The Issue The primary issue for determination is whether Petitioner should be permitted to take the examination provided by Respondent to individuals seeking licensure as a certified residential contractor.
Findings Of Fact By certified mail letter dated September 8, 1989, Respondent's representative denied Petitioner's application to sitfor the residential contractor licensure examination. At all times pertinent to these proceedings, Petitioner has been licensed by Respondent as a certified underground utility contractor; a certified building contractor; a certified general contractor; a certified roofing contractor; and a certified plumbing contractor. At the present time, Petitioner's licenses as an underground utility contractor and a general contractor are inactive. Petitioner derives 60 percent of his income from consulting services and service as an arbitrator in negotiation and settlement of contracting industry disputes. Petitioner maintains that his credibility as a consultant and expert witness will be bolstered as a result of completing the specific examination for licensure as a residential contractor. Further, he maintains that possibilities of his selection as a arbitrator will also be enhanced as the result of such examination and licensure. Petitioner is also an instructor for an examination preparation organization designed to prepare individuals to pass various state and local contractor examinations, including the examination required for licensure as a certified residential contractor. Respondent's denial of Petitioner's application was predicated upon Petitioner's existing licensure status as a building contractor, as defined in Section 489.105(3)(b), Florida Statutes. As stated by Respondent's representative in the September 8, 1989 letter, Petitioner's statutory scope of work asa licensed building contractor "includes and surpasses that of a residential contractor as defined by Section 489.105(3)(c), Florida Statutes" and therefore submittal of an application for a residential contractor license did not serve the purpose of determining Petitioner's qualification for that license. An applicant who successfully completes the examination offered by Respondent for licensure as a general contractor has essentially demonstrated competency in the areas covered by Respondent's examinations for builder and residential contractor licensure. Such an applicant may be considered to have completed the examinations for competency to hold those licenses. At the final hearing, the parties stipulated that Respondent has reconsidered its denial, in part, and will issue a residential contractor license to Petitioner. While Petitioner will not be permitted to take the examination for residential contractor licensure, his previous test score from the general contractor examination will be used, by Respondent, to document Petitioner's competency as a residential contractor and to comply with statutory requirements 1/ for licensure that competency be ascertained by the applicant's completion of the appropriate examination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon issuance of a residential contractor's license to Petitioner, a final order be entered dismissing, as moot, any further proceedings in this cause. DONE AND ENTERED this 12th day of September, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1990.
Findings Of Fact Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983. The property is zoned CG and has been so zoned for many years without change to the present. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately 40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line 100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure. There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay. Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.
Findings Of Fact At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0034055. At all times material to the Administrative Complaint, the Respondent, Joseph H. Rayl also was licensed in the State of Florida as a certified roofing contractor holding license number CC C035625 and as a certified building contractor holding license number CB C033206. At all times material to the Administrative Complaint, through the time it closed its doors in November, 1987, the Respondent was the sole qualifying agent, owner, and president of Unique Construction, Inc. (Unique). On or about July 19, 1985, Mrs. Anna M. Adams contracted through a salesman for Unique to reroof the flat roof of her house in St. Petersburg Beach for $1076. Mrs. Adams contracted with Unique because the company offered a five year warranty on workmanship. In August of 1985, Unique reroofed the flat roof of Mrs. Adams' house. Mrs. Adams' roof continued to leak. Mrs. Adams called Unique every Monday and advised that her roof continued to leak. Repeated promises were given by Unique that her roof would be repaired. Unique responded to Mrs. Adams calls for repairs on or about February 18, 1986. Mrs. Adams' roof continued to leak, and she notified Unique repeatedly. After Mrs. Adams complained to Consumer Affairs in Tampa, Unique again attempted to repair the roof on April 30, 1987. Mrs. Adams left her home after the April 30th repairs by Unique, but when she returned in August, 1987, the roof had continued to leak. The interior of Mrs. Adams' home was damaged, including, but not limited to, ceiling tiles falling down and her floor and furniture getting wet. Mrs. Adams repeatedly telephoned Unique from August 5, 1987, advising of the leaking roof. Mrs. Adams sought the assistance of the Better Business Bureau. On September 15, 1987, Unique again attempted to repair the roof. In January, 1988, Mrs. Adams hired another roofing contractor to repair her entire roof, which included reroofing the shingle roof over the main part of her house, for $2100. No permits were obtained nor inspections called for by Unique for Mrs. Adams' job. Unique had continuous access to Mrs. Adams' home to repair her home. The Respondent repaired the interior of Mrs. Adams' house after he received notice of the complaint from Department of Professional Regulation in February, 1988. Prior to the hearing, the Respondent had not seen the contract Unique had with Mrs. Adams. The Respondent had no knowledge of the Adams' job until receiving the Department of Professional Regulation complaint. Until February, 1988, the Respondent had not seen or examined Mrs. Adams' roof. Until February, 1988, the Respondent had never spoken with Mrs. Adams. Despite Mrs. Adams repeated requests to speak to the Respondent when she called Unique, the requests never were passed along to the Respondent. During the late part of 1985 and early part of 1986, Unique had five locations and did 600-700 jobs a year. The Respondent could not personally supervise all the jobs and relied on supervisors. The Respondent placed authorization letters in the building departments so that his office managers could pull permits for Unique. The Respondent instructed his office managers to pull permits and call for inspection on all jobs. But he did not adequately monitor the operations of his Tampa office to assure that his instructions were followed in the case of the Adams job. Failing to obtain building permits and failing to call for inspection constitutes improper supervision as well as violations of local building codes. The cause of the leak in the Adams roof was in the shingle roof over the main part of the house, not in the flat roof Unique put on or in the "tie- in" between the flat roof and the shingle roof. A roofer is responsible to advise the customer of the cause of continuous leaks. Unique did not advise Mrs. Adams that repairing her main roof was required to stop the leaks. The Respondent previously has received letters of guidance from the Construction Industry Licensing Board on October 5, 1987, for violations of Florida Statutes 489.129(1)(d) and 489.129(1)(m).
Recommendation Based upon the Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order (1) finding the Respondent, Joseph H. Rayl, guilty of violating Section 489.129(1)(j) by failing to supervise the activities of his company as required by Sections 489.119 and 489.105(4), Florida Statutes (1987); (2) fining him $1000; and (3) suspending his license for three months. DONE and ENTERED this 9th day of February, 1989, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 9th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3299 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: 1. Accepted but unnecessary. 2.-24. Accepted and incorporated to the extent necessary and not subordinate. 25. Accepted; subordinate to facts found. 26.-29. Rejected as subordinate to facts contrary to those found. The evidence did not prove that the leak was at the tie-in or any other part of the work Unique did in re-roofing the Adams' flat roof. Unique did not fail to honor its guarantee on the work it did. Accepted; subordinate to facts found. Rejected as not proven. 32.-33. Accepted and incorporated. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William E. Whitlock, III, Esquire Donald L. Tucker, Esquire 16 East 3rd Avenue Tallahassee, Florida 32303 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent, Michael N. Kuvin (Kuvin), was at all times material hereto a certified general contractor in the State of Florida, having been issued license numbers CG CB07136 and CG C007136. Kuvin, under license number CG CB07136, was the qualifying agent for Gerald S. Krigel Corporation (Krigel Corp.). During the years 1904 and 1985, Krigel Corp. acted as the general contractor for Lomar Communities Inc. (Lomar), the owner/developer of Sugarwood and Heritage Park subdivisions, Dade County, Florida 1/ Gerald Krigel was the president of Krigel Corp. and Lomar. While the Sugarwood and Heritage Park subdivisions were under development, Kuvin did not supervise, direct, manage, or control the contracting activities of Krigel Corp., nor did he supervise, direct, manage, or control any of its construction activities in the subdivisions. He did, however, meet with Mr. Krigel twice a year, at which times he signed and delivered to Mr. Krigel an indeterminate number of blank building permit applications. On each occasion, Kuvin was paid $1,500. 2/ In mid-December 1985, Lomar and Krigel Corp. closed their offices. In January 1986, Lomar filed a petition in bankruptcy. The Freedman Residence On January 8, 1984, Marc Freedman and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Sugarwood subdivision. The agreement, as subsequently modified on May 11, 1984, called for Lomar to build the house in accordance with an agreed floor plan and deed it to the Freedmans in exchange for an agreed price of $106,337.50. On June 7, 1984, a building permit application was submitted to the Dade County Building and Zoning Department (Dade County) to construct the Freedman house. The application listed Lamar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 10, 1984, and a certificate of completion was issued on October 3, 1984. A closing was held on the Freedman purchase in late October 1984. Certain construction deficiencies existent on closing or subsequently discovered have not, however, been rectified despite demand of Lamar and Kuvin. 3/ The deficiencies include a backyard which is prone to flooding because of poor drainage, a pool deck area which has cracked into 14 separate pieces because not scored and which floods because not graded; interior dry wall which has cracked and buckled, and cracked tiles in the bathroom. The Florez Residence On February 23, 1985, Maria Florez entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to Ms. Florez in exchange for an agreed price of $69,500. Under the terms of her agreement with Lomar, Ms. Florez was obligated to pay an initial deposit of $1,000, and an additional deposit of $2,500 upon approval of her application for a mortgage loan. Ms. Flores paid Lomar the initial deposit of $1,000, the $2,500 deposit upon approval of her application for financing with Pan American Bank, as well as the additional sum of $1,136 to add an air vent in the bathroom and to upgrade the carpeting. On June 25, 1985, a building permit application was submitted to Dade County to construct the Florez unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 5, 1985, and construction apparently completed in November 1985; however, Dade County has not yet issued a certificate of completion. No closing was ever scheduled for the Flarez unit. Upon learning of Lomar's bankruptcy, Ms. Florez filed a claim in the bankrupt's estate. To date, that claim has not been resolved. The Cevallos Residence On March 13, 1985, Pedro Cevallos and his wife entered into an agreement with Lamar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to the Cevallos in exchange for an agreed price of $69,900. Under the terms of the Cevallos' agreement with Lamar, they were obligated to pay an initial deposit of $500, and an additional deposit of $3,000 upon approval of their application for a mortgage loan. The Cevallos paid the deposits of $3,500, as well as an additional $190 to add an air vent in the bathroom. On June 6, 1985, a building permit application was submitted to Dade County to construct the Cevallos unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued June 13, 1985, and a certificate of completion was issued on November 14, 1985. The Cevallos had a walk through inspection of their unit and noted no deficiencies. A closing never occurred, however, because of Lamar's bankruptcy. The Cevallos are a claimant in the bankrupt's estate, but that claim has not been resolved. The Sujansky Residence On October 21, 1934, James Sujansky and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $64,900. On April 12, 1935, a building permit application was submitted to Dade County to construct the Sujansky unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on April 26, 1985, and a certificate of completion was issued on October 9, 1985. On October 22, 1985, a closing was held on the Sujansky unit. At closing, the Sujanskys received a no-lien affidavit, a builder's warranty from Lomar, and Lomar's assurances that the deficiencies noted on the punch list would be corrected. Lomar failed or refused to correct the following deficiencies: the yard was prone to flooding because of poor drainage, cracked tiles were noticeable in both bathrooms and the kitchen, the dry wall was not sanded or painted, the exterior walls contained cracks in the stucco finish, the window trim rattled, the front door had gaps around it, the kitchen cabinets had missing or unsecured handles, and the formica was peeling off the kitchen counter. Subsequent to closing, the Sujanskys received a claim of lien against their property from GDG Services, Inc., B.Q. Interiors Contractors, and Bird Plumbing Corp. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390, but failed to establish the validity or amount of the remaining claims. The Frisby Residence On March 25, 1985, Thomas Frisby and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $69,000. On June 6, 1985, a building permit application was submitted to Dade County to construct the Frisby unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on June 13, 1985, and a certificate of completion was issued on December 31, 1985. On November 3, 1985, a closing was held on the Frisby unit. At closing, the Frisbys received a no-lien affidavit and a builder's warranty from Lomar. Subsequent to closing, the Frisbys noted numerous deficiencies which Lomar failed or refused to remedy. These deficiencies included a back yard prone to flooding because of poor drainage, a bedroom wall that leaked and caused the wall and carpet to mildew, chipped and cracked sidewalks, and an uneven livingroom floor. Additionally, the Frisbys received a claim of lien against their property from B.Q. Interiors Contractors, S&R Industries, Inc., and Val's Air Conditioning, Inc. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390 and that S&R Industries was owed the sum of $632.50, but failed to establish the validity or amount of the lien claimed by Val's Air Conditioning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Michael N. Kuvin's certification as a general contractor, license numbers CG CB07136 and CG C007136, be REVOKED. DONE AND ORDERED this 1st day of April, 1937, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 1st day of April, 1987.
Findings Of Fact At all times relevant hereto Ernest Brown was licensed by the Pinellas County Construction Licensing Board as a Masonry Flat Work Specialty Contractor and held License No. C-5015. On July 20, 1990, Respondent entered into a contract with Kali Gillespie (Exhibit 1) to build a two story garage addition to her home at 7901 Garden Drive North, St. Petersburg, Florida. The work was commenced in a timely manner and proceeded to completion until the stucco was applied which was supposed to match the color of Gillespie's house. As a Masonry Flat Work Specialty Contractor, Respondent is authorized only to contract for flat masonry construction such as driveways, slabs, etc. The work of pouring footings, laying blocks, framing and pouring lentils is work authorized to be performed by a Masonry Specialty Contractor. Respondent is not licensed as a general contractor who would be authorized to subcontract work for which the general contractor may not be qualified or licensed to perform. Other than the pouring of the slab for the garage floor and stuccoing the outside of the garage, all of the work for which Respondent contracted was beyond that authorized to be performed by a Masonry Flat Work Specialty Contractor. Only an occupational license is required to apply stucco. Respondent testified that he subcontracted with a licensed Masonry Specialty Contractor for the work that Respondent was not licensed to perform and that everything went well until the stucco was applied. Respondent further testified that he told Mrs. Gillespie that he would attempt to match the stucco with the color of her house, but could not guarantee a good match. In May or June 1990, Respondent contracted with James J. Da Silva to replace the driveway at Da Silva's residence. The work was completed in June 1990. Subsequent to the completion of the work, Da Silva was notified by the City of St. Petersburg Permitting Department that a permit was required for the driveway because part of this work was performed on the City's right of way. To obtain the after the fact permit, Da Silva was required to pay twice the normal fee of $130. Respondent gave no reason at hearing for his failure to obtain the permit. Both of these customers of Respondent suffered monetary damage due to Respondent's actions.
Recommendation It is Recommended that a Final Order be entered finding Ernest Brown guilty of the allegations made in the Administrative Complaint and issuing him a written reprimand and an administrative fine of $500. RECOMMENDED this 17th day of January, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. COPIES FURNISHED: Sarah Richardson, Esquire Assistant County Attorney 315 Court Street Clearwater, FL 34616 Ernest Brown 4727 9th Avenue South St. Petersburg, FL 33711
Findings Of Fact At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772. On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or $9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or $19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made. The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted. From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started. Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6. On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block. Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above. When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards. Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks. Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5. Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards. Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry. These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result. The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom. Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging. Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe. Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general. Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day. He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders. Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed. Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a certified general contractor be suspended for six months, that he pay an administrative fine of $500.00, and that he be reprimanded. RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1718 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER Petitioner failed to number Findings of Fact submitted and included them in a section entitled FINDINGS OF FACT AND CONCLUSIONS OF LAW. However, as best as can be determined: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a Conclusion of Law. Rejected as a restatement of testimony. Rejected as a restatement of testimony. Accepted. Rejected as a Conclusion of Law. Accepted as evidence of prior disciplinary action. BY THE RESPONDENT None submitted. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard T. Warnky 4924 S. W. 11th Court Cape Coral, Florida 33904 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
