60-99 of the Monroe County Planning Commission ("Planning Commission"), in which the Planning Commission approved the decision of the Monroe County Planning Department ("Planning Department") denying two applications for building permits submitted by the Appellants, Robert and Ruth Stoky ("the Stokys"). One application requested a building permit to reconstruct a screened porch and to build an elevated deck in the rear of the Señor Frijoles/Cactus Jack's restaurants, which are located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-857 ("permit number 99-3-857"). The second application requested a building permit to reconstruct a trellis as a separate structure associated with the Sundowner restaurant, also located at 103900 Overseas Highway, Key Largo, Florida; this application was assigned building permit number 99-3-858 ("permit number 99-3-858"). The instant appeal was forwarded by the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as Appellee in this case. In their Initial Brief, the Stokys abandoned their appeal of the decision of the Planning Commission approving the Planning Department's denial of their application for permit number 99-3-858; therefore, the ultimate issue presented in this appeal is whether the Planning Commission's Resolution No. P60-99 should be affirmed, reversed, or modified with respect to the its decision approving the Planning Department's denial of the Stokys' application for permit number 99-3-857.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By Warranty Deed dated July 2, 1982, petitioner was conveyed "Lot 151, Less the South 1/2 thereof" in Glenwood Subdivision. Lot 151 is presently zoned RS-50. The minimum lot area per dwelling unit in an RS-50 district is 5,000 square feet. Section 131.044, Code of Ordinances of the City of Clearwater. According to the subdivision plat, Glenwood Subdivision contains 154 platted lots, with an average lot size of 8,844 square feet. The smallest platted lot in the subdivision is 6,000 square feet. Lot 151 contains approximately 12,000 square feet. There is an existing single-family dwelling on the southern portion of Lot 151 which portion contains 7,700 square feet. Computations performed from a metes and bounds description of the northern part of Lot 151 which was conveyed to petitioner illustrates that petitioner's portion of Lot 151 contains 4,320 square feet. Section 20-2 of Ordinance No. 1449 provides, in part, that: ". . .Building permits shall not be issued for structures located on subdivided property created subsequent to the adoption of this Ordinance unless such plat of record is recorded in the Public Records of Pinellas County. The City Commission may permit lots of record to be cut in size to not less than the zone permits, without requiring a replat." No request was made to and no approval was given by the Clearwater City Commission to divide Lot 151, a platted lot. The restrictions for Glenwood Subdivision require that only one single- family dwelling house be erected on any single lot or plot. In August of 1982, petitioner applied to the Building Inspection Department of the City of Clearwater for a building permit to erect a single- family residence on his property. Apparently, a survey of the property did accompany the application, but no one in the Building Inspection Department verified the lot size. Petitioner was issued a building permit. Prior to October 27, 1982, petitioner had the land cleared, made soil boring tests, paid water meter fees, laid pilings and had the foundation and walls in place for the lower level of his new residence. The costs of this work, and other expenses related thereto, amounted to some $18,350.00. On or about October 27, 1982, the City issued a "red tag" on the project because it was discovered that petitioner's lot size was substandard. This was the first notification petitioner had of any problem with his lot size. He had never made inquiry concerning the zoning requirements for his lot. Petitioner continued construction on his residence. Two more "red tags" were issued on or about November 2 and November 25, 1982. On the latter date, petitioner was ordered to stop work on the project. Petitioner estimates that between August, 1982, and the date of his hearing (January 26, 1983), he expended approximately $40,710.00 on the purchase of his land and the partial construction of his residence. As noted in the Introduction, petitioner's application for a variance from the lot size requirements was denied by the City's Zoning Enforcement Officer, his appeal to the Board of Adjustment and Appeal on Zoning was denied and the instant proceeding resulted.
The Issue Whether Building Permit No. 9210004560 issued by Monroe County, Florida, to Ken Bockhaut as owner and Shoremont Holiday Homes, Inc. as contractor for the construction of a dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. No appearance was made by Respondents Ken Bockhaut or Shoremont Holiday Homes, Inc., and there was no evidence submitted in support of the permit that is the subject of this appeal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds building permit number 9210004560. DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 26th day of January, 1993. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Ken Bockhaut H-17 Miriam Street Key West, Florida 33040 Shoremont Holiday Homes, Inc. Post Office Box 1298 Big Pine Key, Florida 33043 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
