The Issue The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.
Findings Of Fact Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488 9675 COPIES FURNISHED: Mr. J.K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. Norman Rivers 1710 South East 19th Street Ocala, Florida 32670
Findings Of Fact At all relevant times, respondent Mary L. Cluett was a licensed real estate broker in the State of Florida having been issued license number 0197523 in accordance with Chapter 475, Florida Statutes. The last license issued to Mary L. Cluett was as a broker, Cluett Realty, Inc., 4720 Palm Beach Blvd., Ft. Myers, Florida 33905. At all relevant times, respondent Cluett Realty, Inc., has been a corporation licensed as a real estate broker in the State of Florida having been issued license number 0021798 in accordance with Chapter 475, Florida Statutes. The last license issued to Cluett Realty, Inc., was at the address of 4720 Palm Beach Blvd., Ft. Myers, Florida 33905. The qualifying broker for Cluett Realty, Inc., is Ernest H. Cluett, husband of Mary L. Cluett. Mary L. Cluett is the vice-president of the corporation. Each owns 50 percent of the corporation. In December, 1985, and January, 1986, respondents were acting as agent for William Cyphart, owner of a residential duplex at 2353 Lafayette Street in Ft. Myers. In December, 1985, Shirley Temple became interested in renting one of the Cyphart units and contacted respondents. Temple, mother of two young children, was looking for a landlord who would enter into a contract with the U.S. Department of Housing and Urban Development, Section 8 Housing Assistance Payments Program (HUD). She also needed a landlord who would provide water since Temple had an outstanding $100 water bill and would not be able to initiate water service in her own name. Temple discussed her need of HUD assistance with Mary Cluett and was told the landlord would accept a HUD contract. But she did not discuss the issue of water service with Cluett. Temple reported to the local HUD public housing agency caseworker assigned to her and was given papers to be completed and signed by her and the landlord. They included: the Dwelling Lease Agreement; the Housing Assistance Payments Contract; and the Request For Lease Approval, including worksheet for information on provision of utilities and appliances. Temple brought them to Cluett on December 27, 1985. At respondents' office, the forms were completed and signed. But the evidence was not clear whether Cluett had actual knowledge at that time that the Dwelling Lease Agreement (which was dated and effective January 1, 1986) and Request For Lease Approval (dated December 27, 1985) she signed provided for provision of water service by Cyphart under the lease. The evidence was that the documents were in blank when Temple brought them to Cluett's office. While at Cluett's office, the documents were given to Cluett's secretary for a period of time. The handwriting on the part of the Request For Lease Approval dealing with responsibility for providing water service does not appear to be Cluett's. The blanks in the Dwelling Lease Agreement dealing with responsibility for providing water service are completed in type, and it is not clear who typed the information. While Temple says she left Cluetts office with completed documents, she says she did not talk to Cluett about water service. Finally, the local HUD public housing agency director, Richard Hallam, testified that he had his office insert the information on water service on the documents. On behalf of Cyphart, Cluett also agreed to accept a security deposit of only $54 from Temple. When Temple was unable to pay more than her $10 share of the $350 first month's rent (the $340 balance to be paid by HUD), Cluett agreed to sign the documents, acknowledging receipt of the $54, and let Temple pay the security deposit when she moved in the following week. The security deposit is not just for Cyphart's benefit. The Dwelling Lease Agreement provides that the landlord will hold' the security deposit. It also provides: It is expressly understood and agreed that the TENANT may not direct OWNER to apply said Security Deposit to the payment of rent for any month during the Lease term. If the TENANT vacates the unit, the OWNER, subject to State and local law, may utilize the deposit as reimbursement for any unpaid rent or repairs and/or damages beyond the normal wear and tear caused by the TENANT, his household guest, or visitors. If the amount of the Security Deposit is insufficient for such reimbursement, the OWNER may claim reimbursement from the [public housing agency] not to exceed an amount equal to the remainder of two month's Contract Rent. Any reimbursement under this Section shall be applied first toward any unpaid rent. The [public housing agency] will not be responsible for paying damage claims for any damages to furnishings, exclusive of range, refrigerator and air conditioning/heating units. The Housing Assistance Payments Contract signed by Cluett, on behalf of Cyphart, on December 27, 1985, and by Hallam on or before January 1, 1986, contains a similar clause. Temple moved her belongings in on January 1, 1986. She moved herself and children in on January 2. She did not pay the security deposit then or at any time later. She did have water service when she tried the water on January 2. On or about January 14, 1986, Temple's water service stopped. The evidence was not clear whether the water service Temple had between January 2 and January 14 was "left over" from a prior tenant or whether it was initiated when Temple moved in. If the latter, the evidence was not clear who initiated it or who turned it off on approximately January 14 (or why). No water service personnel testified at the hearing. When Temple's water service stopped, she called Cluett. Cluett told her Temple would have to have the water service turned on in her own name. The evidence was not clear whether Cluett had actual knowledge of the lease provisions regarding water service at this point either. (Evidence answering the question who turned the water on and off and why would have helped answer the question of Cluett's actual knowledge, too.) Temple replied that she understood the landlord furnished the water under the lease. Cluett then raised the issue of Temple's failure to pay the security deposit. After the conversation, Temple called and told her caseworker at the public housing agency what had happened. On January 15, 1986, Cluett sent the public housing agency a letter saying that the Cyphart-Temple lease was considered null and void because Temple had not paid the security deposit. Cluett offered to "rewrite the lease as soon as possible" if Temple would have the security deposit at the signing of the new lease. On January 17, 1986, the matter came to Hallam's attention. Based on his reading of the lease, in which Cluett acknowledged receipt of the security deposit, Hallam assumed that Temple had paid the security deposit. He had his staff confirm that the water service was in fact off as of January 14, 1986. (Hearsay evidence told to Hallam that the water service was turned off on January 2, 1986, cannot be credited since it is contrary to Temple's own testimony--the only non-hearsay, or hearsay that would be admissible over objection in a civil trial on the issue, on the subject. See Section 120.58(1)(a), Florida Statutes (1985).) He also confirmed that Temple was financially unable to have the water turned on in her name. Hallam then sent a letter to Cluett, dated January 17, 1986, terminating the lease for an alleged default in the provision of water service. Hallam had Temple's caseworker tell Temple she would have to find another place to live.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission hold both respondent Mary L. Cluett and respondent Cluett Realty, Inc., guilty of violating Section 475.25(1)(b), Florida Statutes (1985), under Counts I and II of the Administrative Complaint and fine them $1000 and $500, respectively. RECOMMENDED this 5th day of February, 1987, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2909 These rulings on the parties' proposed findings of fact are made in compliance with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings Of Fact. 1.-2. Accepted and incorporated. 3. Accepted and incorporated, except the date was December 27, 1985. 4.-6. Accepted and incorporated. 7. Accepted and incorporated, except the discussion was limited to water. 8.-9. Accepted and incorporated. Respondents' Proposed Findings Of Fact. Accepted and incorporated. 2.-3. Irrelevant to the merits; findings on the continuance matter are unnecessary. First clause rejected as contrary to the finding that she did sign the lease; the rest is accepted and incorporated. Accepted and incorporated except: the sixth sentence is not supported by competent substantial evidence; and the seventh sentence is argument, unnecessary and contrary to facts found. COPIES FURNISHED: James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 John Schiller, Esquire Post Office Box 2835 Ft. Myers, Florida 33902 Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Amended Administrative Complaint, Stephen Wesley Williams, d/b/a Superior Design Construction, Co. Inc., was licensed as a Florida State Certified Building Contractor and a Florida State Certified Pool/Spa Contractor, having been issued license numbers CRC 045849 and CPC 56443 respectively. His licensure status for the Residential Contractor license is designated as "Current, Active." His licensure status for the Pool/Spa Contractor license is designated as "Delinquent, Active." On or about December 19, 2001, Respondent, doing business as Superior Design Construction Company, Inc., entered into a contract with Thomas and Denise Shinn (the Shinns) for construction of a residential swimming pool and pool enclosure to be located at 4050 Retford Drive, Jacksonville, Florida. The contract price was $40,000.00. Respondent obtained a building permit for the job in question as "Superior Design Const Co." The contract does not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. The Department's records establish that Respondent's Certificate of Authority for Superior Design and Construction as a Contractor Qualified Business was issued on May 9, 1997, but has been null and void since August 31, 1999. Construction on the project began around January 2002. Work on the project ceased in or around March 2002. The construction was substantially completed when work ceased on the pool. Mr. Shinn described it as "98 percent of it was finished except for the heater." Other than the heater not being installed, Mr. Shinn considered the few other items that were not completed as minor. The contract specified the installation of a heat pump called an Ice Breaker. This type of pump was specified because it can both heat and cool a pool, which is what the Shinns wanted. Mr. Shinn paid Respondent a total of $38,050 for the job. According to Mr. Shinn, he withheld the final payment of $1,950 because the Ice Breaker heat pump was not installed. According to Respondent, he did not put in the heat pump because he had not been paid the remaining $1,950. The portion of the contract entitled Contract Price & Payment Schedule requires a payment of $1,000 at contract execution and four subsequent payments: Payment #1 - 35% due at Excavation; Payment #2 - 30% due at Gunite; Payment #3 - 30% due at Deck; Payment #4 - 5% due at Plaster. The amount listed for payment number 4 is $1,950. Included in the General Terms and Conditions portion of the contract is the following: PAYMENTS & COLLECTIONS. Contractor reserves the right to stop work at any time past due payment occurs. Owner hereby expressly agrees to such work stoppage and any such work stoppage shall not constitute a breach of contract by contractor. If collection is required of any amounts due under the terms of this contract, or any subsequent approved schedule, owner expressly agrees that he shall be responsible for 18% interest and reasonable attorney's fees for trial, appeal and all costs. Mr. Shinn contacted Respondent several times regarding completion of the contract. While Respondent did not answer many of Mr. Shinn's calls, he did come to the Shinn's home at one point to resolve the situation. However, the heat pump issue remained unresolved. Out of frustration, Mr. Shinn contacted an attorney who wrote a demand letter to Respondent. On or about October 31, 2002, the City of Jacksonville, Department of Public Works, Building Inspection Division, sent a letter to Mr. Shinn notifying him that Respondent had not obtained any inspections for 180 days and that state law could consider this project abandoned. The letter suggested that he contact Respondent immediately to attempt to rectify this situation. Mr. Shinn continued to attempt to contact Respondent but was unsuccessful. Respondent did not notify the Shinns in writing that he was canceling the contract. He did not go to the city to cancel the permit. One work item that was not completed when Respondent ceased working on the job was an unfinished electrical socket near the pool. Mr. Shinn hired Thompson Electric to complete this electrical work that was contemplated by the contract. As a result, Mr. Shinn paid $207.50 to Thompson Electric to have this work completed. In January of 2004, Mr. Shinn contracted with Pinch- A-Penny to install a heater in the pool as one had never been installed. He paid Pinch-A-Penny $3,777.09 to install a pool heater. Mr. Shinn chose to install only a pool heater and not the heating and cooling system specifically referenced in the contract (Ice Breaker) because the Ice Breaker would have cost him $5,500 from Pinch-a-Penny. The amount needed to complete the job as contracted totaled was $5,707.50, which includes $207.50 for Thompson Electric and $5,500.00 for the Ice Breaker heat pump, which is what Pinch-a-Penny charges. Subtracting the $1,950 that the Shinns never paid Respondent leaves a balance of $3,757.50 that the Shinns paid or would have to pay to get the completed pool as contemplated by the contract. As of June 2, 2005, the Department's costs of investigation and prosecution, excluding legal costs, totaled $614.77. Respondent's construction company went out of business on a date that is not clear from the record although Respondent described this job as "about the last pool I built." Clearly, he was no longer in the construction business on the date of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing a $100.00 fine to be deposited in the Construction Industries Recovery Fund for a violation of Section 489.1425; issue a notice of noncompliance pursuant to Section 489.119(6)(e); impose fines in the amount of $500 for abandonment of a construction job; $500 for misconduct; and $100 for failure to put his license number on the contract; pay $3,757.50 in restitution; and require Respondent to pay $614.77 in costs of investigation and prosecution. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 11th day of August, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Wesley Williams 3146 Brachenbury Lane Jacksonville, Florida 32225 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
The Issue Whether the Board of Professional Engineers should penalize Respondent because of negligence in the practice of his profession.
Findings Of Fact Respondent Mr. Walker holds professional engineer's license no. P.E. 40276. His license was issued by the Florida Board of Professional Engineers. During times pertinent he was employed by the U.S. Army Corps of Engineers (Corps). The Corporation is charged with providing investigative and prosecutorial services to the Board in accordance with Sections 455.32, 471.005(9), and 471.038, Florida Statutes. The Board has the authority to assess penalties against professional engineers pursuant to Section 471.033(3), for violations of Section 471.033(1). Mr. Walker has been the Resident Engineer, Construction Division, with the Corps at Hurlburt Field, Florida during all times pertinent. Hurlburt Field is a U. S. Air Force Base. The Corps of Engineers administers major construction projects at Hurlburt Field. During times pertinent Mr. Walker supervised about eight people. In late 2001 or early 2002, the Corps awarded a contract to widen Cody Road and Independence Road, which are located on the premises of Hurlburt Field. Both required the relocation of water lines. The Corps gave a design contract for the road widening project to an architect engineer firm named JE/Sverdrup, of Jacksonville, Florida. JE/Sverdrup prepared an Application for a Public Drinking Water Facility Construction Permit for submission to the Florida Department of Environmental Protection (DEP). DEP was involved in this construction contract because it required the relocation of over 5,000 linear feet of potable water lines. The person who actually signed the permit application was Ronald J. Lowe, Professional Engineer, for a permittee identified as Colonel Timothy Boone, U. S. Air Force. The permit request was submitted to DEP on May 24, 2001. Base Civil Engineering acted as liaison with DEP through its employee Andrea Bishop (Ms. Bishop). The Corps, and Mr. Walker, had no contact with DEP. Permit/Certification No. 0184807-001-DS/C, addressing the road widening project, was granted on June 15, 2001. DEP expected the permit to be closed out upon completion of the construction or upon completion of part of the construction. In order to close out a permit, DEP required a certification by a licensed professional engineer, to the effect that the construction was in accordance with the plans submitted with the permit; that the record drawings for the substantially completed portions of the project were adequate; and that all deviations from the construction permit were indicated, must be provided. Also, a satisfactory analysis of bacteriological samples must be provided. On August 16, 2002, subsequent to the completion of substantial construction work, a Certification of Construction Completion and Request for a Letter of Clearance to Place a Public Drinking Water Facility into Service (Certificate of Completion) was signed by Lieutenant Colonel Jeffrey L. Pitchford, Commander, 16th Civil Engineer Squadron. During the course of construction of this project, Lieutenant Colonel Pitchford, at least weekly toured the sites with Mr. Walker. Lieutenant Colonel Pitchford was aware of what the status of the project was on an on-going basis. At the time the Certificate of Completion was fully executed, work on Independence Road had been completed. Work on Cody Road had not been completed. Lieutenant Colonel Pitchford was aware of that fact. The Certificate of Completion contained attachments that included pressure gauge information, bacterial test results, and red line "as built" drawings. The pressure gauge information said that the tests were conducted on Independence Road. The red line "as built" drawings submitted were drawings of Independence Road. The bacterial analysis does not reveal on what road samples were taken. A careful reading of the Certificate of Completion, as submitted, reveals that it addresses only the completion of Independence Road. The Certificate of Completion is divided into four parts. Part I is entitled "Project Name and Construction Permit Number, Permittee, Etc." It identifies the project and the permit number, among other items of information. Ms. Bishop, the Compliance Program Manager, at Base Civil Engineering at Hurlburt Field, completed Part I of the form. As representative of the U. S. Air Force, Ms. Bishop is the only liaison to DEP. There is no controversy with regard to the manner in which Part I was completed. Upon completion of Part I, Ms. Bishop, in accordance with established procedure, sent the Certificate of Completion to the Corps. Mr. Walker executed Part IV and returned it to Ms. Bishop. Thereafter, Parts II and III were executed by Lieutenant Colonel Pitchford, as described below. Part II of the Certificate of Completion is entitled "Statement by Permittee." The person who signed Part II, Lieutenant Colonel Pitchford, certified as authorized representative of Hurlburt Field, that the contractor had furnished Hurlburt Field with record drawings for the substantially completed portion of the project and that record drawings were available in his office. Lieutenant Colonel Pitchford also certified that, "if this project involves the construction of any new or altered treatment facilities, an operation and maintenance manual for the new and altered treatment facilities included in the substantially completed portion of this project is available for review at the site of the new and altered treatment facilities." Lieutenant Colonel Pitchford signed Part II on August 16, 2002. Part III is entitled "Statement by Owner/Operator of Project After It Is Placed into Service." This was signed by Lieutenant Colonel Pitchford. In this part he certified that as representative of Hurlburt Air Force Base, he will be the owner/operator after it is placed in service. He also certified that he received a copy of the record drawings and that they were available for his review at his command. Part III of the Certificate of Completion also stated that the project, 0184807-001-DS/C, was substantially complete. This block was signed by Lieutenant Colonel Pitchford on August 16, 2002. As noted earlier, when Mr. Walker executed Part IV, Parts II and III were not completed. Part IV of the Certificate of Completion is entitled, "Certification of Construction Completion by Professional Engineer in Responsible Charge of Inspecting Construction of Project." Part IV was executed by Mr. Walker on August 15, 2002. By his signature he certified that as a professional engineer in Florida he was responsible for inspecting the construction of the road widening project in order to determine if the work "is proceeding in compliance with the construction permit and approved plans and specifications." In Part IV of the Certificate of Completion he also certified that, ". . . the substantially completed portion of this project has been constructed in accordance with the construction permit. . . ." Moreover, he certified, among other things, that the record drawings for the substantially completed portion of the project are accurate, and, that to the best of his knowledge all water mains have been disinfected and bacteriologically tested in accordance with certain DEP rules. He certified that the certification was based upon an on-site observation. Importantly, Part IV, signed by Mr. Walker, also asserted that, "This certification does not necessarily constitute a certification of final completion of construction. Additional construction may be needed to satisfy all conditions of the construction contract documents." Part IV has an inked stamp impression upon it, which was also signed by Mr. Walker, which averred that the project was designed by the Mobile District of the U. S. Army Corps of Engineers and that the initials or signatures on the document were made within the scope of his employment. The fully executed Certificate of Completion was submitted to DEP by Ms. Bishop. Mr. Walker was not involved in submitting it. DEP received the Certificate of Completion and erroneously concluded that both the Cody Road Project, as well as the Independence Road project, had been completed. Accordingly, they closed out the project. Subsequently, a former employee in Mr. Walker's Office sent letters to government agencies asserting that due to Mr. Walker's negligence, impure water had been provided to personnel at Hurlburt Air Force Base. This was investigated. The investigation determined that impure water had not been provided to those using the potable water system on the base. Because of the erroneous assumptions made by DEP based on the Certificate of Completion, the permitting process was reviewed by DEP, the Corps, and the U. S. Air Force. It was determined that Hurlburt's permit certification process needed review because the erroneous conclusions drawn by DEP were the result of systemic problems with the procedures used. Following this review, Hurlburt Air Force Base developed a new Standing Operating Procedure, so that this type of error and miscommunication might be avoided in the future. This was sent to DEP on December 8, 2003. DEP revised their Certificate of Completion form effective August 28, 2003. The revision was not done solely because of the incident with the form used in the Hurlburt Field construction. When Mr. Walker signed Part IV of the Certificate of Completion, the only other part of the form that was completed was Part I. The information certified by Mr. Walker was entirely correct and truthful. Moreover, the language in Part IV specifically noted that, "This certification does not necessarily constitute a certification of final completion of construction." Dr. Chen H. Lin is a professional engineer with an ecology and environmental consulting firm. He is a graduate of a university in Taiwan with a Bachelor in Civil Engineering degree, has a Master in Civil Engineering degree from Auburn University, and a Ph.D. in Environmental Engineering from the University of Florida. He is licensed as a professional engineer in Florida, Alabama, South Carolina, and Michigan. He was accepted as an expert in civil engineering and in the permitting process with DEP in reference to water, waste-water, and waste-water treatment. It is Dr. Lin's opinion that Mr. Walker did not exercise due care and was negligent as a professional engineer because he filled out and signed Part IV of the Certificate of Completion at a time when Parts II and III were blank. Dr. Lin is a credible expert witness and his testimony is given great weight as to generally accepted standards applicable to professional engineers. However, his experience with specific military procedures is limited. Therefore, his opinion that Mr. Walker was negligent is rejected because of the factual context and procedures that existed at the time within the Corps and Base Civil Engineering at Hurlburt Field. James J. Mallett is a registered professional engineer in Florida and has been since 1963. He is also licensed in Alabama, Georgia, Tennessee, and Louisiana. He graduated from Auburn University in 1955 and received a Master of Civil Engineering degree from the University of Illinois. He also has a Master of Business Administration degree from the University of Alabama at Birmingham. Mr. Mallett has worked in the area of water system projects in many states and with the military and the U. S. Army Corps of Engineers since the late 1970s. He has worked on water projects at Hurlburt Field and is familiar with the processes used there. It is his opinion that it is standing operating procedure at Hurlburt to complete the Certificate of Completion in the manner in which the form at issue was completed. It is his opinion that Section IV does not imply that the project is completed and that if DEP had read the form closely they would have known that the Certificate of Completion addressed only Independence Road. Mr. Mallett believes the form is confusing. He does not believe that it was negligent for Mr. Walker to sign Part IV prior to the completion of Parts II and III. Mr. Mallett's testimony is more credible than the testimony of Mr. Lin as to the presence or absence of negligence, because Mr. Mallett is more familiar with the specific procedures used at Hurlburt Field and military construction projects in general. It is his opinion that Mr. Walker's actions, in the context of the procedures employed at Hurlburt Field, were entirely correct and were not negligent. This opinion is accepted as fact. Ms. Bishop's testimony provided the actual cause of the error, which was a result of the lack of communication among the Corps and the Base Civil Engineering Section and herself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Mr. Walker. DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 22nd day of September, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Pamela A. Moine, Esquire Assistant United States Attorney Northern District of Florida 21 East Garden Street, Suite 400 Pensacola, Florida 32502 Paul J. Martin, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5256 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact At all times relevant hereto, respondent, Jerry A. Jennings, held certified general contractor license number CG C020766 and certified residential contractor license number CR CO2OO84 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He has held the licenses since June, 1981 and February, 1982, respectively. Then the relevant events herein occurred, Jennings was operating a construction business under the name of Quality Control Construction in Port St. Lucie, Florida. He now resides in Casselberry, Florida and is no longer active in the construction business. Respondent formed Quality Control Construction (QCC) in January, 1981 and operated under that name as a subcontractor doing interior trim work on condominium projects in the Port St. Lucie, Florida area. Respondent did not qualify QCC with the State. In May, 1982, Jennings met with the project manager for Riverside Associates, Limited (Riverside), a development firm in Fort Pierce, Florida, and agreed to serve as general contractor and construction coordinator on a Riverside project in Fort Pierce. The job involved the renovating of an old three-story structure known as the Fort Pierce Hotel into an office building. The agreement was entered into by Riverside and respondent doing business as Quality Control Construction. Jennings applied for and obtained all applicable building permits on the job using his state contractor's license. Under the terms of the agreement Riverside agreed to make payments to QCC which in turn was responsible for insuring payment to the subcontractors and materialmen on the job. The work on the project was done in phases. The first phase was completed in January, 1983 when a partial certificate of occupancy was issued by the City of Fort Pierce. Because of a cash flow problem on the part of the developer, work on the next phase did not commence until June, 1983. At that time, QCC and Jennings agreed to finish the job and Jennings obtained all applicable permits. Although Jennings claims it did not include any electrical work, it is found that the last phase included a subcontract agreement by Jennings and White Electric Company (White) for White to do all remaining electrical work for a cost of $2,994. This is evidenced by the fact that Jennings obtained a permit on July 18, 1983 to do additional structural, electrical and air conditioning work on the project, and corrobarative testimony by a representative of White. On August 9, 1983, White submitted a bill to QCC for $2,994 representing the work performed by that subcontractor. Jennings forwarded the bill to Riverside, and on August 22, 1983, Riverside cut a check in that amount payable to QCC. The check contained the notation "For Payment to White Electric." The check was deposited by QCC into its bank account the following day. When White did not receive payment from QCC it contacted Riverside to obtain payment. A representative of Riverside attempted to locate Jennings but learned he had moved and his telephone was disconnected. After some investigation, Riverside determined that respondent had moved to Pinellas County. A certified letter was sent by Riverside to Jennings in October, 1983 requesting payment of the money due White but he did not reply. In November, 1983 a Riverside representative talked by telephone with Jennings who advised Riverside that he had financial problems and used the money due White to relocate to the west coast. Respondent did not timely notify petitioner of his change in address from Fort Pierce to Pinellas County. Riverside eventually set up a payment schedule and finally fully reimbursed White in April, 1984. To date, Jennings has not repaid Riverside. Jennings now resides in Central Florida, is in the process of filing a bankruptcy petition, and does not use his contracting licenses. Jennings claimed at hearing that Riverside never fully paid him for his services and therefore he was justified in retaining the $2,994 intended for White. However, he did not file a lien on the job, made no formal demands for the money allegedly due, and presented no documentation to support the claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I, II and III of the administrative complaint and that he pay a $1,000 administrative fine. It is further recommended that his two contracting licenses be suspended for one year, but if full restitution is made to Riverside, the suspension period be reduced to thirty days. DONE and ORDERED this 2nd day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of May, 1985. COPIES FURNISHED: W. Douglas Beason, Esquire 130 North Monroe St. Tallahassee, Florida 32301 Jerry A. Jennings 420 Copperstone Circle Casselberry, Florida 32707
The Issue The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes. POSITION OF PARTIES This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest. The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code. Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East. Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action. In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2. In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4. Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules. Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou. He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7. Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982. However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou. Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction. He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11. Falconer did not have a permit to alter mangroves. The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou. Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling. On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above. The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order. Respondent Falconer has complied with the requirements of the Consent Order. The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7. The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses: On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare. Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit. Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications. Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company. The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately $75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985. Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou. According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch. Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction. The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou. Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
Recommendation Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer. DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida. DONALD D. CONN 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 22nd day of January 1987. APPENDIX (DOAH Case No. 86-2462) Rulings on Proposed Findings of Fact filed by Sarasota County: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative and unnecessary. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11. Rejected since this is a conclusion of law. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 15 Adopted in Finding of Fact 20. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 21-22 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as irrelevant and unnecessary. 35 Adopted in Finding of Fact 23. 36-37 Rejected as irrelevant and otherwise simply a summation of testimony. 35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25. 44-46 Adopted in Finding of Fact 26. 47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence. 45-50 Adopted in Finding of Fact 25. 51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-9. Adopted in Findings of Fact 10-13. Adopted in Findings of Fact 14, 15. 5 Adopted in Findings of Fact 16-19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. 11-12 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20, 25. Adopted in Finding of Fact 20. 16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 20, 21, 25. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20-22. Adopted in Findings of Fact 22, 29. Adopted in Finding of Fact 20. Adopted in Finding of Fact 25. Adopted in Findings of Fact 23, 27. Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 5, 9. Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary. 12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22. Adopted in Findings of Fact 14-16. Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 24. 27-25 Rejected as irrelevant and unnecessary. 29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 26. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Wallace L. Storey, Esquire David M. Levin, Esquire P. O. Box 5 Sarasota, FL 33575 David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William M. Hereford, Esquire 1299 South Tamiami Trail, #1233 Sarasota, FL 33579 Dale Twachtmann Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
The Issue The issue presented for decision herein is whether or not Respondent's certified general contractor's license should be revoked, suspended, or otherwise disciplined based on conduct set forth in two Administrative Complaints filed herein dated March 14 and July 19, 1984.
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 hereby make the following relevant factual findings. At all times material hereto, Respondent was a certified general contractor in Florida and has been issued license number CGC 015834. 3/ (Petitioner's Exhibit 1) Petitioner is an agency of the State of Florida responsible for enforcing the provisions of Chapter 489, Florida Statutes, relating to the imposition of licensure standards and standards for the practice of contracting. During times material hereto, Respondent was a full-time employee of the Metropolitan Dade County Aviation Authority. At no time during his employment with the authority did Respondent advise the Dade County Aviation Authority that he was performing work outside the scope of his employment while on County time. When confronted with the results of an investigation undertaken by the Dade County Attorney's Office in June of 1983 with regard to his (Respondent's) possible violation of the Code of Metropolitan Dade County, Respondent resigned from his position with the County. (Tr. pages 101-102) DOAH CASE NO. 84-1298 During late February, 1983, Albert Kairy contracted with an unlicensed contractor for the closure of a carport at his residence located in North Miami, Florida. After observing Respondent's classified advertisement in a local flier, Kairy contacted Respondent with regard to preparing necessary blueprints for the enclosure. Kairy contracted with Respondent to prepare both the blueprints and to supervise the activities of the unlicensed contractor. The contract amount was $400. On February 25, 1983, Kairy received an owner/builder permit for the carport enclosure from the City of North Miami. (Tr. pages 7-10, 93) Subsequently, problems began to develop with work performed by the unlicensed contractor and Respondent persuaded Kairy to dismiss that individual and to retain him as the contractor. On March 7, 1983, Respondent entered into a contract with Kairy to construct a room addition to the residence. (Petitioner's Exhibit 2) The project was to be completed pursuant to plans and specifications approved by the City of North Miami. The contract called for a bedroom addition; an additional bathroom and a utility room. The contract included extending the carport wall approximately 101 feet. The contract price was $14,500 which included an advance of $2,500. On March 12, 1983, Respondent entered into a second construction contract with Kairy. (Petitioner's Exhibit 3, Tr. 19) The contract price was $15,000. Except for the increase in the contract price, Kairy was led to believe that the terms and conditions of the second contract were substantially similar to the contract previously executed by the parties on March 7, 1983. However, Respondent reduced the extension of the carport wall to 10 feet and Respondent did not inform Kairy of this reduction. (Tr. page 48) The contract called for draw payments as follows: $4,000 as a downpayment/advance; $3,000 upon completion of slab and block walls; $1,500 upon completion of piping and tie-columns; $2,500 upon completion of partition and drywall; $3,000 upon completion of the roof, and $1,000 upon completion of the job. (Petitioner's Exhibit 3) Respondent subsequently applied for a permit from the City of North Miami. The City of North Miami denied Respondent's application because Respondent failed to comply with the Dade County licensing requirements. (Tr. pages 21-22) Although Respondent acted in the capacity of a general contractor, he (Respondent) requested that Kairy obtain a owner/builder permit. Upon applying for the owner/builder permit, the City cancelled the original permit for the carport enclosure. (Tr. page 94) Kairy obtained the owner/builder permit pursuant to Respondent's assurances the permit would be properly transferred to Respondent's contracting license. The City provided Kairy with a "hold harmless letter" for Respondent to execute. (Petitioner's Exhibit 4) Upon presentation of that letter by Kairy to Respondent, Respondent refused to execute the "hold harmless letter." (Tr. pages 22-24) Subsequently, Kairy and Respondent executed an addendum to the construction contract. The addendum involved changing the enclosures roof structure from shingle to barrel tile. This change involved a price difference of $1,950 and increased the total contract price to $16,950. (Petitioner's Exhibit 5, Tr. pages 31-32) The addendum was executed after completion of the tie-beam and tie- column portion of the construction project. Pursuant to the terms and conditions of the March 12, 1983 construction contract, Kairy provided Respondent with the following amounts: $4,000 as an advance/downpayment on March 21, 1983; ($2,500 under the March 7 contract plus an additional $1,500); $3,000 upon completion of the slab and block work; $400 for preparation of the original set of plans; $500 toward tinted windows; $1,500 upon completion of the tie-beam and tie- column; $1,500 as an advance on the barrel tile roof; and $1,500 as an advance upon the completion of the roofs. (Petitioner's Exhibit 6) Kairy paid Respondent a total of $12,400 on the total contract price of $16,950 or approximately 73 percent of the contract price. Kairy timely remitted to Respondent installment payments for the slab and block work, tie- beam and tie-columns and advanced Respondent $3,000 towards completion of the roof. During April, 1983, Respondent commenced construction for enclosing the roof structure. Respondent ceased all construction activity upon being informed (by Kairy) that he would no longer pay Respondent in cash. (Tr. page 44) Respondent refused to accept payment in any form other than cash and offered no explanation, reason or excuse to Kairy for the cessation of work on this project. Kairy offered several reasons for his refusal to pay contract installments in cash. First, Respondent refused to execute the hold harmless letter provided by the City of North Miami and Respondent failed to properly supervise the construction activities by, among other things, disappearing from the project for a period of approximately three weeks. Finally, Respondent requested additional advances on the contract while the project was not progressing as scheduled. (Tr. pages 28, 44-46) Respondent did not return to the construction site after Kairy refused cash payments. On July 20, 1983, Respondent's roofing subcontractor filed a claim of lien against Kairy's property in the amount of $1,210. (Petitioner's Exhibit 8) Respondent has failed to satisfy the claim of lien and Kairy is in the process of satisfying that claim. (.Tr. page 54) Respondent also failed to pay an electrical subcontractor for services provided in the amount of $965. (Petitioner's Exhibit 7) Again, Kairy is currently in the process of satisfying that debt and Respondent refuses to honor that obligation. (Tr. 57) Kairy reimbursed the plumbing subcontractor in the amount of $675 after Respondent's personal check was returned due to insufficient funds. (Tr. page 62 and Petitioner's Exhibit 9) On April 1, 1983, the City of North Miami Building Department inspected the foundation and slab. On April 18, 1983, the Building Department inspected the tie-beam and columns. On May 6, 1983, the City of North Miami Building Department performed a tin-cap inspection on the enclosure roof. The City of North Miami Building Department estimated the actual construction completed when Respondent left the project and determined that it was approximately 70 percent complete. Completed construction included the slab, foundation, walls and tie-beam. Little interior construction work had been performed and drywall and partition walls were only partially complete. Kairy has either expended or will be required to expend the following sums in connection with the contract with Respondent: $12,400 - the amount paid directly to Respondent; $1,210 - the amount of the roofer's lien; $965 representing the amount owed to the electrician; and $675 representing the amount Kairy paid the plumbing subcontractor for a total of $15,250. 4/ Although Respondent completed approximately 70 percent of the actual construction, Kairy will correspondingly be required to expend approximately 90 percent of the contract price over and above monies paid to Respondent to complete this project. DOAH CASE NO. 84-3202 On May 12, 1983, the City of Miramar issued William Borden an owner/builder permit for the construction of a four-bedroom, three-bath home to be located in Miramar, Florida. (Petitioner's Exhibit 8) Between May and October, 1983, the Bordens performed the site preparation necessary for pouring the building's foundation and slab. After observing Respondent's classified advertisement in a local flier, the Bordens contacted Respondent with regard to the construction of their home. (Tr. page 16) On November 11, 1983, Respondent contracted with the Bordens to provide certain contracting services relative to the construction of their home. The Bordens contracted Respondent to pour the foundation and slab, perform the block work, frame and pour the tie-beam and tie-columns. (Petitioner's Exhibit 3, Tr. pages 18-20) The Bordens were to complete all of remaining construction of their home) The contract price was approximately $16,810. On October 17, 1983, the City of Miramar issued William Borden an owner/builder permit. (Petitioner's Exhibit 7) William Borden was to install the rough plumbing prior to Respondent pouring the foundation and slab. (Tr. 33) Due to certain time constraints, Respondent offered to install the rough plumbing. On October 25, 1983, Respondent received $475 from the Bordens toward installation of the rough plumbing. Respondent failed to subcontract the installation of the rough plumbing and failed to obtain the necessary building permit. On November 8, 1983, the Bordens provided Respondent an additional $470 representing final payment for installation of the rough plumbing. (Petitioner's Exhibit 4) On November 1, 1983, Mr. Bill Lafferty, chief building and mechanical inspector for the City of Miramar, performed an inspection of the rough plumbing work performed for the Bordens by Respondent. Lafferty determined that Respondent had failed to install the rough plumbing in accordance with provisions of the South Florida Building Code as adopted by the Broward County Code. As a consequence, Lafferty required Respondent to remove and reinstall the rough plumbing in accordance with applicable building code provisions. On November 7, 1983, Lafferty reinspected and approved the rough plumbing as reinstalled by Respondent. (Tr. pages 51-55) Respondent reinstalled rough plumbing at the Borden residence during the first week of November, 1983. Respondent did not obtain a building permit prior to reinstalling the rough plumbing. On November 16, 1983, the City of Miramar levied against Respondent a fee totalling $163.45. Part of that levy included $63.45 for renewal of the building permit and reinspection fee, and the remaining $100 represented a fine against Respondent for failing to properly obtain a building permit. (Tr. pages 58, 64 and Petitioner's Exhibit 7) On November 10, 1983, Salvatore Jenco, structural building inspector for the City of Miramar Building Department, inspected and approved the footing slab for the Borden residence. Subsequently, Respondent poured the concrete slab and foundation. Respondent did not obtain the requisite building permit prior to proceeding with construction. Respondent could not properly proceed with construction pursuant to William Borden's owner/builder permit. On November 11, 1983, inspector Jenco reinspected the concrete slab and foundation as poured by Respondent. As a result of that inspection, Jenco ordered all construction activities to be stopped at the Borden project. Specifically, Respondent materially deviated from the architect's plans and specifications by failing to pour a monolithic (continuous) slab and foundation for the Borden residence. As result of that deviation, the structural integrity of the building was compromised. (Tr. pages 71-73) Construction activity at the Borden residence was halted approximately three weeks while the Borden's architect developed a new set of blueprints. After the City approved the revised blueprints, Respondent began laying blocks and framing the tie-beam. Subsequently, Respondent requested Sunshine Concrete Company to commence pouring the tie-beam. The concrete company requested payment in cash due to the fact that Respondent had previously tendered a check to Sunshine Concrete Company which was returned due to insufficient funds. When informed of the concrete company's demands, the Respondent ordered the company to cease pouring the tie-beam. Upon being informed the tie-beam required a continuous pour, Respondent left the construction site and the Bordens were required to directly reimburse the concrete company. Respondent abandoned the project and has not returned to the construction site. Respondent owes the Bordens approximately $4,696 in reimbursed expenses. (Tr. pages 40-42) Respondent's Defense In DOAH Case No. 84-1298, Respondent did not offer any testimony to refute or otherwise rebut the allegations set forth in the Administrative Complaint. Respondent refused to be placed under oath when he made statements as to his position in Case No. 84-3202.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's certified general contractor's license be suspended for a period of two (2) years. Additionally, Respondent shall pay to the Construction Industry Licensing Board an administrative fine in the amount of $2,500. However, if Respondent provides the Construction Industry Licensing Board with sufficient evidence indicating settlement and satisfaction of the existing disputes between Mr. Albert Kairy and Mr. and Mrs. William Borden, the suspension shall be reduced to one (1) year after which time it is recommended that his license be reinstated. RECOMMENDED this 8th day of May, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985.
Findings Of Fact Respondent was registered with Petitioner as a pool contractor, Registration No. RP0017996, from January to June 30, 1974 (Petitioner's Composite Exhibit 2.) On February 22, 1974, Respondent entered into a contract with John G. Hartong, 813 Kings Bay Drive Southwest, Crystal River, Florida, to construct a screened swimming pool for the total price of $7,331.25. Construction of the pool began in July of 1974. Prior to that time, Respondent sent his foreman to the building department of Citrus County to obtain a building permit for the job because the county had issued such permits for work in Crystal River in the past. In actuality, the City of Crystal River began issuing such permits for construction work in that community commencing June 15, 1974. Neither Citrus County nor the City of Crystal River issued a permit for the work at the Hartong residence. Respondent assumed that his foreman had obtained the necessary permit and did not inquire into the matter further. City officials of Crystal River discovered the job in progress in late July. At that time, the gunite for the pool was about two-thirds completed and it would have been impossible to inspect unless everything was "pulled out". Respondent had been ill during this period and receiving daily medical checkups. As a result, he had entrusted his foreman with a great deal more responsibility than usual. Respondent normally had five to ten pool jobs in progress at the same time. In August, 1974, Respondent suffered a heart attack and was hospitalized. Work apparently ceased on the Hartong pool at this point or somewhat earlier and, after numerous attempts to contact Respondent as to completion of the work, Mr. Hartong secured another contractor to do so. However, this firm required that Hartong obtain a release from Respondent prior to taking over the work. Hartong therefore visited Respondent in the hospital and the parties settled the matter by executing a release. Prior to entering the hospital, Respondent had been on the Hartong job on only two different occasions and his first contact from city officials came just before he was hospitalized. After the parties had entered into their settlement, Respondent did no further work on the pool. In October, 1974, the building official of Crystal River advised Respondent by correspondence that he should obtain a permit for the work and furnished him an application for a local Certificate of Competency as a contractor. Although Respondent submitted an application for such a certificate, the city tabled the application pending his compliance with city ordinances concerning permit requirements for the Hartong pool. In view of his release from Hartong, Respondent did not pursue the matter any further. Hartong had been particularly disturbed by the fact that electrical wires from a switch on the wall of his house ran to the pool deck and when the switch was on, the wires were live. He was fearful that his children might put them in the water and create a shock hazard (Testimony of Pulver, Hartong, duPlanti, Respondent; Petitioner's Composite Exhibit 3, Petitioner's Exhibits 4 & 6.) About the middle of 1974, Respondent entered into a contract with Craig Marlett to build a pool. It was not established at the hearing as to whether this work was to be performed in Citrus County or within the city limits of Crystal River. Respondent testified that there was no building permit obtained for this work, but that he had subcontracted the job to his foreman and provided him with funds to obtain a proper permit. However, he did not check to see if one had been obtained (Testimony of Respondent, Pulver, Petitioner's Exhibit 7.) Approximately February 28, 1975, pursuant to a pool contract with Jack Freeman, Ocala, Florida, Respondent commenced work by excavating the hole on the site. He testified that he was not aware that he did not have a building permit when he began this work, but obtained it the following Monday. In fact, the application for a building permit to Alachua County was submitted on March 4, 1975, a Tuesday, and the permit was issued on March 10, 1975. Article XIV, Section V, Zoning Regulations for Alachua County, Florida requires that no building shall be constructed, reconstructed, altered or extended unless a building permit has been issued, indicating that such use complies with county requirements (Testimony of Respondent, Petitioner's Exhibits 5 & 8.) Respondent has been building swimming pools for approximately 10 years. His experience includes construction of approximately 700 pools (Testimony of Respondent.)
Recommendation That the allegations against Respondent be dismissed. DONE and ENTERED this 7th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire 217 South Adams Street Tallahassee, Florida James A. Shook, Esquire 415 North West First Avenue Post Office Box 924 Ocala, Florida 32670
