Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
Findings Of Fact Petitioner is an applicant for licensure by examination to practice architecture in Florida. The exam consists of two parts: the written part is given in December of each year and the site and design problem is given in June of each year. Todaro graduated from Ball State University, Muncie, Indiana in 1977 and had met the requirements for admittance to the licensure examination. Todaro took the design and site planning portion of the national architectural exam in June, 1980. This consists of a 12 hour sketch problem involving the design of a structure by the applicant, including requirements for placing the structure on the site, elevations, building cross-sections, facades, and floor plans. The exam is prepared by the National Council of Architectural Registration Boards (NCARB) and is used by all states. Pre-test information supplied to each applicant includes a booklet providing the architectural program to be accomplished and the various requirements to which applicants are expected to apply themselves in order to receive a passing grade. At the examination, other information is supplied to enable the applicant to more adequately design the structure requested and perform the necessary technical architectural requirements. The purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted by NCARB and allows the national testing service grading the examination (and through them the Florida Board of Architecture) to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements which were tested in written form in the other portion of the examination given in December. The grading of the site and design problem is accomplished by the review of the applicant's product by at least three architects selected by the various architectual registration boards of some 20 states who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin of the solution which lie is grading. The grader is instructed in how to consider the appropriate criteria. Graders are also instructed to make notations for areas of strength and of weakness on the grading criteria and then determine, based upon an overall conception of the applicant's submission, whether or not a passing grade is warranted. A passing grade is a three, and an applicant must receive at least two passing grades from the three architects who independently grade the applicant's submission. In the instant cause, Todaro received two 2's and one 3. He was therefore notified of his failure to pass the examination and of his right to this hearing. While Petitioner established that an effort had been made on his part to comply with the instructions, it is clear that in several material areas he failed to achieve sufficient clarity of presentation, particularly as to adequate consideration to grading and site planning, adequate consideration to marking elevations on his floor plans and adequate notation regarding the type of materials to be used in his elevations, floor plans, and wall sections. In general Todaro failed to place within his solution adequate information to allow the graders to determine that his program could be used; he failed to synthesize the information which he had learned in his educational process, in such a manner as to prepare adequate plans to respond to the requirements of good architectural practice in the formulation of design and site plans.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Stephen Todaro to change his grade on the June, 1980, site and design architectural examination be denied. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Stephen A. Todaro 1507 N. E. 5th Avenue Ft. Lauderdale, Florida 33304 John J. Rimes, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering, and violated Section 471.033(1)(j), Florida Statutes, by sealing a drawing which was not prepared by him or under his responsible supervision, direction, or control. The Respondent denies that there has been any violation.
Findings Of Fact At all times material hereto, the Respondent, Monrad R. Thue, has been a licensed engineer in the State of Florida, having been issued license number PE 0032071. The Respondent's address is 8520 S.W. 53rd Court, Miami, Florida 33143. In January of 1987, the Respondent signed and sealed plans for the steel elevator support of the "Sander's residence" located on Key Biscayne, Florida. At the time of signing and sealing the plans, the Respondent also placed the following limiting notation over the seal: "For steel elevator supports only." The Respondent did not meet with the draftsman, David Del Sol, either prior to or during the draftsman's preparation of the plans. Daniel Del Sol, who is David Del Sol's brother, took the subject plans to the Respondent because the building department required that the elevator support portion of the plans be sealed by a licensed engineer before it could be approved. The Respondent carefully reviewed the plans drawn by David Del Sol and retained the plans for a couple of days During the next two days the Respondent did the necessary calculations and made some minor drafting changes on the support system sections of the plans. He than signed and sealed the plans and returned them to David Del Sol. These actions by the Respondent constitute responsible supervision, direction, or control. 1/ The steel elevator support portion of the plans suffers from a lack of coordination in several details and could have been drawn somewhat clearer. The lack of coordination and clarity in the subject plans does not, however, constitute negligence in the practice of engineering. 2/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Professional Engineers issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 25th day of March, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1991.
The Issue Whether a civil fine should be imposed against Respondent for alleged violation of Section 399.06(2), F.S., as set forth in the Notice to Show Cause, dated February 16, 1978. The Respondent was furnished Notice of Hearing by the Hearing Officer on September 6, 1978, with date of hearing scheduled for November 13, 1978. Upon Petitioner's Motion for Continuance, the hearing was continued until November 22, 1978. Upon a further request for continuance based on injuries received by Respondent, the hearing was again continued until December 5, 1978, and the order continuing the hearing, dated November 17, 1978, was furnished to the Respondent. By his letter of November 29, 1978, Respondent acknowledged receipt of the said order. Neither Respondent nor any representative on his behalf appeared at the hearing and, accordingly, pursuant to Rule 28-5.25(5), the hearing was conducted as an uncontested proceeding.
Findings Of Fact In the early part of 1977, Samuel Eldon, owner and operator of the All State Elevator Company, Miami, Florida, contracted with Respondent Yanks Construction Company to furnish and install two elevators at an apartment building under construction at 677 NE 24th Street, Miami, Florida. Eldon obtained a city permit to install the two elevators and began work on the job about March, 1977. By July, 1977, installation of the elevators was essentially complete. (Testimony of Eldon) On July 25, 1977, Eugene S. Walters, elevator inspector for the City of Miami, went to the construction site to inspect the elevators for safety, possible fire hazards, and condition of the equipment. This inspection was for the purpose of determining if a construction permit for a period of thirty days should be granted in order to make the elevators available for use of contractor personnel. Walters found a number of deficiencies in the installation and other deficiencies which required correction on the part of Respondent. Since the elevators were not in a satisfactory condition for use, Walters gave the deficiency "punch list" to Respondent and Eldon for corrective action. Additionally, Eldon disconnected some wires to prevent operation of the elevators. On this date Eldon observed that the elevators were being operated by unknown individuals. At this time, Respondent agreed to perform the necessary work in order that the elevators would pass inspection. (Testimony of Walters, Eldon) On September 5, 1977, Eldon asked for a reinspection. When Walters arrived at the building, he observed that the elevators were in use by construction personnel. He noted that the deficiencies had not been remedied and therefore shut off the elevator switches to prevent them from operating. On October 11, he again went to the site, accompanied by state elevator inspector Ray L. Cline. They posted warning notices in both elevator cars, pulled the main line switch and sealed the elevators with a state seal. On October 17, the inspectors found that the seals had been broken and observed the elevators being operated by tenants of the building. The deficiencies still had not been corrected by Respondent. On November 11, 1977, Respondent was again told of the remaining work necessary to place the elevators in an operable state. (Testimony of Walters, Cline) By letter of January 6, 1978, the Miami Building and Zoning Inspection Department informed Respondent again of the unfinished items and pointed out that one of the elevators had been seen in use by various individuals. Respondent advised by letter of January 11 to the building department that one of the elevators had been inspected and approved for construction use and would be operated only by authorized personnel, and that the other elevator would be locked out of service when the job was not in progress at the end of each workday. Finally, certificates were issued on February 6, 1975, for full use of the elevators after passing the required inspection. (Testimony of Walters, Exhibits 1-2)
Recommendation That this administrative proceeding against Respondent be dismissed. DONE and ENTERED this 2nd day of January, 1979, in Tallahassee, Florida. Hearings THOMAS C. OLDHAM Hearing Officer Division of Administrative 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Jo Gallay Staff Attorney Department of Business Regulation 725 South Bronough Street Johns Building Tallahassee, Florida 32304 Yanks Construction Company 1835 NW 20th Street Miami, Florida 33142 ===========================================================
