The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
The Issue Whether Petitioner's application for licensure as a structural engineer should be approved. This case arose as a result of a determination by Respondent that Petitioner had not passed the reexamination for licensure as a structural engineer which was held on October 25, 1985. Petitioner contends that he was disadvantaged by the time allowed to study for the examination, the time taken to publish the results of the examination, the esoteric nature of a steel beam problem, and the design method required for a reinforced concrete structure. Respondent takes the position that Petitioner was not so disadvantaged, but that even if he were, it is not sufficient to increase his grade to a passing score. The respective contentions of the parties were embodied in a pre-hearing stipulation which was received in evidence as Joint Exhibit 1. Petitioner appeared at the hearing unaccompanied by legal counsel and was therefore advised of his rights and the procedures to be employed in the administrative proceeding. He indicated that he understood his rights and such procedures, and elected to represent himself. During the course of the hearing, Petitioner testified in his own behalf and submitted six exhibits which were received in evidence. Respondent presented the testimony of James A. Power, a consulting structural engineer and Allen R. Smith, Executive Director of the Board of Professional Engineers. In addition, Respondent submitted six exhibits in evidence, which were admitted. Petitioner's application for the Professional Engineer's Reexamination was received in evidence as Hearing Officer's Exhibit 1. The parties were given until September 2, 1986, in which to file any posthearing submissions. However, Respondent failed to file any such submission and Petitioner's written argument was untimely filed on September 3, 1986.
Findings Of Fact By application received by Respondent on August 13, 1985, Petitioner Max E. Lambie applied for the Professional Engineer's Reexamination to be held on October 25, 1985. The application reflected that Petitioner had previously passed the "Fundamentals" part of a previous examination on April 19, 1985, and that his application was to take the "Principles and Practice" part for reexamination in the discipline of structural engineering. By a letter dated August 21, 1985, Respondent acknowledged receipt of the application and applicable fees. (Hearing Officer's Exhibit 1) Petitioner thereafter received from Respondent's Office of Examination Services, a "Notice to Appear for October 24-25, 1985, Professional Engineer (PE) Examination." The notice included information that Part II of the examination was to be based on Professional Principles and Practice, and devoted primarily to the field of the applicant's ability to apply acceptable engineering practice to problems which are representative of the candidate's discipline. It further stated as follows: In the Principles and Practice portion of the examination, candidates are required to solve eight (8) problems; four (4) in the morning session and four (4) in the afternoon session, drawn from a test pattern generally set forth as follows: (H) STRUCTURAL: Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces. The notice also stated that a passing grade on Part II of the examination was defined as a grade of seventy (70) or better, and that within approximately three (3) months after the examination date, the applicant would receive written notification of the examination results. (Petitioner's Exhibit 1) By a Memorandum from Allen R. Smith, Jr., Director, Board of Professional Engineers, dated September 20, 1985, applicants applying for licensure by examination in the structural engineering discipline were advised that the examination was now given once a year and that the schedule was October 24 and 25, 1985, and October 23 and 24, 1986. The Memorandum further noted that the Board of Professional Engineers had amended Rule 21H- 21.02, Florida Administrative Code, with regard to the discipline of structural engineering to require that applicants were required to answer questions dealing specifically with structural engineering, and that applicants must answer four out of six questions on the a.m. and four out of six questions on the p.m. portions of the Principles and Practice examination. Enclosures to the Memorandum reflected the subject matter and numbers of the examination questions. A copy of Chapter 21H- 21 of the Respondent's Rules, dated July, 1985, was attached to the Memorandum. Rule 21H-21.02(2) provided in part as follows: Part two of the examination shall be based on Professional Practices and Principles and shall be devoted primarily to the field of the applicant's finding solutions to problems designed to test the applicant's ability to apply acceptable engineering practice to problems which are representative of his discipline. Applicants for registration must select one of the listed specializations in which to be examined. . . . In Part Two of the examination the applicant will usually be required to solve from seven to ten problems which the applicant may choose from approximately twenty problems drawn from a test pattern generally set forth as follows: (h) STRUCTURAL--"Structural Concrete, Structural Steel and Light Metal, Bridges or Bridge Elements, Wood, Masonry, Lateral Forces." Finally, the Memorandum included an enclosure entitled "Design Reference Codes, Standards and Manuals" which listed various manuals and codes to be used as references for the review and use of applicants. The Southern Standards Building Code, Uniform Building Code, and Basic Building Code, had an asterisk after their listings. A note at the bottom of the listing stated "Use code with which you are familiar and/or currently using in your practice." One of the listings also was "Building Code Requirements for Reinforced Concrete, ACI 318- 83." It was not followed by an asterisk on the listing. (Petitioner's Exhibits 2-3) Petitioner took the October, 1985, examination which was a national examination produced by the National Council of Engineering Examiners (NCEE) and available for certification or licensure throughout the United States. Respondent's Rule 21H-21.01 provides that the examination "shall be provided by the National Council of Engineering Examiners (NCEE)." (Stipulation (Joint Exhibit 1), Petitioner's Exhibit 2, Testimony of Petitioner) Petitioner did not receive his examination grades until March, 1986. The uniform grade notice, dated March 21, 1986, advised him that his examination grade was 66.3 which was failing and that a minimum passing score was 70. The reason for the delay in mailing the examination scores was that one of Respondent's graders for a specific portion of the examination was unavailable due to illness or accident. (Testimony of Smith, Respondent's Exhibit 5) At the hearing, Petitioner testified that the late notification by Respondent that only questions on structural engineering would be on the October examination disrupted his preparation and left him insufficient time to adequately prepare for the examination. He testified that in prior examinations it was possible for a candidate to select questions not specifically related to structural engineering, such as economics, and that he had to "scramble" to obtain texts to study for new subjects. He also claimed that the note at the bottom of Respondent's Design Reference Codes, Standards and Materials (Petitioner's Exhibit 3) which had accompanied Respondent's September 20, 1985 Memorandum to applicants (Petitioner's Exhibit 2) was misleading in that he construed the note to permit him to use whatever building code he was familiar with, and that it was not until he arrived at the examination that he found out that he had made the wrong assumption in that regard. The facts show, however, that the prior examination taken by Petitioner was not solely in the structural engineering discipline, but was a Civil/Sanitary/ Structural examination. Further, Respondent's note on the listing of reference manuals clearly indicated that it applied only with respect to the Southern Standards Building Code, Uniform Building Code, and the Basic Building Code, and not to the other codes and manuals listed therein. (Testimony of Petitioner, Petitioner's Exhibits 2- 3, Respondent's Exhibit 3) Petitioner claimed that the examination contained questions requiring the application of building code requirements for reinforced concrete, ACI 318- 83, which had only been in effect for the past two years and was not familiar to applicants of his age group and past experience. He contended that he had to hurriedly prepare himself utilizing unfamiliar texts that had become available only a few months prior to the examination. ACI 318-83 deals with a concept called "ultimate strength design," but Petitioner was familiar with an older concept called "working strength design." He further claimed that the South Florida Building Code was based entirely on the latter concept. However, expert testimony presented by the Respondent showed that the ultimate strength design concept had been part of the ACI code since 1956 and always had been required in designing prestressed concrete members. He also testified that working strength design is still permitted as an alternative concept in ACI 318-83, that both the South Florida Building Code and Standard Building Code require conformance to ACI 318-83, and that such requirements have been in both codes for at least 25 years. Accordingly, it is found that Petitioner's claims that he was prejudiced by the use of ACI 318-83 in problems on the examination are without merit. In this regard, it is also noted that the April 19, 1985 examination required the use of the latest ACI code and one question required the use of the ultimate strength method. (Testimony of Petitioner, Tower, Respondent's Exhibits 1-6) Respondent also contended at the hearing that question no. 275 of the October, 1985 examination contained a typographical error which required assumption of a different criterion for the solution, and that his expenditure of time in resolving the situation resulted in a score of five out of a possible ten. However, no evidence was presented that his solution was incomplete or that the score awarded by the graders was incorrect. Petitioner brought the typographical error to the attention of the Board by a letter stating that the error induced "extraordinary anxiety which contributed to a loss of concentration" and asked that his observation be passed on to the NCEE. At the hearing, he claimed that past typographical errors on examinations had resulted in adjustment of score points and that such should have been done with regard to the error which he pointed out to Respondent. Again, however, it is found that there was insufficient evidence presented to establish that the error noted by Petitioner had affected the grading of his solution. (Testimony of Petitioner, Petitioner's Exhibits 5-6, Respondent's Exhibits 2, 6.) Petitioner's claim that the late grading of the examination precluded him from applying for the Spring, 1986 examination is found to be irrelevant to the question of his failure of the October, 1985 examination. Further, his complaint that the new structural examination is used only in six states and that Florida was one of the first states to adopt the new examination provides no grounds for relief. The Board's purpose in changing the examination format was due to the belief that structural engineers should be more qualified in that particular discipline. In any event, the new Board rule established such format and no challenge to the rule was filed by Petitioner. (Testimony of Petitioner, Smith)
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, John W. Hull, held certified building contractor license number CB CO28961 issued by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was qualifying agent for, and doing business as, John W. Hull Construction in Inverness, Florida. On September 15, 1990, respondent entered into a contract with Robert and Mary E. Griggs to construct a single-family residence at 7118 East Gospel Island Road, Inverness, Florida, for an estimated cost of $130,000. The contract called for respondent to be responsbile for all materials and work on the project and to build the residence in compliance with the county building code. In this regard, respondent pulled the permit for the job and was the supervising contractor. The project was completed around mid-May 1991 and a certificate of occupancy was issued by Citrus County (County). After the Griggs paid for the work in full, they took occupancy of the premises on May 17, 1991. On September 21, 1993, the Griggs noticed a water leak in the guest bathroom. Mary Griggs immediately contacted respondent and was told to call the subcontractor who installed the roof, Lloyd Vann. She did so and Vann came to the house the next morning and acknowledged the shingles were installed "incorrectly." He returned on October 4, 1993, and placed some tar under the shingles. While doing so, Griggs says that Vann "ripped a lot of the shingles." When the leaks persisted, including at least seven separate leaks during a single rain storm, Mary Griggs requested two other roofers to inspect her roof. They corroborated Vann's acknowledgment that the roof was "incorrectly" installed. On January 18, 1994, Griggs again contacted respondent and told him she needed a new roof since it violated building code requirements. He responded that there were no building code standards applicable to the roof. Mary Griggs persisted with her complaint and eventually arranged a meeting with a County building inspector, Henry Pann, respondent and Vann on September 30, 1994. However, Griggs was told not to speak at the meeting but rather to listen to the other participants. As a result of that meeting, Mary Griggs was contacted by respondent just after a heavy rain on October 3, 1994, to see if she still had any roof leaks. Not surprisingly, she responded in the affirmative and respondent visited the premises the next day. After concluding that the leaks were caused by water seeping through the sides of the chimney, respondent sealed and repainted the chimney area the following day. On November 15, 1994, the Griggs again experienced "heavy leaks" in their home during a heavy rain storm. After unsucessfully attempting to contact respondent, Mary Griggs finally reached Vann, who eventually replaced some shingles on November 23, 1994. However, as of the time of hearing in late July 1995, the Griggs still had water leaks in their home every time it rained, some of which were "worse" than before any repairs were made. Photographs received in evidence, and deposition testimony by inspector Pann, confirm numerous water stains throughout the house. Inspector Pann established that the roof violated the County's building code in at least four respects. First, the roof was in violation of section 103.2.4 by having inadequate fastener lengths, that is, respondent's agent had used staples instead of large head galvanized nails as required by the code. Thus, the fasteners could not penetrate through the shingle and into the lumber deck. Second, section 103.2.3 was contravened because the rakes and eaves were not cemented. Third, section 100 was violated because the drip edge was applied over the felt topping, a procedure which also contravened the manufacturer's specifications. Finally, the roof workmanship violated sections 100 and 100.1 by having an improper staple installation. The manufacturer of the asphalt shingles used on the Griggs' roof, Georgia-Pacific, has published a brochure containing easily understood instructions on how to install asphalt shingles. Even so, Vann ignored these plain instructions in a number of respects when he installed the Griggs' roof. For this reason, it can be reasonably inferred that respondent, through his agent Vann, deliberately violated local building codes. To correct the code violations and eliminate the leaks, and to make the roof comparable to that which the Griggs contracted for, it will be necessary for the Griggs to replace the roof, which will cost $7,020.00. In addition, it will cost the Griggs $500.00 to seal and paint the ceiling areas discolored by the leaking water. Respondent says that when the roof was installed in 1991, he followed applicable building codes "as much as they were being followed" at the time. While he defended his roofing subcontractor as being "a very reputable roofer," respondent nonetheless took the position that the roof was Vann's responsibility "to make good," and not his. He does not deny that the Griggs' roof is leaking, but says the leaks are "very small" and suggests that the Griggs' claims are exaggerated. At hearing, respondent suggested that the problem could be resolved by Mary Griggs calling Vann, who would "be there within a day or two" to make the repairs, a claim belied by the record. In any event, respondent is unwilling to replace the entire roof, a measure deemed to be necessary by the County inspector and other contractors. In light of respondent's continued failure to take appropriate measures to fix the roof, it is found that respondent is guilty of misconduct in the practice of contracting. Through a late-filed affidavit, petitioner established that it incurred $3,012.18 in costs in prosecuting this action. This amount was not challenged. By law, the Board is entitled to recover this amount from respondent should it prevail in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding respondent guilty of violating Sections 489.129(1)(d) and (m), Florida Statutes (Supp. 1990), imposing an administrative fine of $2,250.00, requiring that he pay restitution in the amount of $7,520.00, and requiring that he pay $3,012.18 for costs incurred by the Board in investigating and prosecuting this action. The fine, restitution and costs shall be repaid by a date certain to be established by the Board. DONE AND ENTERED this 8th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0541 Petitioner: The proposed findings submitted by petitioner have generally been adopted in substance in this Recommended Order. COPIES FURNISHED: Gary L. Asbell, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. John W. Hull 95495 Berkshire Avenue Inverness, Florida 34452-9005 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for determination in this proceeding is whether Petitioner should receive credit for any of the 15 challenged questions in two parts of the certified general contractors examination given in June, 1993.
Findings Of Fact Petitioner took the general contractors examination given on June 29- 30, 1993. The examination consisted of three parts. The minimum score required to pass each part was 70. Petitioner passed the Business and Finance part of the examination with a score of 70. Petitioner failed the other two parts of the examination. He received a score of 61 on the Contract Administration part of the examination and a score of 67 on the Project Management part of the examination. Petitioner challenged eight questions on the Contract Administration part of the examination and seven questions on the Project Management part of the examination. The part of the examination on which each question appeared, the question number, the correct answer, and the answer chosen by Petitioner are as follows: EXAM PART QUESTION CORRECT ANSWER PETITIONER'S ANSWER Contract Admin. 2 B C Contract Admin. 5 D A Contract Admin. 10 D C Contract Admin. 11 C D Contract Admin. 13 C B Contract Admin. 20 C D Contract Admin. 22 C D Contract Admin. 37 B D Project Mgmt. 7 C D Project Mgmt. 9 D C Project Mgmt. 10 C A Project Mgmt. 11 B C Project Mgmt. 13 B A Project Mgmt. 23 D A Project Mgmt. 37 A D For each of the foregoing questions, the correct answer was the answer identified by Respondent and not the answer chosen by Petitioner. Petitioner presented no competent and substantial evidence to support his answers. The challenged questions were clearly and unambiguously worded. The challenged questions contained enough correct information to allow the candidate to select the correct response. The correct response for each of the challenged questions was supported by approved reference materials. The correct response did not require knowledge which was beyond the scope of knowledge that reasonably could be expected from a candidate for licensure. All current techniques were taken in account when the correct response was determined by Respondent. The examination was open book. Petitioner was allowed to refer to the Standard Building Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's challenge to the questions at issue in this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of April, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1994. COPIES FURNISHED: Richard Hickok Executive Director Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Vytas J. Urba, Esquire William M. Woodyard, Esquire Department of Business and Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, FL 32399-0792 Mr. Behzad Khazraee 142 Tollgate Trail Longwood, FL 32750
The Issue The issue presented is whether Petitioner should receive additional credit for his answers to three questions on the October 1991 Certified Building Contractor Examination.
Findings Of Fact Petitioner received a score of 68 on Part I of the Certified Building Contractor Examination administered in October 1991. That score is less than the minimum passing score required. Part I of that examination consisted of questions relating to business and financial management. Petitioner has challenged three of the questions contained in that portion of the examination. Petitioner chose answer "A" as the correct answer to question numbered 36. At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "B," the answer chosen by the Department, was the only correct answer. 4. Petitioner chose answer "B" as the correct answer to question numbered 35. At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "D," the answer chosen by the Department, was the only correct answer. 5. Petitioner chose answer "A" as the correct answer to question numbered At the final hearing, Petitioner agreed that his chosen answer was not correct and that answer "C," the answer chosen by the Department, was the only correct answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered determining that Petitioner failed to achieve a passing score on Part I of the October 1991 Certified Building Contractor Examination. DONE and ENTERED this 5th day of August, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 5th day of August, 1992. Copies furnished: Vytas J. Urba, Assistant General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. Jose F. Montano 5888 Southwest 31st Street Miami, Florida 33155 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
