The Issue Whether one or more of the following penalties should be imposed on Sylvia Allen: revocation or suspension of Ms., Allen's practice, imposition of an administrative fine and/or any other relief that the Petitioner deems appropriate?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against registered roofing contractors in the State of Florida. Sylvia V. Allen is, and has been at all times material hereto, licensed as a registered roofing contractor in the State of Florida. Ms. Allen holds State of Florida license number RC 0046666. Ms. Allen was at all times material hereto the qualifying agent and the President of Lakemont Construction, Inc. of Park 20 West, 1250 Blountstown Highway, 1236-C, Tallahassee, Florida. In early 1987, Ms. Allen submitted a bid to the Department of General Services (hereinafter referred to as the "Department") for the reroofing and waterproofing of the National Guard Armory building (hereinafter referred to as the "Armory") located in Winter Haven, Florida. The bid submitted by Ms. Allen was for $96,536.00. The Department accepted the bid submitted by Ms. Allen and entered into a contract with her on March 31, 1987. Because the contract price was less than $100,000.00, no bond was required to be posted. On April 20, 1987, a notice to proceed/mobilize was issued by the Department to Ms. Allen. On or about April 29, 1987, Ms. Allen mobilized. Work on the project began on May 11, 1987. The first work performed on the project pursuant to the schedule of work to be performed was the removal of the existing roof and the placement of a temporary roof on the Armory. On May 20, 1987, Ms. Allen submitted a pay request to the architect for the project, Mr. Shafer. This request was forwarded to Thomas Berley, a project director for the Department. Mr. Berley received the request on May 26, 1987. Upon receipt of the request, Mr. Berley notified Mr. Shafer that Ms. Allen needed to provide the Department with a bar chart showing work progress on the project before the pay request could be processed. Efforts were then begun to try to locate Ms. Allen to inform her of this requirement. Mr. Berley was informed by Mr. Shafer that Ms. Allen could not be located. Therefore, Mr. Berley telephoned Ms. Allen's place of business in Tallahassee. Her telephone had been disconnected. Mr. Berley instructed another project director of the Department located in Tallahassee to go the Respondent's office. Mr. Berley was advised that no one was at the office. Ms. Allen's subcontractors were contacted in an effort to reach Ms. Allen. Mr. Berley was informed that the subcontractors could not locate Ms. Allen either and that no contact had been made by them with Ms. Allen since May 26, 1987. Mr. Berley received a copy of a June 2, 1987, letter from Mr. Shafer to Ms. Allen requesting that she contact him. On June 4, 1987, Mr. Berley sent a letter to Ms. Allen advising her of obligations and giving her seven days to indicate why she was not on the job. This letter was sent certified mail and was signed for on June 11, 1987. Work on the project stopped during early June, 1987. A third and final letter seeking to contact Ms. Allen was sent to Ms. Allen but was returned unopened. Because of the failure of Ms. Allen to contact the Department or the project's architect and because of concerns about the ability of the temporary roof to prevent water damage, the contract for reroofing the Armory was terminated at midnight, June 14, 1987. The concerns about the ability of the temporary roof to prevent water damage to the Armory were legitimate concerns. A temporary roof is only intended to keep water out for a short period of time. Work on the project should not have been stopped while the temporary roof was on the Armory. Failure to pay the pay request would not justify Ms. Allen's actions. On June 16, 1987, Ms. Allen contacted Mr. Berley by telephone. Mr. Berley notified Ms. Allen that the Armory contract had been terminated. On June 19, 1987, the Department received a proposal to finish the project using Ms. Allen's subcontractors. The cost of completing the project was $8,000.00-$9,000.00 more than Ms. Allen's bid price. Leaving a temporary roof on the Armory for three weeks was excessive. Once work began on this project, the work should have proceeded continuously until the new roof had been completed. While the temporary roof was on the Armory excessive damage could have occurred resulting in structural damage as well as cosmetic damage. Ms. Allen's actions constituted abandonment of the job. Ms. Allen's actions also constituted incompetence in the practice of contracting. Ms. Allen has previously been issued a letter of guidance from the Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Sylvia V. Allen be found guilty of having violated Sections 489.129(1)(k) and (m) , Florida Statutes. It is further RECOMMENDED that Ms. Allen be required to pay an administrative fine of $2,500.00 to the Petitioner. DONE and ENTERED this 1st day of December, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 1st day of December, 1988. APPENDIX Case Number 88-1997 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 3. 4 4 and 6-7. 5 8-9. 6 10. 7 11. 8 Hereby accepted. 9 12-13. 10 14. 11 15. 12-13 16. 14 6. 15 17. 16 19. 17-18 20. 19 18. 20 19. 21 21. 22 22. 23-24 23. 25 24. 26 Irrelevant. 27 25. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Sylvia V. Allen 110 Dixie Drive, D2 Tallahassee, Florida 32304 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact David Howard was initially paid on a piece work basis, $6.50 per hour. David Howard worked a total of 240 hours. Subsequently, David Howard asserted a claim for wages as a carpenter at approximately $8.54 per hour. Having been advised of the claim, REB, Inc. paid David Howard a corrected wage of $7.34 per hour as a lather, and issued a check to David Howard for the difference between $6.50 per hour and $7.34 per hour. This difference was paid in a lump sum. David Howard installed drywall at all times on the project to construct a municipal building in Tampa, Florida. Persons who install drywall are classed as both lathers and carpenters. A great deal of controversy exists concerning with which trade, carpentry or plastering, it should be associated. REB, Inc. is a subcontractor specializing in the installation of various wall units. The company did not hire any employees as carpenters but only as labors and lathers.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the claim of David Howard be denied. Further, the Hearing Officer recommends that the Department of Commerce have prepared some form of pamphlet which outlines to claimants what they must prove if their case goes to a full hearing, and suggests to the claimant ways in which they can prove these essential allegations thereby permitting the Hearing Officer to make a determination of the case upon its merits. DONE AND ORDERED this 13th day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. David Howard 8422 North Hamner Tampa, Florida 33604 Luther J. Moore, Esquire Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Edwin D. Peck, Esquire 3637 4th Street, North Room 220 St. Petersburg, Florida 33704
Findings Of Fact The certified general contractors examination given on February 23-24, 1993, consisted of two parts. Petitioner received a score of 71 on the first part and a score of 67 on the second part. The minimum score required to pass each part is 70. Petitioner challenged question 5 in the second part. The question related to the "angle of repose". The term "angle of repose" has been used for a number of years in the field of construction. The angle of repose is used when calculating the stability of soils for purposes of excavation. Petitioner chose answer "B" to question 5. The correct answer to question 5 is answer "D", i.e., 5 feet 6 inches. The testimony of Respondent's expert witness was credible and persuasive. Petitioner also challenged question 9 relating to the extra square feet needed for fire resistant partition walls. The problem required calculating the linear feet first and then multiplying by the height of the walls after subtracting for slab thickness. The examination was open book. Petitioner was permitted to refer to the Standard Building Code. The correct answer to question 9 was "B". Petitioner chose answer "D". The testimony of Respondent's expert witness was credible and persuasive. Petitioner challenged question 10 which required a calculation of the time to lay interior masonry walls. The correct answer to question 10 was "A". Petitioner chose answer "C". The testimony of Respondent's expert witness was credible and persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to his score of 67 on the general contractors examination given on February 23-24, 1993. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of December, 1993. DANIEL MANRY 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 2nd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3938 Respondent submitted proposed findings of fact. It is noted below which proposed findings of fact were accepted and the paragraph number(s) in the Recommended Order where they were accepted, if any. Those proposed findings of fact which were rejected and the reason for their rejection are also noted below. No notation is made for unnumbered paragraphs. The Respondent's Proposed Findings of Fact Respondent's paragraphs 2-3 are rejected as irrelevant and immaterial. Respondent's remaining proposed findings of fact are accepted in substance. COPIES FURNISHED: Daniel O'Brien, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Asst. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Behzad Khazaree 142 Tollgate Trail Longwood, Florida 32750
Findings Of Fact The Respondent, David R. Oldham, is a registered architect in the State of Florida, holding license no. 5786. The original date of his registration is August 31, 1972. The Respondent's license is presently in a probationary status. He is a self-employed architect. The Petitioner is an agency of the State of Florida charged with regulating the practice and the practice standards of architecture and architects in Florida, pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 481, Florida Statutes. COUNTS I & II Pursuant to a written contract entered into July 10, 1980, and signed on July 14, 1980, the Respondent agreed to provide architectural services to one "William D. Buck or "Bill Buck" for additions and alterations to his automobile dealership known as Bill Buck Chevrolet, Inc., located at 2324 South Tamiami Trail, Venice, Florida. The contract provided for the preparation of various plans and construction documents preparatory to construction of a new service building of approximately 5,000 square feet area, with additions and alterations to the existing office area of approximately 800 square feet, and the relocation of an existing inspection facility to provide for two entrance and exit lanes to automotive service-bays. The contract called for two service stalls to be depicted in each of four service-bays in the new building for a total of eight service stalls. A roof was to span across the driveway connecting the existing structure with the new service building to be constructed pursuant to the plans. The contract required Respondent to prepare a site plan, floor plans, elevations and necessary sections, details and schedules in order to permit the owner, Bill Buck, to invite bids and construct the project. The Respondent undertook to provide a set of plans from which he and his contractor could build the entire project. The Respondent prepared the plans for Mr. Buck and they were given to contractor David Malcolmson. Mr. Malcolmson suggested that the building be changed from a metal building to a concrete block structure because it could be built cheaper and faster. Mr. Buck agreed to that change and the Respondent made changes to his drawings to indicate that the type of construction had shifted from metal to masonry. The new building was ultimately constructed as a single story structure consisting of a poured concrete monolithic floor slab- footing, with filled masonry concrete block walls and a prestressed concrete slab roof. The Respondent prepared and issued a nine sheet set of plans, dated December 22, 1980, for the additions and alterations to the Chevrolet dealership. All nine sheets in this set of plans were signed and sealed by Respondent and ultimately filed with the Sarasota County Building Department. These plans are known hereinafter as the "permit set." On December 23, 1980, the contractor applied for a building permit, and on January 12, 1981, the building department issued the permit authorizing construction in accordance with the permit set of plans, signed, sealed and prepared by Respondent. The permit set of plans contained the entire specifications for the project, and the entire specifications filed with that building department. During construction, Mr. Buck himself, became concerned about the integrity of the foundation of the building. He questioned his contractor, Mr. Malcolmson, about the strength of the foundation since he knew that the type of construction had changed from metal to the prestressed concrete and concrete block structure having a substantially greater weight. At or near the completion of the construction, various cracks were observed in the walls and floors which caused a great deal of concern to Mr. Buck. He requested an inspection from the building department, and the building inspector became concerned upon seeing the cracks and asked the contractor to have an expert investigate and determine whether a serious structural problem existed. Thus, prior to issuance of a certificate of occupancy by the building department, the contractor hired Ardaman and Associates, Inc. (Ardaman), a firm of consulting engineers, to test the foundation. On June 1, 1981, Ardaman inspected the wall and foundation system of the new building and issued a report to the contractor in the form of a letter. (See Petitioner's Exhibit 16) Ardaman had discovered a crack in the floor slab running parallel to the north wall about three feet away from that wall extending the entire length of the building. The crack was found by Ardaman to be a "stress-relief" crack caused by settlement of the monolithic foundation. The foundation was loaded and tension stress was transmitted to the top of the slab causing a tension failure (crack) in the concrete slab. Ardaman's test revealed that the soil under the wall and foundation had a bearing capacity of 3,000 pounds per square foot. The plans themselves had envisioned a 2,000 pound per square foot allowable soilbearing load. Indeed, the soil pressure compression was ultimately 5,285 pounds per square foot actual load from the weight of the building. Ardaman additionally noted two vertical cracks in that wall attributed to temperature changes. Ardaman thus recommended packing concrete under the existing foundation to prevent undermining or eroding of the soil under the foundation, since the foundation was actually above grade. The existing foundation supporting the north wall was only a half-inch from the adjacent property line, and was above the adjacent grade by 3 to 12 inches. This is a potentially serious condition since it allows erosion of the soil under the foundation and undermining and a resulting collapse of the wall could occur. The building official from the county recommended that the contractor excavate and then backfill the excavation under the foundation with concrete to bring the lower edge of the footing down below grade level to take care of possible erosion problems. Erosion could remove some of the bearing soil from under the foundation. With that recommendation, on July 14, 1981, the building department issued a certificate of occupancy. On August 26, 1981, at the request of the building contractor, Ardaman made an additional inspection of the facility. On August 27, Ardaman informed the contractor and the building department that no new conditions were observed at the site, but described for the first time the rotation of the footing which could cause concomitant rotation of the wall (leaning). Ardaman measured the movement of the foundation system and found that the footing had rotated or tilted approximately three-fourths of an inch to one inch at the point of the wall's contact with the footing. This could cause rotation of the wall which would decrease the bearing area of the prestressed roof slabs or beams bearing and supported by the top of the wall. On November 4, 1981, the building department notified the contractor of its concern that the problem with the service building had not yet been resolved. The building department was concerned that because of footing or wall rotation, a loss of roof slab bearing area might have occurred and that necessary correction should be made. Because these corrections had not yet been made, the building department recommended that occupancy be discontinued until corrections could be made to the structure. On December 15, Ardaman urged the contractor to complete the following items of remedial work: To underpin portions of the foundation, originally constructed below grade, to increase the safety factor and to comply with the Southern Standard Building Code minimum cover requirement; To retain a professional engineer to design an auxiliary bearing system that would prohibit significant wall rotation, as the wall had already rotated .085 inches in 8.0 feet; and To fill floor cracks and wall cracks. Ardaman's recommendations and findings of deficiencies regarding the structure were put in a letter filed with the building department and entered into evidence as Petitioner's Exhibit 19, corroborated by testimony of the building official, Mr. Light. It was thus established that the design of the addition to Bill Buck Chevrolet, Inc., did not comply with appropriate building code requirements related to foundation and upgrade. On approximately February 4, 1982, the attorney for Bill Buck retained Mr. William Snell, P.E., a consulting engineer. Mr. Snell was retained to review the project to determine if serious problems existed in the design or construction. Vertical cracks were observed in the north wall on both the inside and outside surfaces. Several feet inside the building a long crack parallel to the north wall had developed in the four-inch concrete floor slab. By this time, Ardaman's recommendation to pack concrete under the north footing to prevent erosion, had already been performed. The building department still had reservations about the integrity of the building. Recent measurements for instance had revealed that the north wall was leaning three-eighths of an inch north at the ceiling line. Mr. Snell reviewed a blueprint copy of Respondent's permit set of plans. This permit set of plans contains nine sheets (eight architectural and structural sheets and one electrical sheet). They contained no topographic survey and no building elevations are depicted. Mr. Snell's written opinions regarding the project are contained in his letter of February 15, 1982, in evidence as Petitioner's Exhibit 20 and his letter of February 17, 1982, to the building official, in evidence as Petitioner's Exhibit 21. Additionally, Mr. Snell was accepted and testified as an expert witness in structural engineering at the hearing. Mr. Snell described the project as consisting of the new service building which abuts the adjacent common property line on the west side of the property on which the building was built. The west wall of the service building is one-half inch from that property line. The building contains a series of service-bays containing a total of eight maintenance stalls next to that common property line. The building also has waiting rooms and office space. Between the original existing Bill Buck Chevrolet building and the new service building addition is a drive-through structure for cars which consists of a paved drive covered by a roof made of prestressed concrete "double-t's". One of the problems extant on the face of the plans is that they contain a number of details left over from the original steel building design before it was decided to change to a masonry structure. Changing from the steel to masonry construction added considerable weight to the structure because a precast concrete roof deck is considerably heavier than a metal building roof deck as are masonry walls compared to sheet steel walls and steel columns, etc. The change from steel to masonry as the construction mode is significant in at least two ways: First, the change created confusion in understanding tie plans. Some steel details in the plans have been voided yet others are still on the plans creating an apparent inconsistency. For instance, Sheet 2 shows steel columns and overhead framing lines, "H sections" and pipe columns, all steel components used for metal building construction. Sheet 8 still shows some walls as "non- block." Other sheets, however, such as Sheets 4 and 5, indicate only masonry for the walls. Sheet 8 indicates some steel details explicitly voided, yet others, as on Sheet 2, are only partially erased so that "ghost images" or vestiges of the "steel plan" remain. Further confusion is shown by the inconsistency between the "ghost images" on Sheets 2 and 8 which show the "H" columns and pipe columns on Sheet 2 reversed on Sheet 8. The Respondent obviously was not conscious of the impact of the change from the steel to masonry mode throughout the set of drawings. Secondly, the change from steel to masonry is significant because the additional weight was not adequately provided for structurally. Some of the structural supports for a steel building were erased, yet the remaining thickened edge floor slab was not redesigned to provide an adequate foundation for masonry. In essence, the foundation is inadequate with the great weight of the masonry construction placed on top of it. In reality, the mere thickened edge on the floor slab does not constitute an adequate footing or foundation, based on Mr. Snell's analysis of the downward loads on the foundation. The footings were eccentrically loaded by being on the edge of the foundation instead of centered. The forces exceed both the 2,000 pounds per square foot allowable soil bearing pressure that is depicted on Sheet 8 of the plans, and the 3,000 pounds per square foot that the Ardaman firm reports as acceptable soil pressure. The soil pressure compression found by Mr. Snell was 5,285 pounds per square foot. Thus, the footings were shown to be considerably overloaded, causing the thin four-inch floor slab to crack, and then to rotate, carrying the wall in rotation with it when soil eroded out from underneath it due to the footing being installed originally above grade level. The building was dangerously overstressed as designed, and should have been dismantled or strengthened by placing new footings and piers under supporting steel beams to take the roof load off the overloaded, common property line wall. Additionally, the plans depicted no "book" specifications and made no note of the proper concrete strength to be used nor the degree of compaction of soil required. They depicted no design loads for the roof, floor, nor for wind. No roof framing plans were provided and the Respondent did not adequately depict the roof span over the driveway and failed to exercise due care in drafting the roof span. The Respondent never developed a "so-called Section E-E" referred to on Sheet 3 of the plans. Nowhere in the plans were any support beams over the service stall doors shown and no reinforcement for this area was depicted. No reinforcement was specified for the concrete block wall piers between the service stall doors of the building. The east wall of the structure with its series of wall piers between the service-bay doors is actually more severely loaded than the west side of the building where the cracking occurred. The cracking occurred on the west side, however, because erosion of soil from under the foundation aggravated the problem of excessive load on the foundation. The load on the east wall of the structure, however, is 29,000 pounds per square foot for the wall piers, which also are merely sitting on the thickened slab, as is the west wall. Additionally, the Respondent failed to require a topographic survey and failed to make a grading and drainage plan for the site. The property is characterized by a downward gradient towards the west wall, and therefore, if there had been a topographic survey, the Respondent could have designed a "stepped-down" foundation to keep the foundations below grade. The Respondent, however, failed to do this, which resulted in the foundation for the west wall being above grade with the resulting erosion problems. Additionally, no crack control or expansion joints were provided for in the plans for the wall where Ardaman Engineering found the temperature cracks. After examining the plans and the building, Mr. Snell concluded that the plans were seriously deficient and that the building, as evidenced by cracking and exceptional deflection of structural members, was in a failing condition, with a total collapse being conceivable. Mr. Snell filed a complaint with the Petitioner and informed the building department on February 23, 1982. On that date, on the basis of Mr. Snell's report, the building officials suspended the certificate of occupancy. On that date the building official requested that the Respondent submit complete structural calculations, to which the Respondent never replied. After the certificate of occupancy was suspended, Mr. Snell prepared drawings for structural repairs and another contractor was retained to obtain a repair permit for the building. Thus the project was ultimately structurally corrected, and on June 14, 1982, the building department reinstated the certificate of occupancy. The Respondent never asked for any site information, topographical or otherwise from the owner, Mr. Buck, and the contractor, Mr. Malcolmson, had to establish the floor elevation for the new building. The Respondent contends that he issued the permit drawings without the topographical and grade information because Mr. Buck indicated that an engineer would separately furnish all required site information. The fact remains, however, that the Respondent allowed the drawings to be issued from his office without the grade and topographical information, thus signing, sealing and submitting an incomplete set of plans to his client. Mr. David Titsch is a registered architect and was accepted as an expert witness in the field of architecture on behalf of Petitioner. He established that it is customary for an architect to require an owner to have a topographic survey performed. The architect's responsibility is to see that the survey is performed so that he may use that information to design the project and adequately prepare drawings. If an architect requests his client to provide such information and the client or owner fails to do so, the architect should proceed no further. It is a departure from reasonable and prudent architectural practice to allow drawings to be signed, sealed and issued as final plans from an architect's office which do not depict grade information. It is particularly important to show grade information for adjacent property when proposing an addition to a structure that will abut on a property line, as in the instant situation. In addition to the failure to depict site grade, the Respondent failed to illustrate floor elevations, simply drawing a floor slab at an undetermined elevation which put the burden on the contractor to estimate where to put the floor of the building. Serious loading problems on the footing along the west property line were demonstrated based upon Mr. Titsch's calculations, as well. It is a design error to put a ten-inch deep "floating slab" foundation along a property line. This type design is insufficient because it creates a hazard along the property line where there could be erosion of the supporting soil and where the architect, contractor and the owner cannot control what use the adjacent property owner might make of his property, which could have the effect of undermining the slab-type foundation. In fact, the slab was constructed above grade and the monolithic slab footing became exposed when a washout occurred on the adjacent property. Additionally, the span over the driveway was excessive and structural support for the roof slab (24-inch "double T" prestressed concrete members) was inadequate. The foundation and vertical structural support was simply not designed to carry that load, and the span of the roof over the driveway area was bordering on failure. No beams were depicted supporting the wall and roof sections over the garage door openings. Thus, the contractor was left to guess, once again, as to how to support the building above these openings. In light of these deficiencies, Mr. Titsch opined that the plans depart from acceptable principles of professional architectural practice and could not result in a sound, safe building. Mr. Robert Dykes, AIA, testified as an architectural expert for Petitioner. Mr. Dykes reviewed the permit set of plans and testified concerning his expert opinion regarding the deficiencies appearing on the face of the plans. Thus, it was established, as to Sheet 1, the site plan, that the floor paving and site heights are not indicated, the water, sewer, electric and phone services are not shown, and the drainage for storm water is not indicated. The present and proposed buildings are poorly dimensioned. On Sheet 2 the thickness of walls and vertical reinforcing are not shown. The east-west dimensions do not correctly "add up." On the floor plan depicted on Sheet 3, the vertical structural steel is not shown in the garage stall areas. On Sheet 4, the foundation, a small rectangle is depicted, assumed to be the location of vertical reinforcing steel, but it is not shown in other floor plan depictions, rendering the various sheets inconsistent. Footing requirements for the front wall of the stalls are not depicted. On Sheet 5, the front elevations and southwest elevations of the main office area are not clear as to the span condition at the driveway between both buildings (roof span), nor is the vertical height of the front elevation and exterior building material illustrated. On Sheet 6 the type of concrete block to be used is not clearly indicated, and once again, solid rectangular squares are shown on this sheet to possibly indicate vertical reinforcing, but the exact meaning of these depicted squares was not described and they are not consistent with the foundation plan. Structural reinforcing requirements between and over the overhead doors are not indicated. On Sheet 7 the wall sections are not clear as to the sizes of the concrete beams, the reinforcing requirements and the "double-T" members and flat slab details. The wall sections are further shown to be inadequately drawn because they do not depict connection details between the flat slab and the steel or concrete beams. As to Sheet 8, no requirements for vertical reinforcement are shown and the original plans drawn for a metal building application have not been sufficiently modified to depict an adequate, safely- supported, precast concrete roof system. Finally, Sheet 9 regarding the electrical plan, does not provide any concrete information regarding the type of light fixtures, wattage, electrical circuits, air conditioning voltage or panel board locations. Mr. Dykes opined that the building failed structurally and was unsafe as designed and built. COUNT III On July 26, 1982, the Respondent signed a stipulation in DOAH Case No. 83-809, agreeing to pay a sum of money to former clients, Herman Chait and Ann R. Chait. The sum of $1,500, plus $26.55 costs, represents a judgment entered against the Respondent in favor of the Chaits by the County Court in and for Sarasota County. Pursuant to the terms of the stipulation, the Respondent was to pay that amount in equal monthly installments over a period of 15 months, during which time the Respondent would be placed on probation by the Board of Architecture until the amount was paid in full. On September 28, 1982, the Board of Architecture entered a Final Order, incorporating in its entirety the stipulation signed by the Respondent. The final payment of the amount referred was due on December 28, 1982. On February 22, 1984, an order finding probable cause was entered by the Secretary of the Department of Professional Regulation for the Respondent's violation of the stipulation. At the instant proceeding the Respondent admitted that he had signed the stipulation, that he had not paid the amount, and that the time limit for payment had expired. The Respondent also admitted receiving two letters from Petitioner's counsel as well as a telephone call reminding him of his obligation to pay the Chaits and the possibility of automatic suspension of his license for failure to pay. His sole defense is that his personal and financial circumstances did not permit him to meet that obligation, although he acknowledges that it is due and he intends to eventually pay it.
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
The Issue Whether disciplinary action should be taken against Respondent’s license to practice contracting under License No. CCC 057995, based on the violations of Subsection 489.129(1), Florida Statutes (2005).
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material hereto, Respondent was a certified general contractor, having been issued License No. CCC 057995 by the Department. At all times material hereto, Respondent was the qualifier of Victor's Roofing Co., Inc., of the Florida Keys. On January 14, 2005, Respondent entered into a contract with Bobby McElroy to re-roof McElroy's residence located in Punta Gorda, Florida. The roof had been damaged during Hurricane Charley the previous year. The contract price was $23,750, of which McElroy paid $15,800 in advance. Of the advance funds, $7,850 was designated as payment to take off the old roof and install felt and metal flashing, and $7,950 was designated for installing tiles on the roof. The balance ($7,950) was designated for the remainder of the work, i.e., replacing water damage, installing 90-pound roll-roofing slate over the felt, obtaining permits, and payment of dump fees. Respondent commenced work on the McElroy residence on March 8, 2005, by removing and disposing of the existing roof tiles, doing repair work, installing 30-pound felt paper, and "hot mopping" the roof. The purpose of the "hot mopping" was to protect the roof pending installation of the new roof tiles. Respondent opined at final hearing that the completion of "hot mopping" constituted a new roof. The new roof tiles were, in his opinion, only for aesthetics. McElroy was advised that it would take six weeks or so, and possibly even up to 18 weeks, for the new tiles to arrive. Respondent came to McElroy's house on June 27, 2005, some 12 weeks after Respondent had commenced work on the roof, with a tile order form. The tiles listed on that form, however, were Capri Pinto Blend tiles, not the Capri Hope tiles that McElroy had decided upon. The tile order form was dated January 20, 2005, but McElroy said he had not even made up his mind about which tiles to order until February 16, 2005. McElroy believes the date on the order form was wrong or had been changed by someone. The date at the top of the tile order form was January 20, 2005. However, the form listed June 27, 2005, as the order date and also as the ship date. The form indicated a check was received from "Victor's Roofing" on June 27, 2005. None of the testimony at final hearing cleared up this discrepancy. Respondent advised McElroy on June 27, 2005, that Capri Hope tiles were no longer being manufactured, but McElroy had reason to believe that representation was in error. The evidence on this point was uncorroborated hearsay from McElroy, who said he was told by the manufacturer that the Capri Hope tiles were still being made. Respondent presented uncorroborated hearsay testimony that a representative from the company told him the tiles had been discontinued. There was no competent and substantial evidence presented as to whether the tiles had been discontinued or were still available. McElroy apparently and reluctantly acquiesced to the Capri Pinto Blend tiles, and the tiles valued at $4,837.20 were delivered to McElroy's residence on or about June 30, 2005. However, Respondent did not return to install the tiles and has done no work on McElroy's house since May 26, 2005, i.e., prior to the new tiles being ordered. In October 2005, Respondent apparently picked up the Capri Pinto Blend tiles from McElroy's home pursuant to instructions from McElroy. Another hurricane was approaching, and McElroy was worried that the tiles may blow off the roof where they were stacked. At final hearing McElroy testified that the last time he saw Respondent was when the Capri Pinto Blend tiles were removed from his property. However, in the chronology of events in McElroy's complaint to Petitioner, which McElroy testified was true and accurate, there is no mention of the tiles being removed. This inconsistency was not cleared up at final hearing. In February 2006, McElroy hired a second contractor to "finish" his roof. However, at that time, McElroy decided to upgrade to a metal roof. The cost of the upgraded roof was $25,200, which included some roof preparation in addition to what Respondent had previously done and the cost of the new metal roof. There was no testimony as to the value of the services that Respondent provided to McElroy before Respondent ceased working at the McElroy's residence, but it is clear that extensive work was done. It is also clear that Respondent did not complete the job by installing the Capri Pinto Blend tiles and did no work on the job since May 2005 (except for picking up the tiles in October 2005). Petitioner submitted an affidavit indicating that the total investigative cost of this case to Petitioner, excluding costs associated with any attorney's time for DBPR Case No. 2006-003419, was $297.83. The hearsay affidavit was not corroborated by other competent evidence. On November 8, 2004, Respondent entered into a contract with Larry Mesler to re-roof Mesler's residence located in Punta Gorda, Florida. The roof had been damaged by a hurricane during the previous year. The copy of the contract entered into evidence is essentially unreadable, but the parties stipulated that a contract existed between them. The contract price was $30,000, of which amount Mesler paid $20,000 (a $10,000 down payment and $10,000 more when the roof tiles were ordered). The down payment covered the removal and disposal of the old tiles, as well as the "hot mopping" process. The second payment covered the purchase and delivery of the tiles for Mesler's roof. The final $10,000 was apparently to cover the cost of installing the new tiles, but there was no clear evidence presented at final hearing as to that fact. In April 2005, roof tiles for the project were delivered to Mesler's residence. Mesler was concerned about the number of broken tiles, but no evidence was presented to indicate there were insufficient tiles to complete the job. It took until July 7, 2005, for a building permit to be obtained for commencement of the roofing work. This was during a period of time that numerous roof repair jobs were going on following Hurricane Charley, which had hit the area in 2004. The roof tiles were installed by Respondent, but it is unclear from the evidence as to how much of the job was completed. The testimony at final hearing was extremely sketchy as to whether Respondent installed some or none of the tiles. It is clear, however, that the job was not completed to Mesler's satisfaction. Mesler was unsuccessful in his attempts to contact Respondent to finish the job. At some point Mesler hired another contractor and paid him $16,550 to complete the roofing job. That amount included purchase of additional tiles, but the contract, as well as Mesler's testimony, is unclear as to how much tile was ordered or the extent of the additional work. Nor is the testimony clear as to when Respondent last performed work on Mesler's home. Petitioner submitted an affidavit indicating that the total investigative cost of DBPR Case No. 2006-006820 to Petitioner, excluding costs associated with any attorney’s time, was $351.07. The hearsay affidavit was not corroborated by other competent evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board: Finding that Respondent, Victor Harris, d/b/a Victor's Roofing Company, Inc., of the Florida Keys, abandoned the McElroy project and imposing an administrative fine in the amount of $1,000; and Dismissing the Administrative Complaint against Respondent as to the Mesler project. DONE AND ENTERED this 6th day of January, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2010. COPIES FURNISHED: G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Victor Harris Victor's Roofing Co., Inc. of the Florida Keys 5409 Overseas Highway, Suite 254 Marathon, Florida 33050-2710
Findings Of Fact The property here involved comprises 6.2 acres located in Southeast Clearwater near U.S. 19 and Nursery Road. It fronts on Nursery Road, which is on the north side of the property and the zoning is RM-16 (medium density multifamily). A multifamily HUD project is under construction and approximately two-thirds complete. The issue in this case is the denial of Chateaux de Ville's application for a variance to erect a six-foot wall on the front property line which abuts Nursery Road. Zoning regulations authorize a 30-inch fence along the front property line. Preliminary site plan for this townhouse development was approved by the City Commission on November 19, 1981 (Exhibit 1), as a Final Site plan. A minor amendment to this plan to erect the 30-inch masonry wall in the setback area in the northwesterly corner of the property was approved December 15, 1983 (Exhibit 2). On August 13, 1982, the City of Clearwater Engineering Department approved Final Site plans which showed the proposed six-foot high concrete wall on the front property line running the entire length of the property along Nursery Road (Exhibit 8). That approval was granted subject to compliance with all zoning regulations. No approval from the City Planning Department was obtained for this proposed wall. A second amendment to the site plan to add a bath house adjacent to the swimming pool was approved April 19, 1984, by the City Manager upon recommendation of the Planning Department (Exhibit 3). A third revision to the site plan to provide for a six foot perimeter wood fence along the east, west, and south sides of the property and to provide six-foot fences between the individual townhouse unit rear yards located both internally and along the east, west, and south perimeter of the project area was approved in July 1984 (Exhibit 4). In recommending approval of this amendment, which complied with the zoning regulations, the Planning Director noted that no fencing is being provided for the townhouse units along the north side of the project adjacent to Nursery Road. Without obtaining a building permit for its construction, a six-foot concrete block wall was erected on the front property line (adjacent to Nursery Road) by the developer. No building permit for such construction would have been issued by the City until a variance in permitted fence height had been obtained. The building and zoning regulations provide that no fence higher than 30 inches can be erected in the front setback area without first obtaining a variance. Approximately one-third of the tract being developed is occupied by a lake on the south end of the property. This lake was described as a very attractive lake with good fishing. Appellant contends that this lake constitutes an attractive nuisance and the wall on the front of the property is needed to keep children from entering the property. Appellant also contends that the six-foot wall along the front of the property is needed to protect the residents from burglars, thieves, and other criminal elements who easily could enter the property from Nursery Road if the fence is not there to deter them. The wall also serves to complete the six-foot enclosure around the property.
The Issue Whether the Respondent, Peter Battle, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against his roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Peter Battle, was a certified roofing contractor having been issued License No. C-1959 and was the certified contractor for Battle Roofing Company. On September 18, 1996, the Town of Redington Beach approved and issued a roofing permit to Battle Roofing Co. to replace the roof of a house located a 16215 Second Street, East, Redington Beach, Florida. In Redington Beach, inspections of construction sites are conducted only in the following instances: (1) upon request by the property owner or the contractor working at the site; (2) to determine if a proper permit has been secured for the work being performed; or (3) when apparent violations of the Standard Building Code can be viewed by local code enforcement personnel from the street or right-of-way adjacent to the site where work is being performed. On October 16, 1996, while driving on the street adjacent to the site of the roofing project, William Keeley, Building Code Administrator for the Town of Redington Beach, observed the roofing system being installed by Respondent. At that time, it was apparent to Mr. Keeley that the roof being installed by Respondent was a low-sloped roof. Moreover, it appeared to Mr. Keeley that the low-sloped roof being installed by Respondent had single-ply base sheets. Because the Standard Building Code, required double-ply base sheets for a low sloped roof, Mr. Keeley went on the property to inspect the roofing project. As a result of the inspection, Mr. Keeley determined two violations of the Standard Building Code; detailed the code violations on a written rejection notice; and posted the rejection notice at the site. The rejection notice indicated that Respondent (1) failed to use two-ply base sheets as required by Section 1509.4.21 of the Standard Building Code and (2) failed to use six nails or fasteners per shingle as required by Section 1509.3.5 of the Standard Building Code. On October 16, 1996, Mr. Keeley met and discussed with Respondent the violations of the Standard Building Code that Mr. Keeley's inspection had revealed. Furthermore, Mr. Keeley informed Respondent that the deficiencies must be corrected and brought into compliance with the applicable provisions of the Standard Building Code. Another inspection of the roof of the Redington Beach house was performed by Mr. Keeley on March 4, 1997. At that time, it was determined that the violations cited on the rejection notice issued on October 16, 1997, had not yet been corrected. Moreover, the March 4, 1997, inspection of the subject roofing project revealed several other deficiencies and violations of the Standard Building Code. These deficiencies included the following: (1) The rakes were not nailed and cemented as required by Section 1509.4.2.3 of the Standard Building Code; (2) The valley lining was not cemented and was only 14 inches wide in violation of Section 1509.14.3.2 of the Standard Building Code; (3) One shingle on the north and south rakes was short and tabs were missing; (4) The lap at the tie into the porch roof was not cemented as required due to the house being located in a high wind area; and (5) The area on south side of house where soffit and fascia meet was not sealed and secured. On or about March 7, 1997, Mr. Keeley filed a formal complaint with the Pinellas County Construction Licensing Board against Respondent. As a basis therefore, Mr. Keeley cited the deficiencies noted in paragraphs 5 and 8 above. A third inspection of the roofing project was conducted by Mr. Keeley on August 1, 1997. This inspection revealed that only one of the previously noted deficiencies was corrected to comply with the Standard Building Code. The corrected deficiency involved the lap at the tie into the porch roof which previously had not been cemented. Other deficient areas noted in the October 1996 and March 1997 inspections were still in noncompliance with the Standard Building Code at the August 1997 inspection. There is no evidence that Respondent's license as a roofing contractor has been subjected to disciplinary action on any prior occasion by Petitioner.
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 that finds that: Respondent, Peter Battle, committed the offense alleged in Count One of the Administrative Complaint, violated Chapter 89-504, Section 24(2)(d) and (j), Laws of Florida, and which imposes an administrative fine of $300 for this violation. Respondent violated Chapter 89-504, Section 24(2)(m), Laws of Florida, is guilty of incompetence as alleged in Count Two of the Administrative Complaint, and which imposes an administrative fine of $300 for this violation. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: _ CAROLYN S. HOLIFIELD 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Peter Battle, pro se 1090 Sixty-Fourth Avenue, South St. Petersburg, Florida 33705 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed by the Petitioner as a roofing contractor, having been issued license number CCC 57995 by the Florida Construction Industry Licensing Board. At all times relevant to this proceeding, Respondent was the qualifier for and did business as “Victor’s Roofing Co., Inc. of the Fla. Keys” (Victor’s Roofing). At all times relevant to this proceeding, Mr. Johnson was an owner of property located at 3214 Harriet Avenue, Key West, Florida (the subject property). Mr. Johnson lives in Hollywood, Florida. The subject property is rental property. Respondent and his company are not licensed to do drywall work in Key West, Florida, and they are not licensed with Petitioner other than as a roofing contractor. ROOFING WORK On November 3, 2008, Respondent, on behalf of Victor’s Roofing, entered into a contract with Mr. Johnson to re-roof the subject property. The proposal submitted by Respondent to Mr. Johnson contained Victor’s Roofing’s full corporate name; its office address in Marathon, Florida; two telephone numbers; and a fax number. The proposal was signed by Respondent. The proposal described in some detail the scope of the work. The price of the work was $7,000.00. Mr. Johnson accepted the proposal. Victor’s Roofing completed the roofing job to Mr. Johnson’s satisfaction. A leak developed after the roof was completed and Victor’s Roofing promptly repaired the leak to Mr. Johnson’s satisfaction. Petitioner’s Administrative Complaint alleged that Victor’s Roofing had failed to obtain a permit for the roofing job on the subject property and that it had failed to obtain required inspections. Those allegations were the result of an error by Petitioner’s investigator. Ms. Del Rio obtained records from the City of Key West Building Department for the wrong address. Instead of obtaining the permit history for the subject property (3214 Harriet Avenue) she requested and obtained the permit history for 3314 Harriet Avenue. Respondent applied for a permit for the roofing job on the subject property on November 11, 2006, and he obtained an inspection of the roof on November 27, 2007 [sic]. There was insufficient evidence to establish that any other permit or any other inspection was required for the roofing work. DRYWALL WORK After the roofing job had been completed (but before the inspection on November 27, 2007),2 Mr. Johnson informed Respondent by telephone that he needed someone to replace drywall that had been damaged during the period of time the subject property’s roof leaked. Mr. Johnson asked Respondent whether he knew anyone who could do the job. Respondent replied in the affirmative and told Mr. Johnson he would have someone contact him about doing the work.3 Thereafter, Respondent’s brother, Early Harris, contacted Mr. Johnson and the two of them verbally agreed on a price of $4,000. At the time Respondent put Early Harris in touch with Mr. Johnson, Respondent knew that Early Harris was not licensed to do drywall work in Key West. After giving Mr. Johnson’s telephone number to Early Harris, Respondent had no further involvement with the drywall work on the subject property. The price of the drywall work escalated to $9,000.00 after the work began. On November 25, 2006, Early Harris and Mr. Johnson signed a written proposal agreeing to the price of $9,000.00.4 This was a form proposal with the following: Victor’s Roofing Co., Inc. 2nd Generation Serving South Florida Licensed & Insured Marathon, Fla. The only telephone number on the proposal other than Mr. Johnson’s, was the number for Early Harris’ cell phone. The contract signed by Respondent on November 3, 2006, for the roofing work was on a different form and utilized a different font than the contract signed by Early Harris on November 25, 2006. The name of the corporation on the proposal for the drywall work, while similar to the name of Respondent’s company, was different. Early Harris has worked for Respondent’s business for several years, but there was no clear and convincing evidence that Early Harris had the authority to contract on behalf of Respondent’s business in November 2006. There was no evidence that Early Harris is a part owner of Respondent’s business or that he is an officer or director of Respondent’s business. Respondent testified, credibly, that Early Harris was not authorized to contract on behalf of Respondent’s business at the times relevant to this proceeding. There was no clear and convincing evidence to refute Respondent’s assertion that Earl Harris had no authority to contract on behalf of Respondent’s business. Early Harris did the drywall work on the subject property. Mr. Johnson paid Early Harris $9,000.00 for the drywall work. Mr. Johnson could not find the check(s) he wrote for the drywall work and, consequently the check(s) were unavailable as an exhibit. His recollection as to the name of the payee of the check(s) was not clear. Respondent testified, credibly, that neither he nor his business received any of the money for the drywall work. The drywall work Early Harris did was not to Mr. Johnson’s satisfaction. Mr. Johnson had to pay $600.00 to a drywall contractor for corrective work. In addition, Mr. Johnson had to pay $600.00 for a permit to have the repair work done.5 The total investigative costs of this case to Petitioner, excluding costs associated with any attorney’s time, was $191.16.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order finding Respondent not guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of January, 2010.
