The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
The Issue The issue for consideration is whether Respondent's license as a registered roofing contractor in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Charles J. Eckert, was a registered roofing contractor in Florida. Petitioner, Department of Professional Regulation, (Department), and the Construction Industry Licensing Board, (CILB), were and are the state agencies responsible for the regulation of the construction industry in this state. On August 7, 1987, James F. Gordon, an individual with a reported building and real estate business background, contracted with the Respondent to install the roof on the house he was building and which he had designed. Mr. Gordon chose the roofer himself rather than using the general contractor's roofer because that individual was not familiar with the type of tile to be installed. Respondent had installed a roof of this type tile on the condominium apartment in which Mr. Gordon was living at the time, and appeared to have done a good job, so Mr. Gordon chose him to do the house roof. The contract was negotiated between Mr. Gordon and the Respondent and his partner who took the plans to study before submitting their proposal to install the tile and base which, upon acceptance, became the contract for the job. Mr. Gordon was to pay for the tile ordered by Respondent. The Respondent ordered 9400 square feet of tile plus caps which came to between $8500 and $8800. The contract between Gordon and Respondent, for installation Of the tile and base, called for a payment of $9800. The original agreement between the parties was executed in July, 1987. Work was to start about three months later, after the permit for house construction had been pulled, based on an estimate of how construction would progress. As the house was erected, Mr. Gordon would notify the Respondent of the progress so he could have some idea as to when his work was to begin. The actual roof work began sometime in October, 1988. Respondent's men came timely and did the hot tar and felting during which time, Mr. Gordon often went up on the roof with the Respondent to see how things were going. The original plans called for Anderson skylights in the roof and Respondent's personnel did not want to use the flashings supplied with them. Mr. Gordon agreed to the change. The tile was custom ordered for this job and took some time to arrive. When it did, it was installed by a subcontractor under arrangement with the Respondent. Respondent never came to inspect or supervise the work of the installers, who he was paying by the piece, after his last visit when the mopping of the tar and felt was completed. Mr. Gordon was there every day and never saw Respondent during the entire installation. Respondent admits that paying by the piece for work of this kind may not be the best way to do it. The actual installation of the tile took approximately three weeks or more during which time the installers frequently complained about the way the roof was cut. The tile manufacturer sent a representative out to examine it. This individual indicated the roof was OK. When the installation was complete, there were 16 yards of tile debris left on the ground around the house. When no effort was made by the roofers to clean it up, Mr. Gordon repeatedly called Respondent's office to complain, and it took approximately two weeks before anyone came out to pick it up. Even then, the debris was merely placed in one large pile in the front yard and neither Respondent nor his subcontractor ever came back to remove it. Mr. Gordon had it removed at his own expense. The contract between Mr. Gordon and Respondent did not specifically provide for debris removal and Respondent claims this work is generally accomplished by the general contractor. No evidence to contradict this claim was presented by Petitioner. It was also noted that the installers mixed the colored cement used in the roofing in the garage and got it all over that area. No effort was made to clean it up before departure. Other deficiencies in installation included uneven installation of tile on the West side of the house. The tiles ran zigzag in their rows. Colored cement was splashed on the soffits; the color of the caps was irregular due to improper mixing of oxide for the cement; and the cap tiles were raised. Several months after installation, holes were discovered under tiles which were lifting up, and there was a leak in the roof near a skylight. Because he was dissatisfied with the roofing job he got, prior to closing, Mr. Gordon notified the bank financing the project that he was withholding $1,000 from the amount due the Respondent. He paid Respondent the balance. Because of personal problems unrelated to this matter, Mr. Gordon wad unable to take any further action for several months, during which time he heard nothing from the Respondent. He was, however, still dissatisfied with the roofing job and ultimately called Respondent to come fix a leak which had developed around a skylight. He received no response to that call and Respondent never showed up. Somewhat later, Mr. Gordon received a letter from a collection agency demanding the thousand dollars he had withheld. Mr. Gordon responded with pictures of the roofing job done by the Respondent and didn't hear anything further about it from either the agency or Respondent. Thereafter, Mr. Gordon filed a complaint with the Department and after that, Mr. Byer, hired by Respondent, came out to the Gordon house to fix the leak and to attempt to fix the discoloration. Mr. Byer removed the loose tiles and re-cemented the caps. Instead of replacing the cement, he painted with a substance which matched the color, but which will last only eight years. The roof is now sound and water tight, but due to the holes in some tiles, the mismatching of colors, and the zigzag courses, it is, to Mr. Gordon, esthetically unsatisfactory. Mr. Gordon has called in another roofer who indicated that the existing problems cannot be fixed. To correct the problem would require reroofing. Respondent's job was also considered unsatisfactory by Mr. Hurlston, the Department inspector who looked at the job in mid February, 1988. In his opinion, the work was sloppy, the tile has been "stretched", the lines are not straight, there are holes between the tiles, the "mud" around the roof ridge is not nesting properly, and some field tile are also raised and not nesting properly. Taken together, the workmanship is poor. It might be acceptable in a project home but not in a custom home as this is. In Mr. Hurlston's opinion, the failure to continuously supervise and correct errors as they occurred shows indifference to the job and constitutes gross negligence. In his opinion, the defects in the finished job are directly attributable to a lack of supervision by the Respondent, and it is so found. Respondent contends the job was done according to the installation specifications supplied by the manufacturer. He claims that the irregularity problem starts with the first three rows of tile and once they are down, the course is set. Correcting problems every couple of rows results in irregular lines and since every 5th line is nailed, if it is not in straight, it's too late to change without removing the whole roof. Assuming, arguendo, this is so, removal may well be the only appropriate course of action open if the installation is not right, and Respondent should have done it if necessary. Mr. Eckert also claims that the loose tiles discovered by Mr. Hurlston were, for the most part, caused by people walking around on the roof. A 10% loose tile rate, as evidenced here, is considered acceptable by the manufacturer. Mr. Hurlston agrees and it is so found. Respondent claims no knowledge of any problem with Mr. Gordon except for the fact that Gordon owes him $1,000. In light of Mr. Gordon's testimony that he called Respondent repeatedly to get him to come out, this is not likely. He has a policy that if a client owes him money, he won't correct any problems with the job until he is paid in full. Nonetheless, he sent Mr. Byer to make any corrections necessary in this case with the instructions to "do anything necessary to make him [Gordon] happy." Byer worked on the Gordon house for about three weeks during which time he replaced the V ridges by re-mortaring it and straightening crooked tiles. As the work progressed, Mr. Gordon seemed happy and indicated the work looked better. At no time did Gordon tell Byer to hurry or to abandon the job. When it was complete, however, Gordon told Byer that though he liked what Byer had done, Respondent would either reimburse him or he'd have his license. In light of his relationship with Gordon, the fact that Gordon has indicated he wants the roof replaced, and Gordon's alleged comment that he'd either be reimbursed or have Respondent's license, Respondent does not believe anything he could do short of replacing the roof, something he will not do, would satisfy Gordon. Other than sending Mr. Byer out to make corrections, he did nothing. It is obvious, however, that the only way to correct the problem of appearance is to remove the tile and start again. Respondent is unwilling to do this. By Final Order dated February 4, 1987, the Construction Industry Licensing Board imposed a fine of 1,000.00 on Respondent for gross negligence and incompetence demonstrated on a roofing job accomplished by him and his firm in 1980 and 1981.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Charles J. Eckert's registration as a roofer be suspended for three months but that the suspension not be implemented and he be placed on probation for a period of one year under such terms and conditions as the Board may prescribe; that he pay an administrative fine of $1,000.00, and that he be reprimanded. RECOMMENDED this 29th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of December, 1989. COPIES FURNISHED: J. Craig Myrick, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles J. Eckert 2515 16th Avenue Drive East Bradenton, Florida 34208 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director CILB Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues to be resolved in this proceeding concern whether the Respondent's license as a certified building contractor should be subjected to disciplinary measures because of the allegations and violations of Section 489.129, Florida Statutes, alleged in the Administrative Complaint and what, if any, penalty is warranted.
Findings Of Fact The Respondent is a certified building contractor, holding License No. CBC016364, authorizing building contracting work in the State of Florida. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulation of the licensure of certified building contractors and regulation of the practice of building contracting in the State of Florida in accordance with Chapter 489, Florida Statutes. The Respondent entered into a building contract with Barbara Clifton for the construction of a new home on or about November 1997. The home is located at 9450 Northwest 133rd Lane, Chiefland, Florida. The contract price agreed upon between the parties for the construction of the home was $68,953.00. During the course of the construction, the Respondent accepted $49,714.75 in construction "draws" from the owner. The Respondent engaged in construction of the home from late 1997, until March 1998. In March 1998, after a number of disputes arose between the Respondent and Ms. Clifton, she terminated the contract and ordered the Respondent to stay off the premises of the project. The Respondent had completed approximately 90 percent of the construction on the home at the time the contract was terminated and he was barred from the job site by the owner. The home contained a number of defects and alleged defects at the time construction ceased. Evidence of some of the defects was established by the testimony of Ms. Clifton, the owner, and especially by that of the Petitioner's expert witness, Mr. Abbott. Testimony and exhibits presented by the Respondent showed that in some instances the defects testified to by Mr. Abbott did not actually exist. The anchor bolts securing the bottom or sole plate to the slab/foundation wall, for instance, were shown to be in compliance with the building code by being three feet apart (on centers). Mr. Abbott had opined that they were 72 inches apart. Also, the photographic exhibits presented by the Respondent showed that the metal anchor straps securing the framing wall studs to the slab and foundation were indeed in place, although Mr. Abbott had opined that they were not. In any event, the testimony and evidence presented through Mr. Abbott as a witness established a number of plan deviations and structural defects in the home. The plan defects were as follows: Garage floor elevation: There was a differential between the finished interior floor level of the house and the garage floor. The plans called for a 16-inch differential. The differential between the two floor levels in the house as built, however, was 48 inches. This deviation was made by the Respondent within ten days after the start of construction. It was because of a significant slope on the lot on the site of the house which necessitated, at the garage site, that the floor be some four feet below the floor level of the interior of the house in order to achieve a level floor without the use of fill dirt. The owner maintains this was done without notice to her and that she had not approved the change in the floor level and was not consulted by the Respondent in this regard. The Respondent maintains that indeed he did explain the problem to the owner and that he offered the solution of "flipping" the garage portion of the house and plan to the other end of the house where less slope would be involved and the floor levels would more nearly approach the plan specifications. Alternatively, he recommended the use of fill dirt to raise the level of the garage floor at the specified location of the garage, to overcome the effect of the slope of the lot at that location. He maintains that the owner refused to approve that approach and that therefore he had no choice but make the garage floor level four feet below that of the interior floor level of the house. In any event, the weight of the evidence shows that the owner and the Respondent did discuss the matter, although they may not have agreed as to the solution. There is, however, no record or evidence of an approved written change order with the owner's assent or any notice to the lending institution of the change from the plan's specifications in this regard. Further, in this connection, the stair systems departed from the plan specifications. The stair system in the garage, of necessity, in order for the occupants of the house to be able to egress through the door opening into the garage, down to the garage floor had to use steps going down four feet. The steps and associated landing, constructed with pressure-treated lumber, extended a significant distance out into the floor area of the garage. This was not called for by the plans either. The garage stair thus obstructed the use of the garage and indeed denied access to housing full-sized vehicles in the garage. The Respondent should have foreseen this problem and at the very least, if the four-foot differential and floor height was necessary (which could have been alleviated by filling), should have re-oriented the stairs so that full-sized vehicles would not be barred from the use of the garage. Additionally, there was a variation in stair height at the entry stair to the house which exceeded code tolerances and constituted a "trip step" which was a safety hazard at the top of the stairs, where they were attached to the landing, where entry and egress to the house were to be effected. The attic stair, which was designed to fold up and down inside the garage evidently was constructed and installed according to specifications. This resulted in the attic stair, when folded down for use, being substantially above the lowered floor of the garage and therefore unusable. The Respondent should have foreseen this defect and taken steps to alleviate and accommodate it given his lowering of the garage floor, which was a departure from the plan specifications on the approved plans. In any event, the Respondent certainly should have had a written change order signed by the owner approving a change in the garage floor level or approving the use of fill dirt to raise the floor level to accommodate the 16-inch differential specified in the approved plans. Neither was done. In fact, it is apparent that although the Respondent and the owner discussed the garage floor level problem, that the Respondent proceeded to lower the garage floor-level before the owner actually had knowledge that the Respondent was going to carry out that approach. Ceiling height: The ceiling height was reduced from the nine feet specified in the plans to eight feet. The exterior eave heights established by specific dimensions in the plans were also reduced. The complainant owner indicates that she was not consulted prior to this change and denied approving it. The Respondent maintains that if he had intended constructing ceilings higher than an eight-foot ceiling, that a ten-foot ceiling dimension would have been employed since framing lumber is cut in standard eight, ten, or twelve-foot lengths and that it would be wasteful to cut ten-foot framing studs to construct a nine-foot ceiling. He maintains that the mention of nine feet for ceiling heights in the plans was an oversight or typographical error and that the parties actually intended eight-foot ceilings from the start of their discussions regarding construction of the house. He stated that the owner had never complained to him of the use of eight-foot ceiling heights. The evidence, thus, does not clearly show that the Respondent departed from the owner's actual wishes in this regard. At the very least, however, the Respondent should have secured an approved written change order and provided notice to the lending institution with regard to this change from the plan specifications. Chimney: The "architectural surround" device for the chimney was not installed. This is both a decorative and protective cover designed to surround the chimney flue and, in addition to being a decorative finish item for the roof of the house, to protect the chimney flue from wind forces which it was not designed to resist. This device should have been installed before the metal roofing was installed but that was not the case. The Respondent was forced to quit the job before the architectural surround device for the chimney had been installed. The Respondent maintains that he was at all times ready and willing to install it, even at his own expense, but the owner would not allow him back on the job site to finish this portion of the work. This left the metal chimney flue standing alone, exposed and not itself properly installed since it could be moved with slight pressure from the fingers of one hand some five to eight inches in deviation from the vertical position that it was supposed to occupy. This incorrect installation of the chimney flue could be a hazard to life or property. If the Respondent had installed the architectural surround for the chimney at the proper time, before the installation of the metal roofing, the chimney installation would have been completed before the Respondent was ordered to leave the job site by the owner. Structural Defects: The "stem wall" or foundation wall was specified in the plans to be three courses of eight- inch block, with a No. 5 steel vertical reinforcing bar embedded in the wall at 48-inch intervals (on centers). The Southern Building Code requires the vertical reinforcing bar to be hooked at the top and bottom where it connects to the concrete footing on the bottom of the stem wall or foundation wall and, on the top, where it hooks into the concrete slab. The code also requires that cells in block walls which contain the vertical reinforcing bars have to be filled solidly with poured concrete. The code also requires a horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab where it joins the top of the stem wall. The stem wall as it was actually built varies from three to six courses of block. The No. 5 vertical steel reinforcing bars were determined to be spaced at 64-inch intervals on center instead of the required 48-inch interval. They were not hooked at the top and it is not clear whether they were hooked at the bottom since Mr. Abbott was unable to view the bottom of the wall because it was already constructed. However, at least one of the cells which was torn into and exposed had a vertical reinforcing rod but was not filled with concrete. This was on a corner of the house where it is perhaps more critical that the reinforcing rod be hooked to attach to the slab and that its cell be filled with poured concrete, which was not done. The required horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab called for by the code was omitted. Exterior frame walls: Mr. Abbott opined that the building official considered SSTD 10-96 "check list" to be part of the permit package. It is more stringent in its requirements and supercedes the plans governing framing and anchorage requirements for exterior frame walls. The construction plans specified 2 x 4 framing for the walls, with metal connectors joining the studs and the bottom of sole plates together, with anchor bolts at six-foot intervals (on centers), securing the petition or exterior frame wall to the floor slab. Additionally, Mr. Abbott contends in his testimony that the "wind load checklist" requires the basic framing and the walls to be 2" x 6" material instead of 2" x 4" material, along with the framing clips where the studs join the top and bottom wood plates of the exterior wall partitions and that anchor bolts be spaced at 48 inches on center in securing that exterior wall partition to the concrete slab. The walls, as built, were made of 2" x 4" stud material with metal framing clips installed joining the members, as well as anchor bolts approximately three feet apart or better than the specifications and the code required. This is shown by the Respondent's testimony, corroborated by his photographs and evidence showing the location of the anchor bolts and the metal framing clips joining the vertical studs in the wall to the sole plate or bottom plate of the wall. Thus, it would appear that the wall complies with the wind load checklist requirements, except that 2" x 4" material instead of 2" x 6" material was used. It is not clear, however, that there is actually a mandatory requirement that 2" x 6" material be used. Apparently, such is not required by the Southern Building Code. Thus, clear and convincing evidence has not been adduced to establish that wind load requirements have not been met by the wall as built. The exterior siding installed on the walls, however, does not comply with the manufacturer's requirements or with the appropriate construction practice. The "hardie board" siding was called for in the specifications but some of the siding is hardie board artificial wood grain siding and some is Abco siding. The two different brands of siding resulted in two different wood grains or textures being used, which does not comply with the specifications and the owner's wishes. Moreover, the siding was installed in some places with the butt joints of two siding boards joining at a location other than over a wall stud, making for a weak improperly supported joint between siding boards. Because of this the nail pattern for the siding was somewhat incorrect as well. Metal Roofing: The metal roofing system employed on the house is Semco 5-V-Crimp manufactured by Southeastern Metals of Jacksonville, Florida. A complete, detailed manual for the product is part of the permit file. Absent specific standards in the building code, the manufacturer specifications govern the installation of the product and establish guidelines for inspection by the local officials. The cursory visual inspection by Mr. Abbott showed that the eave and valley connections and flashings at various penetrations are not as specified in the plans. Mr. Abbott established that the installation technique employed was shoddy and of poor quality, as evidenced by crowned and warped panels, potentially insecure flashing, and ill-fitted twisted crowned caps. Mr. Abbott opined that the sub-standard installation of the metal roof had not been subjected to a proper inspection and that the roof presented a potential danger to the property as constructed. Finally, the chimney construction also represented a structural defect, as well as a deviation from the plans, as described above, and for the same reasons as described in the above findings of fact also constituted a structural defect. The flue could easily be moved by light-hand pressure and was not braced to resist wind loads that might occur. In summary, the Respondent has evidenced a lack of due care and a failure to act in a manner consistent with a reasonable standard of practice in the above-found defective particulars, although, not all the allegations and related opinions of the Petitioner's expert witnesses were established. Moreover, there is no doubt based on the evidence of record, including the Respondent's testimony, that the Levy County Building Department performed the required inspections up until the time work ceased (hence no final inspection) and either missed or ignored certain of the defects which should have been readily apparent, such as the roof. The construction defects resulted in a home that can not, as built, be an entirely safe structure. It was not constructed in conformity with the applicable building codes, to the extent that it was completed before work was ordered stopped by the owner. Although the Respondent freely offered to correct the defects, if allowed to come on the premises to do so, the fact remains that the above- found defects were established and committed. During the course of this dispute, before the formal hearing, a civil action concerning the dispute, was filed by the owner against the Respondent. That action went to a mediation process, the result of which was, in part, that the Respondent agreed to purchase the home from the owner, the complaining witness Ms. Clifton.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a final order be entered by the Construction Industry Licensing Board finding the Respondent guilty of violating the above-referenced statutory provisions in the particulars found above; that the Respondent be required to pay investigative costs for this proceeding and an administrative fine in the amount of $1,500; and that the Respondent be placed on probation for a term to be determined by the Construction Industry Licensing Board. It is also recommended that the Respondent be required to pay restitution to Ms. Clifton for the cost required to repair the above-found defects or, alternatively, that he be required to repair the defects at his own expense, or thirdly, that he purchase the home from Ms. Clifton within 90 days of the entry of a final order herein. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of March, 2002. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Joseph Lander, Esquire Post Office Box 2007 Cross City, Florida 32628 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner, White Rock Quarries (“White Rock”), is entitled to an award of attorney’s fees to be paid by Respondents, Dorothy Brown-Alfaro and Amilcar Alfaro (“Respondents” or “Ms. Alfaro”), pursuant to section 57.105, Florida Statutes, and an award of attorney’s fees and taxable costs to be paid by Respondents pursuant to section 552.40(9), Florida Statutes; and, if so, the amount of attorney’s fees and taxable costs to which White Rock is entitled.
Findings Of Fact White Rock engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, White Rock utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondents reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Respondents are the third owners of the home, which was built in 1981. Respondents have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. The subject quarries are located within various geographic areas identified by different sections in close proximity to Respondents’ home. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Respondents’ home. Section 6 is approximately 2.3 or 2.4 miles from Respondents’ home. Section 4/5 is approximately 1.6 miles from Respondents’ home.1/ In the underlying case, Respondents asserted that White Rock’s quarrying activities caused damages to their home. Respondents alleged damages centered on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is undisputed that cracks exist throughout Respondents’ home and that Respondents’ home is damaged because of the cracks. However, the issues to be determined in the underlying proceeding were whether the cracks were caused by White Rock’s blasting activities, and, if so, the amount Respondents should be compensated for the damages. Section 552.40(1) provides, in pertinent part, that: A person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction mining materials mining activities by filing a petition with the Division of Administrative Hearings by electronic means through the division’s website on a form provided by it . . . . Pursuant to section 552.40(2)(c) and (d), the petition must include: The approximate time, date, and place of the use of explosives which is alleged to have resulted in damage to the petitioner; and A description of the damage caused and the amount sought for recovery. On December 14, 2015, Respondents’ former counsel filed an Amended Petition Under the Florida Construction Materials Mining Activities Administrative Recovery Act. In the amended petition prepared and filed by Respondents’ former counsel pursuant to sections 552.40(1) and (2), Respondents claimed they were entitled to the following items of damages caused by White Rock’s blasting activities: Floor ($24,000) Foundation ($100,000) Walls ($50,000) Ceiling ($20,000) Patio ($50,000) Driveway ($75,000) Windows ($45,000)2/ The final hearing in the underlying proceeding lasted two days. At that hearing, Respondent Dorothy Brown-Alfaro (who appeared pro se at the final hearing), presented photographs and a home inspection report showing cracks throughout the home. She described new, worsening, and expanding cracks throughout the home resulting from White Rock’s blasting activities. In addition, Ms. Alfaro submitted into evidence a blasting log, which documented the date, time, and intensity of White Rock’s ongoing blasting activities since 1999 Respondents claimed they felt at their home. The blasting log was also an exhibit to Respondents’ amended petition. At the hearing, Ms. Alfaro testified to White Rock’s frequent blasting and the effects on her home from the blasts. According to Ms. Alfaro, when White Rock’s blasting activities occur, the house “sways,” “everything shakes,” and “the entire structure of my house moves.” According to Ms. Alfaro, “when it shakes, my ceiling, my roof, my walls, my floor, everything shakes.” She testified that items fall off the shelves and she described the feeling from the blasts as a “vibration similar to an earthquake.” Ms. Alfaro presented the additional testimony of Barbara Hagan, Paul Ingelmo, and Ismailia Rashid. Mr. Ingelmo is a structural engineer who performed a visual inspection of Respondents’ residence. Ms. Rashid is a general and roofing contractor. Neither Mr. Ingelmo, Ms. Rashid, nor Ms. Hagan could opine that the damages to Respondents’ home were caused by White Rock’s blasting activities. Ms. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Ms. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. The undersigned found Ms. Alfaro’s testimony regarding the purported cause of the cracks not to be credited or persuasive. Ms. Alfaro regularly provides construction estimates in her business. Ms. Alfaro testified that the damages she requested in the amended petition were based upon her estimate of the repair costs she would incur to correct the damages caused by White Rock’s blasting activities. She testified, without objection, that she obtained material costs and calculated the amount of materials needed (i.e. per cubic yard of concrete and drywall) and labor to complete the repairs. In response to the evidence presented by Ms. Alfaro at the hearing, White Rock presented the testimony of Jeffrey A. Straw, a seismologist; David L. Teasdale, a civil structural engineer; and Michael Schraeger, a general contractor and building inspector. As a seismologist, Mr. Straw was responsible for monitoring the impacts and vibration from White Rock’s blasting activities and analyzing their effects on structures. At the hearing, he described the concept of peak particle velocity (“PPV”), the speed at which a particle of ground oscillates as the vibration wave moves through the ground following a blast. Mr. Straw testified that according to seismographs located within the vicinity of Respondents’ home, at no time have any of White Rock’s blasting activities reached or exceeded the PPV limit of 0.5 inch per second established by the state of Florida. Mr. Straw also visited Respondents’ home twice: in April 2006 and January 2016. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Respondents. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Respondents’ home and driveway. Mr. Straw also testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.3/ While at Respondents’ home in January 2016, Mr. Straw experienced the effects of a blast. He described it as “[r]elatively minor based on blasts that I felt,” and indicated the blast lasted about three to five seconds at most. However, Mr. Straw further testified that he could feel the impact of the blast under his feet, and he could hear it, “there was some general vibration of the structure,” and some “dish rattling.” Mr. Teasdale is extensively familiar with seismographs and has extensive experience installing and using them. At the hearing, he was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at Respondents’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale explained the substantial differences between an earthquake and quarry blasting. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. According to Mr. Teasdale, distortion occurs where the foundation of a structure is accelerated laterally and causes the under part of the building to lag in response, which causes the building to shift back and forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale testified there was no damage to the foundation of Respondents’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Respondents’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Based on his review and analysis of Respondents’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Respondents’ home. Mr. Schraeger has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. At the hearing, Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Respondents’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in the home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Respondents’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. He opined there was no evidence of foundation damage. Mr. Schraeger further testified that in his professional opinion, some of the cracks in Respondents’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of the home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Respondents. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At the hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, he opined that all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. According to Mr. Schraeger, the crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods. At the hearing, Mr. Schraeger disputed Ms. Alfaro’s cost of repair testimony. However, Mr. Schraeger was not asked to give an expert opinion regarding the amount of damages, and he provided only “ballpark” or “rough” estimates of the cost of repair. For example, Mr. Schraeger testified that the cost to repair the flooring would be “approximately $11,000.”4/ As to the foundation, he estimated the cost to be $0.00 because he found no damage. As to the walls, Mr. Schraeger estimated a figure of $16,000. As to the ceiling, Mr. Schraeger estimated a figure of $5,000. As to the patio, Mr. Schraeger estimated a figure “well within the high end of six thousand.” As to the driveway, Mr. Schraeger estimated a range between “roughly” $17,000 and $20,000--the high end of the range resulting from “material fluctuation” construction costs. As to the windows, Mr. Schraeger estimated $12,000. Clearly, Mr. Schraeger acknowledged there are actual damages throughout much of the home, and there are actual costs associated with the repair of the damages. That the parties disagreed as to the amount of damages as to each item of alleged damages does not mean that the amount of damages claimed was unsupported by the material facts necessary to establish the claim. In sum, based on the evidence adduced at the hearing, the undersigned found that Respondents failed to prove by a preponderance of the evidence that the damages to their home were caused by White Rock’s blasting activities. Rather, the preponderance of the evidence presented at hearing established that the damages to Respondents’ home were not caused by White Rock’s blasting activities. In reaching this conclusion, the undersigned credited and found persuasive the testimony of Mr. Straw, Mr. Teasdale, and Mr. Schraeger. Although the undersigned was not persuaded in the underlying case by the evidence presented by Respondents, this does not mean that Respondents’ claims were not supported by the material facts necessary to establish the claims. There was competent, substantial evidence introduced by Respondents at hearing showing that: (1) Respondents’ home was in close proximity to White Rock’s frequent blasting activities; (2) when the blasting occurs, the house “sways,” “everything shakes,” “the entire structure of [the] house moves,” items fall off the shelf, and Ms. Alfaro feels a vibration similar to an earthquake; and (3) there are cracks throughout the home--some of the cracks are new, worsening, and have expanded as a result of White Rock’s frequent blasting activities. White Rock is the prevailing party in Dorothy Brown- Alfaro and Amilcar Alfaro v. White Rock Quarries, DOAH Case No. 15-6014CM. However, White Rock has failed to establish it is entitled to an award of attorneys’ fees pursuant to sections 57.105 and 552.40(9). On page 16 of its proposed final order, White Rock also claims it is entitled to recover taxable costs under section 552.40(9), totaling $9,287, as the prevailing party in the underlying case. The amount of taxable costs claimed is based on Exhibits 12A through 12G. In Respondents’ Proposed Final Order, Respondents do not dispute that White Rock is entitled to “recover costs totaling $9,287.15 (all the costs claimed except for the cost of lunches totaling $62.65) as costs reasonably necessary to defend the claims asserted in the underlying case.” The undersigned has examined White Rock’s Exhibits 12A through 12G, which constitute the universe of taxable costs sought, and the total of the costs is $9,287. There is no cost of lunches included within Exhibits 12A through 12G. All of the costs identified in Exhibits 12A through 12G are taxable costs or incidental administrative costs directly associated with the case, and therefore, are recoverable under section 552.40.
Findings Of Fact At all pertinent times, respondent John G. Wood was a registered real estate broker and a registered general contractor; and respondent Bruno Pais was one of approximately 15 registered real estate salesmen employed by respondent Wood, trading as Wood Realty. At the time of the hearing, approximately 125 people were employed in respondent Wood's construction business, which had built some 3,000 houses. John Wood and Associates, respondent Wood's construction firm, built a house at 903 Wakulla Drive in Winter Haven, Florida, on what had previously been a citrus grove. The house sits on a corner lot and adjoins a heavily travelled state road. In 1975, after the house had been built, respondent Wood learned that the ground underneath the patio near a glass door at the rear of the house had settled. He directed a construction superintendent to reinforce the footing underneath the house and to replace the patio. This repair proved ineffectual, however. In the summer of 1976, respondent Wood engaged Ivan Dewitt King, Jr., a civil engineer and land surveyor with some 30 years' experience, to evaluate the house at 903 Wakulla Drive and to advise what should be done to repair the house. Mr. King examined the foundation and dug several test holes. He found that the foundation had deflected downward one-quarter to one-half inch and that the soil was softer where the deflection had occurred than elsewhere. Although the foundation had bowed, it had not cracked. There was no sinkhole in the area. The softness of the soil might have been the result of a tree's having been uprooted. Mr. King recommended excavating under the existing foundation, pouring concrete to make a new, broader footing underneath the then-existing footing and, after the new footing had cured, placing jacks on it to jack up the original footing and hold it there until the space between the old and new footings was filled with concrete. Mr. King suggested a "twenty- four inch footer to go underneath the existing one, (T.56) and advised respondent Wood that taking these steps would solve the problem. In August of 1976, at respondent Wood's instance, Jeffrey N. Riner, who had been in the foundation and concrete business for some ten years, went in and dug out. . below the foundation and put like a three or four foot wide by about fifteen foot long solid concrete pad with steel across both ways coming up and out of it, and then. . took jacks, like twenty- ton jacks, and jacked the foundation and. jacked. . the slab back. . as close as possible to its original. . place, and then poured the concrete back underneath in between this foundation and the original foundation. (T. 65). Mr. Riner testified that, in his opinion, "that part of the house will never go anywhere." (T.65) After this second repair, respondent Wood observed the house and observed "no structural problems" (T.42) "other than minor cracks in the masonry and expansion cracks." (T.41) Originally, respondent Wood had sold this house to Fred Crabill. Shortly before the second repair, respondent Wood took the house back as partial payment for another house he sold Fred Crabill. Some six months after the repair, on February 17, 1977, James D. and Erma C. Anderson signed an agreement to purchase the house. Driving by, Mr. Anderson had noticed the house and had thought about buying it, but decided to do so only after respondent Pais showed him the house. Respondent Pais was aware of the condition of the soil, that the foundation had deflected, and that repairs had been done. He had been given to understand that there was no longer any structural problem with the house. Mr. Anderson asked respondent Pais if there were anything wrong with the house, and respondent Pais assured him that there was nothing wrong. When he first inspected the house, Mr. Anderson observed that the house was dirty, but noticed no other problems. After the Andersons moved in, they found that the bath tub did not drain properly. The drainage problem was not caused by settling of the house or deflection of the foundation, and was known to neither respondent until after the Andersons vacated the premises. After Mr. Anderson removed some sliding glass doors for cleaning, be had difficulty opening and closing the doors. The Andersons began noticing hairline cracks in a rear wall, two or three of which grew over time to be about one-quarter inch wide at their widest points. These cracks reflected minor setting of the soil underneath the house, attributable to vibration caused by nearby traffic. (T.43) The Andersons never made a down payment on the house. Under their agreement with respondents, the sale was to be closed on or before April 3, 1977, with the Andersons making mortgage payments until the closing. The closing was postponed while the Andersons tried to sell other real property so as to be able to apply the proceeds to the house on Wakulla Drive. In September of 1977, respondents threatened to evict the Andersons unless they closed the transaction. On September 11, 1977, the Andersons, who had learned by then of the repairs previously done to the house, and who were worried about the cracks they had seen, moved out. Thereafter, a complaint was filed with petitioner. In November of 1977, respondents caused some re- grouting to be done to repair cracks in the mortar first observed by the Andersons on a rear wall of the house. Subsequently, Lane A. Bohannon took the house in trade for other property. He knew that the foundation had been repaired at the time. Mr. Bohannon, who rents the house, was unaware of any problems with the house's settling or with the operation of the sliding glass doors during the approximately eight months that he had owned the house.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint as against John G. Wood. That petitioner suspend Bruno Pais' registration as a real estate salesman for thirty (30) days. DONE and ENTERED this 26th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stephen Baker, Esquire and John Wood, Jr., Esquire Suite 2, 200 Avenue K, Southeast Winter Haven, Florida 33880
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: During times material hereto, Respondent was a certified residential contractor having been issued license number CR C018874 since 1981. Respondent, during late 1986, was approached by a Mr. Marlar, owner of Pinellas Builders, who requested that Respondent affiliate with Pinellas Builders using his licensure to qualify Pinellas. Respondent tentatively agreed to a business arrangement with Marlar, however, prior to the time that Respondent formally qualified Pinellas, the negotiations broke down and Respondent never formally qualified Pinellas. During January, 1987, Pinellas entered into a contract with a customer, John Kane of Clearwater, Florida, to build an addition to Mr. Kane's residence for a sum of $33,000. (Petitioner's Exhibit 1.) Pinellas was required to obtain a permit to construct the addition to Kane's residence. Pinellas obtained the permit and utilized Respondent's license to do so. Kane encountered difficulty with Pinellas as the subcontractors were not paid and liens and/or notices of intent to file liens were placed on his home. Mr. Kane ultimately had to rehire the subcontractors and pay them directly resulting in an additional expenditure by Kane of approximately $10,000 over and above the amount that Pinellas agreed to complete the addition to his home. During June of 1987, Kane filed a complaint with Petitioner and in connection therewith, Petitioner's investigator, H. Dennis Force, spoke to Respondent via telephone respecting the fact that permits were being pulled under his name. Respondent was unaware that Pinellas was utilizing his name as a qualifier to obtain permits nor was Respondent aware that Pinellas had obtained contracts to perform work utilizing his name as the licensing authority. As a result of Investigator Force's conversations with Respondent, Respondent revoked the letter of authorization given to Marlar during April, 1987. Respondent distributed copies of the revocation of authorization given to Marlar to the various local cities in the surrounding area. Respondent acknowledges his liability as a qualifier and accepts that responsibility. Respondent is not presently affiliated with any corporate entity in that he prefers to work as an individual such that he can insure the quality which he strives for comes to reality. Mr. Kane acknowledges that he never saw Respondent on the jobsite and had never met him during any of the negotiations with Marlar (Pinellas). Respondent received no monies from Kane or any other persons who had entered dealings with Pinellas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a civil penalty of $500 payable to Petitioner within thirty (30) days and issuing a written letter of reprimand to Respondent based on his authorization of an unlicensed person to use his name to obtain permits. 1/ DONE and ENTERED this 7th day of April, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989.
The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
The Issue The issues in this case are whether Respondent, August T. Nocella, committed the violations alleged in the Administrative Complaint and, if so, what discipline is appropriate.
Findings Of Fact Petitioner, the Pinellas County Construction Licensing Board (Board), is the agency within Pinellas County, Florida, authorized under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the licenses of, among others, certified aluminum contractors. Respondent, August T. Nocella (Respondent), is, and has been at all times material hereto, a certified aluminum contractor in Pinellas County, Florida, having been issued license C-3197. At times relevant to this proceeding, Respondent was doing business as Allied Aluminum, located in St. Petersburg, Florida. In 1997, Ms. Mary J. Pugh had a small screened porch added to her house located at 12855 Gorda Circle West. Approximately two years later, in July 1999, the porch was damaged or destroyed by a storm. Thereafter, Ms. Pugh requested and received a proposal from Allied Aluminum to repair or rebuild the screened porch. On September 1, 1999, Respondent entered into a contract with Ms. Pugh to repair or reconstruct the previously existing screened porch. The contract provided that Respondent would install a new aluminum roof to replace the damaged existing screened porch roof, install gutters and trim, replace 13 feet of valance, replace the screen, and install a new wall front. The contract noted that a riser wall was required for "proper roof pitch." The contract price was $2,300.00, with $1,000.00 to be paid as a down payment and the remaining $1,300.00 to be paid upon completion of the project. Ms. Pugh paid Allied Aluminum in accordance with the terms of the contract. She made the first payment of $1,000.00 on September 1, 1999, and made the final payment of $1,300.00 on September 22, 1999, upon Respondent's completing the job. On or about September 16, 1999, Respondent obtained a permit for the repair or reconstruction of the screened porch at Ms. Pugh's house. Respondent began the project on or about September 15, 1999, and completed the job on September 22, 1999. Section 105.6 of the Standard Building Code, 1997 Edition, as amended,(Standard Building Code) requires local building officials, "upon notification from the permit holder or his agent," to make a final inspection of a building after the building is completed and ready for occupancy. In order to comply with the Standard Building Code, it was the responsibility of the permit holder, in this case, Respondent, to call local officials for a final building inspection. Upon completion of the inspection, a building official would then notify the permit holder of "any violations which must be corrected in order to comply with the technical codes." Respondent failed to notify building officials that the Pugh project was completed and ready for occupancy and, thus, ready for final inspection by appropriate building officials. As a result of Respondent's failure to call for a final inspection, building officials never inspected Respondent's work on Ms. Pugh's screened porch and made no determination as to whether the project complied with the applicable technical codes. In July 2000, during a storm, the roof of Ms. Pugh's screen porch collapsed. Relying on statements of unnamed contractors, Ms. Pugh believes that the roof collapsed because it did not have the proper pitch. Respondent attributes the collapse of the roof to the gutters being blocked with leaves. Despite these assertions no evidence was presented at hearing to establish the cause of the roof's collapsing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order: (1) finding that Respondent failed to obtain a satisfactory inspection as alleged in Count One, and is guilty of the offenses described in Chapter 89-504, Subsections 24, (2)(d), (j), and (n), Laws of Florida; (2) imposing an administrative fine of $1,000.00 for the foregoing offenses; and (3) dismissing Count Two of the Administrative Complaint. DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of December, 2001. COPIES FURNISHED: Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 August T. Nocella 1017 Robinson Drive, North St. Petersburg, Florida 33710
