Findings Of Fact Petitioner is the state agency charged, in conjunction with the Land Surveying Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapter 472, 455 and 120, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Administrative Complaint, Respondent, Lars Dohm, was licensed as a land surveyor in the State of Florida, having been issued license number LS0002358. Nona Chubboy, in January 1989, was the owner of a lot described as Lot 25, Block J, Tierra Verde, Unit 1, Fourth Replat, Pinellas County, Florida, also known as 727 Columbus Drive East, Tierra Verde, Florida. Ms. Chubboy intended to build a dwelling on the lot, and secured building plans for the dwelling. She was to be her own contractor. In early 1988, she brought the building plans to the Respondent, and asked him to stake out only the lot at that time. Respondent copied the dimensions of the lot and dwelling from the building plans, and returned them to her. In early 1989, Respondent was retained to do a stakeout survey of the house and lot. Respondent requested that a site plan be prepared. Mrs. Chubboy secured it from the house designed, and delivered it to the Respondent. 6 The site plan shows a set back of 20 feet to a series of dotted lines, then a total of the length of the building from front to back of 63 feet, and footage of 37 feet to the rear of the property, which totals the exact distance of the length of the lot, 120 feet. With the site plan and the dimensions of the foundation of the building in his possession, the Respondent proceeded to stake out the foundation of the dwelling on or about January 10, 1989, and prepared a stakeout survey, thereafter. Construction began almost immediately on the project upon the completion of Respondent's stakeout. The masonry work was completed, and the framing of the home began. On or after January 23, 1989, Mrs. Chubboy was concerned the dwelling was too close to the street, and she measured the distance between the foundation and the street. She found it to be set back 20 feet and not 24 feet as intended. As prescribed by Pinellas County, the front set back in the zoning category for 727 Columbus Drive East was 20 feet. Such restriction would preclude the construction of a four foot in depth balcony supported by vertical columns as planned by Mrs. Chubboy in the setback area. Pinellas County did permit her to put in three foot deep balconies but without vertical columns. Mrs. Chubboy was required to redesign the front portions of the second floor of her home by adding beams for balcony supports, because vertical columns could not be used for support. These changes added to the cost of construction. The balconies constructed were not as functional as originally designed and resulted in their restrictive use. On or after January 23, 1989, Respondent provided Mrs. Chubboy with a signed, sealed and certified stakeout survey dated January 23, 1989, showing that the foundation was staked 20 feet from the front of the property, and further indicated that the building stakeout was 59 feet in depth. However, this is at variance with the site plan showed a total building length of 63 feet. When Respondent was confronted with the discrepancy between the actual stakeout and the site plan, he indicated that Mrs. Chubboy should have checked his work, and he was not going to do anything about the discrepancy. The stakeout survey contained the dimensions of the foundation layout, as contained in the building plans (59 feet), which were not contained in the site plan (63 feet). The as-built survey showed where the building was actually constructed, and the foundation was constructed exactly where Respondent staked the foundation. The site plan was inconsistent with the stakeout survey. The site plan clearly shows that the stakes should have been placed 20 feet from the front of the lot to a projection on the building, and the building should have a 63 foot depth from that point. The back of the lot was shown as 37 feet, which totals the length of the lot or 120 feet. The total dimensions of the building could not have been laid out from the site plan, as there is insufficient information on the site plan to give proper dimensions for the building. The dimensions of the building staked out were in accord with the dimensions on the building plan, as evidenced by the stakeout survey. The site plan does conflict with the building plan, as the site plan shows the layout of the building from front to back totals 63 feet. However, it also includes a projection which was intended to represent the second floor balconies in dotted lines. The stakeout survey indicates that the building length was 59 feet. In any event, the back of the building in the site plan is 83 feet from the front of the lot, but as it was staked, it was 79 feet. A skillful surveyor exercising ordinary prudence should have ascertained from the site plan and dimensions on the building plans that there was a 20 foot setback to a vague object. If you then examine the 63 feet shown on the site plan, and sketch out the 59 feet shown on the building plan, there is a four foot discrepancy between the 20 foot setback and where the building is supposed to start. The site plan was vague, and a skilled surveyor would have contacted his client for more specific information, and under such circumstances, should not have proceeded with the job until he had more specific information. A contractor or property owner has a right to rely on the professional ability of a surveyor to stake out the building site in accordance with the site plan or building plan. It is not the client's responsibility to check on the accuracy of the work of a professional. The purpose of a building's stakes is to mark the corners of the building in such a manner that construction can proceed from the stakes. The stakes were not to be moved. An "envelope-type" stakeout is a stakeout where the builder is free to move the building around. It is used where expert builders set their own offsets. It is not the type of stakeout required here. Such stakeouts were not for use by a person of Mrs. Chubboy's experience, nor is it indicated that Respondent was asked to do anything but stake specific corners. Respondent's assertion that the offset stakes were set so that the building could be moved is not credible. The "as-built" survey indicated that the building was placed directly where the stakes were placed by Respondent. Respondent further indicated that he was aware of the discrepancy of four feet between the building plan and the site plan, and chose to proceed with staking the house with a 20 feet set back and 59 feet in depth which added four feet to the back yard. This error by Respondent constitutes negligence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent pay an administrative fine of $1,000. That Respondent be placed on probation for one year subject to such reasonable conditions as the Board may specify. DONE AND ENTERED this 21st day of May, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of May, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11(in part), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 33. Rejected as not supported by clear and convincing evidence: paragrahs 11(in part: cost of change orders in the design of the home), 12, 13, 34. Rejected as argument: paragraph 28, 29 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3(in part), 5. Rejected: paragraph 3(in part), 4, 6. COPIES FURNISHED: William S. Cummins, Esquire Senior Attorney Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez Executive Director Board of Professional of Land Surveyors 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel 1940 N. Monroe Street Tallahassee, FL 32399-0792 Mr. Lars Dohm Apartment #611 5790 34th St. St. Petersburg, FL 33711
Findings Of Fact The Petitioner, Isidoro Carrillo, sat for Part II of the residential contractors examination administered in June, 1992. The Petitioner received a raw score of 62 on Part II of this examination which was amended to a grade of 63. A minimum passing score is 70. Each correct answer was worth 4 points. The Petitioner originally challenged questions numbered 8, 11, 15, 16, 18, 19, and 25 on the examination. At the hearing, the Petitioner conceded the Department's answer to questions no. 18 was correct. The Petitioner did not present any evidence with regard to questions numbered 8, 19, and 25 at the hearing. The Petitioner challenged questions numbered 11, 15, and 16. Questions numbered 11, 15, and 16 were labeled as the Hearing Officer's Exhibit and determined to be confidential pursuant to Section 455.229, Florida Statutes. A set of plans was introduced and labeled as Respondent's Exhibit 1. These plans are also determined to be confidential pursuant to Section 455.229, Florida Statutes. Question No. 11 required the computation of the square area of the foyer. The portion of the house to be included within the computation of the area of foyer was to include "all adjacent interior cased openings and door ways." Sheet 3 of 6 of the plans for the structure reveal notes relating to the foyer. The annotations regarding the foyer state: "See Note No. 18" and "See Note No. 19." Sheet 1 of 6 contains the specific notes relating to the plans. Note No. 18 states: "40 (width) x 68 (height) cased opening (See (Floor Plan)." Note No. 19 states, "58 (width) x 68 (height) cased opening (See Floor Plan)." The Petitioner failed to compute the correct answer for question No. 11 because he excluded from his computations the area between the foyer and the living room which was subject to note No. 19. The Petitioner's excluded this area from his calculation because the area between the foyer and living room lacks jams and is not a cased opening. The Petitioner and Respondent's expert both agreed that a cased opening was "Any opening finished with jams and trim, but without doors." A jam is defined as a vertical structure with depth. Referring to the plans in question, the opening between the foyer and the living room lacks jams. Respondent's expert explained that the area between the foyer and living room was included in the computation purely on the basis of Note 19, defining the area as a cased opening. Petitioner challenged question No. 15 which required the examinee to compute the amount of time required "to lift and place all single wood trusses with a span of 21' 4" given that the truck can lift and place one full-span, single, roof truss every 15 minutes. Sheet 5 of 6 of the plans depicts the roof truss layout for the house. On the plan, there are three single roof trusses with an overall length of 25' 4" and a span of 21' 4" and one gable end truss with a span of 21' 4" which is placed on top of and runs the length of the south wall of the building. This gable end truss has a span of 21' 4" but does not span any distance because it sits atop the wall. The response expected by the Respondent was one hour with the truck lifting four trusses: the three 25' 4" trusses plus the gable end truss. The Petitioner's answer was 45 minutes because he excluded the gable end truss which sits atop the wall and does not span any distance. The Petitioner challenges question No. 16 which asks the examinee to calculate the total cost for the pressure treated 4 x 8 and 2 x 6 lumber required to construct the wood deck, excluding wood rails, and given the price per 100 board feet of the 4 x 8 and the 2 x 6 pressure treated lumber. The expected response was answer A. The candidate's response was answer D because the candidate had included 4 x 8 beams running along and parallel to the wall of the house in his calculation of the cost figures. However, the detailed drawings of the wooden deck at the top of Sheet 3 of 6 and on Sheet 2 of 6 reveal that there are no 4 by 8 beams running along and parallel to the side of the house.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, the Hearing Officer concludes that the Petitioner was successful in challenging only one of three of the questions involved. The Petitioner's score of 67 points is insufficient for him to pass the examination. The Petitioner's records should be corrected; however, the Petitioner has not demonstrated a passing grade of 70, and therefore should not be licensed. DONE and ENTERED this 30th day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 30th day of April, 1993. APPENDIX A The Petitioner did not file proposed findings. The Respondent filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Respondent's Findings: Proposed Order: Paragraph 1-5 Paragraph 1-3 Paragraph 6 Paragraph 4-8 Paragraph 7 Paragraph 9,10 Paragraph 8 Paragraph 11 COPIES FURNISHED: Isidoro Carrillo Post Office Box 1896 New Smyrna Beach, Florida 32170 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director DPR - Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
The Issue The issues to be resolved in this proceeding concern whether the Respondent's license as a certified building contractor should be subjected to disciplinary measures because of the allegations and violations of Section 489.129, Florida Statutes, alleged in the Administrative Complaint and what, if any, penalty is warranted.
Findings Of Fact The Respondent is a certified building contractor, holding License No. CBC016364, authorizing building contracting work in the State of Florida. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulation of the licensure of certified building contractors and regulation of the practice of building contracting in the State of Florida in accordance with Chapter 489, Florida Statutes. The Respondent entered into a building contract with Barbara Clifton for the construction of a new home on or about November 1997. The home is located at 9450 Northwest 133rd Lane, Chiefland, Florida. The contract price agreed upon between the parties for the construction of the home was $68,953.00. During the course of the construction, the Respondent accepted $49,714.75 in construction "draws" from the owner. The Respondent engaged in construction of the home from late 1997, until March 1998. In March 1998, after a number of disputes arose between the Respondent and Ms. Clifton, she terminated the contract and ordered the Respondent to stay off the premises of the project. The Respondent had completed approximately 90 percent of the construction on the home at the time the contract was terminated and he was barred from the job site by the owner. The home contained a number of defects and alleged defects at the time construction ceased. Evidence of some of the defects was established by the testimony of Ms. Clifton, the owner, and especially by that of the Petitioner's expert witness, Mr. Abbott. Testimony and exhibits presented by the Respondent showed that in some instances the defects testified to by Mr. Abbott did not actually exist. The anchor bolts securing the bottom or sole plate to the slab/foundation wall, for instance, were shown to be in compliance with the building code by being three feet apart (on centers). Mr. Abbott had opined that they were 72 inches apart. Also, the photographic exhibits presented by the Respondent showed that the metal anchor straps securing the framing wall studs to the slab and foundation were indeed in place, although Mr. Abbott had opined that they were not. In any event, the testimony and evidence presented through Mr. Abbott as a witness established a number of plan deviations and structural defects in the home. The plan defects were as follows: Garage floor elevation: There was a differential between the finished interior floor level of the house and the garage floor. The plans called for a 16-inch differential. The differential between the two floor levels in the house as built, however, was 48 inches. This deviation was made by the Respondent within ten days after the start of construction. It was because of a significant slope on the lot on the site of the house which necessitated, at the garage site, that the floor be some four feet below the floor level of the interior of the house in order to achieve a level floor without the use of fill dirt. The owner maintains this was done without notice to her and that she had not approved the change in the floor level and was not consulted by the Respondent in this regard. The Respondent maintains that indeed he did explain the problem to the owner and that he offered the solution of "flipping" the garage portion of the house and plan to the other end of the house where less slope would be involved and the floor levels would more nearly approach the plan specifications. Alternatively, he recommended the use of fill dirt to raise the level of the garage floor at the specified location of the garage, to overcome the effect of the slope of the lot at that location. He maintains that the owner refused to approve that approach and that therefore he had no choice but make the garage floor level four feet below that of the interior floor level of the house. In any event, the weight of the evidence shows that the owner and the Respondent did discuss the matter, although they may not have agreed as to the solution. There is, however, no record or evidence of an approved written change order with the owner's assent or any notice to the lending institution of the change from the plan's specifications in this regard. Further, in this connection, the stair systems departed from the plan specifications. The stair system in the garage, of necessity, in order for the occupants of the house to be able to egress through the door opening into the garage, down to the garage floor had to use steps going down four feet. The steps and associated landing, constructed with pressure-treated lumber, extended a significant distance out into the floor area of the garage. This was not called for by the plans either. The garage stair thus obstructed the use of the garage and indeed denied access to housing full-sized vehicles in the garage. The Respondent should have foreseen this problem and at the very least, if the four-foot differential and floor height was necessary (which could have been alleviated by filling), should have re-oriented the stairs so that full-sized vehicles would not be barred from the use of the garage. Additionally, there was a variation in stair height at the entry stair to the house which exceeded code tolerances and constituted a "trip step" which was a safety hazard at the top of the stairs, where they were attached to the landing, where entry and egress to the house were to be effected. The attic stair, which was designed to fold up and down inside the garage evidently was constructed and installed according to specifications. This resulted in the attic stair, when folded down for use, being substantially above the lowered floor of the garage and therefore unusable. The Respondent should have foreseen this defect and taken steps to alleviate and accommodate it given his lowering of the garage floor, which was a departure from the plan specifications on the approved plans. In any event, the Respondent certainly should have had a written change order signed by the owner approving a change in the garage floor level or approving the use of fill dirt to raise the floor level to accommodate the 16-inch differential specified in the approved plans. Neither was done. In fact, it is apparent that although the Respondent and the owner discussed the garage floor level problem, that the Respondent proceeded to lower the garage floor-level before the owner actually had knowledge that the Respondent was going to carry out that approach. Ceiling height: The ceiling height was reduced from the nine feet specified in the plans to eight feet. The exterior eave heights established by specific dimensions in the plans were also reduced. The complainant owner indicates that she was not consulted prior to this change and denied approving it. The Respondent maintains that if he had intended constructing ceilings higher than an eight-foot ceiling, that a ten-foot ceiling dimension would have been employed since framing lumber is cut in standard eight, ten, or twelve-foot lengths and that it would be wasteful to cut ten-foot framing studs to construct a nine-foot ceiling. He maintains that the mention of nine feet for ceiling heights in the plans was an oversight or typographical error and that the parties actually intended eight-foot ceilings from the start of their discussions regarding construction of the house. He stated that the owner had never complained to him of the use of eight-foot ceiling heights. The evidence, thus, does not clearly show that the Respondent departed from the owner's actual wishes in this regard. At the very least, however, the Respondent should have secured an approved written change order and provided notice to the lending institution with regard to this change from the plan specifications. Chimney: The "architectural surround" device for the chimney was not installed. This is both a decorative and protective cover designed to surround the chimney flue and, in addition to being a decorative finish item for the roof of the house, to protect the chimney flue from wind forces which it was not designed to resist. This device should have been installed before the metal roofing was installed but that was not the case. The Respondent was forced to quit the job before the architectural surround device for the chimney had been installed. The Respondent maintains that he was at all times ready and willing to install it, even at his own expense, but the owner would not allow him back on the job site to finish this portion of the work. This left the metal chimney flue standing alone, exposed and not itself properly installed since it could be moved with slight pressure from the fingers of one hand some five to eight inches in deviation from the vertical position that it was supposed to occupy. This incorrect installation of the chimney flue could be a hazard to life or property. If the Respondent had installed the architectural surround for the chimney at the proper time, before the installation of the metal roofing, the chimney installation would have been completed before the Respondent was ordered to leave the job site by the owner. Structural Defects: The "stem wall" or foundation wall was specified in the plans to be three courses of eight- inch block, with a No. 5 steel vertical reinforcing bar embedded in the wall at 48-inch intervals (on centers). The Southern Building Code requires the vertical reinforcing bar to be hooked at the top and bottom where it connects to the concrete footing on the bottom of the stem wall or foundation wall and, on the top, where it hooks into the concrete slab. The code also requires that cells in block walls which contain the vertical reinforcing bars have to be filled solidly with poured concrete. The code also requires a horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab where it joins the top of the stem wall. The stem wall as it was actually built varies from three to six courses of block. The No. 5 vertical steel reinforcing bars were determined to be spaced at 64-inch intervals on center instead of the required 48-inch interval. They were not hooked at the top and it is not clear whether they were hooked at the bottom since Mr. Abbott was unable to view the bottom of the wall because it was already constructed. However, at least one of the cells which was torn into and exposed had a vertical reinforcing rod but was not filled with concrete. This was on a corner of the house where it is perhaps more critical that the reinforcing rod be hooked to attach to the slab and that its cell be filled with poured concrete, which was not done. The required horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab called for by the code was omitted. Exterior frame walls: Mr. Abbott opined that the building official considered SSTD 10-96 "check list" to be part of the permit package. It is more stringent in its requirements and supercedes the plans governing framing and anchorage requirements for exterior frame walls. The construction plans specified 2 x 4 framing for the walls, with metal connectors joining the studs and the bottom of sole plates together, with anchor bolts at six-foot intervals (on centers), securing the petition or exterior frame wall to the floor slab. Additionally, Mr. Abbott contends in his testimony that the "wind load checklist" requires the basic framing and the walls to be 2" x 6" material instead of 2" x 4" material, along with the framing clips where the studs join the top and bottom wood plates of the exterior wall partitions and that anchor bolts be spaced at 48 inches on center in securing that exterior wall partition to the concrete slab. The walls, as built, were made of 2" x 4" stud material with metal framing clips installed joining the members, as well as anchor bolts approximately three feet apart or better than the specifications and the code required. This is shown by the Respondent's testimony, corroborated by his photographs and evidence showing the location of the anchor bolts and the metal framing clips joining the vertical studs in the wall to the sole plate or bottom plate of the wall. Thus, it would appear that the wall complies with the wind load checklist requirements, except that 2" x 4" material instead of 2" x 6" material was used. It is not clear, however, that there is actually a mandatory requirement that 2" x 6" material be used. Apparently, such is not required by the Southern Building Code. Thus, clear and convincing evidence has not been adduced to establish that wind load requirements have not been met by the wall as built. The exterior siding installed on the walls, however, does not comply with the manufacturer's requirements or with the appropriate construction practice. The "hardie board" siding was called for in the specifications but some of the siding is hardie board artificial wood grain siding and some is Abco siding. The two different brands of siding resulted in two different wood grains or textures being used, which does not comply with the specifications and the owner's wishes. Moreover, the siding was installed in some places with the butt joints of two siding boards joining at a location other than over a wall stud, making for a weak improperly supported joint between siding boards. Because of this the nail pattern for the siding was somewhat incorrect as well. Metal Roofing: The metal roofing system employed on the house is Semco 5-V-Crimp manufactured by Southeastern Metals of Jacksonville, Florida. A complete, detailed manual for the product is part of the permit file. Absent specific standards in the building code, the manufacturer specifications govern the installation of the product and establish guidelines for inspection by the local officials. The cursory visual inspection by Mr. Abbott showed that the eave and valley connections and flashings at various penetrations are not as specified in the plans. Mr. Abbott established that the installation technique employed was shoddy and of poor quality, as evidenced by crowned and warped panels, potentially insecure flashing, and ill-fitted twisted crowned caps. Mr. Abbott opined that the sub-standard installation of the metal roof had not been subjected to a proper inspection and that the roof presented a potential danger to the property as constructed. Finally, the chimney construction also represented a structural defect, as well as a deviation from the plans, as described above, and for the same reasons as described in the above findings of fact also constituted a structural defect. The flue could easily be moved by light-hand pressure and was not braced to resist wind loads that might occur. In summary, the Respondent has evidenced a lack of due care and a failure to act in a manner consistent with a reasonable standard of practice in the above-found defective particulars, although, not all the allegations and related opinions of the Petitioner's expert witnesses were established. Moreover, there is no doubt based on the evidence of record, including the Respondent's testimony, that the Levy County Building Department performed the required inspections up until the time work ceased (hence no final inspection) and either missed or ignored certain of the defects which should have been readily apparent, such as the roof. The construction defects resulted in a home that can not, as built, be an entirely safe structure. It was not constructed in conformity with the applicable building codes, to the extent that it was completed before work was ordered stopped by the owner. Although the Respondent freely offered to correct the defects, if allowed to come on the premises to do so, the fact remains that the above- found defects were established and committed. During the course of this dispute, before the formal hearing, a civil action concerning the dispute, was filed by the owner against the Respondent. That action went to a mediation process, the result of which was, in part, that the Respondent agreed to purchase the home from the owner, the complaining witness Ms. Clifton.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a final order be entered by the Construction Industry Licensing Board finding the Respondent guilty of violating the above-referenced statutory provisions in the particulars found above; that the Respondent be required to pay investigative costs for this proceeding and an administrative fine in the amount of $1,500; and that the Respondent be placed on probation for a term to be determined by the Construction Industry Licensing Board. It is also recommended that the Respondent be required to pay restitution to Ms. Clifton for the cost required to repair the above-found defects or, alternatively, that he be required to repair the defects at his own expense, or thirdly, that he purchase the home from Ms. Clifton within 90 days of the entry of a final order herein. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of March, 2002. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Joseph Lander, Esquire Post Office Box 2007 Cross City, Florida 32628 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 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 in this proceeding is whether the placement of a window in a sleeping room at Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor (Elsie Miller), an Adult Congregate Living Facility, violates Chapter 400 or Chapter 553, Florida Statutes. This case came to hearing based upon a peculiar set of circumstances. Initially on December 12, 1984, the Department of Health and Rehabilitative Services (HRS), Office of Licensure and Certification, cited Elsie Miller for a deficiency, stating that "Bedroom No. 3 is not provided with a window to the outside for ventilation and light." By letter dated February 11, 1985, Elsie Miller disagreed with the deficiency, citing reasons for the disagreement, and requested a formal hearing on the deficiency. On February 28, 1985, HRS sent a letter to Elsie Miller reiterating the deficiency and denying a waiver for the window in question. Therein, HRS told Elsie Miller that it could appeal the deficiency determination. By letter dated March 12, 1984, Elsie Miller requested a hearing to appeal the decision in the February 28, 1985, letter, without specifying whether it appealed the actual finding of deficiency or the denial of a waiver. The matter was then forwarded to Division of Administrative Hearings for assignment of a Hearing Officer. At no time did HRS issue a Notice of Violation or any other document that would serve as an administrative complaint, nor did HRS seeks to impose sanctions for the alleged violation. Presumably, an administrative complaint would have eventually been issued if Elsie Miller had done nothing to correct the alleged deficiency. Under this set of circumstances, a formal hearing was convened, after which the parties recognized and agreed that the matter was in fact not ripe for hearing. However, to avoid the time and expense of gathering the witnesses and parties at some future time, the parties instead stipulated that the formal hearing should proceed as if an Administrative Complaint has been filed, that HRS would take final agency action based on this Recommended Order, and that this proceeding would conclusively address the issue of whether the window complies with Chapter 400 and Chapter 553 as incorporated by reference in Section 400.444. Petitioner presented the testimony of Jim Valinoti, together with one exhibit. Respondent presented the testimony of Earnest J. Miller, Jr., together with three exhibits. The parties submitted proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent or credible evidence.
Findings Of Fact Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor, is the owner and licensee of a licensed Adult Congregate Living Facility (ACLF) located at 1914-21st Street, Vero Beach, Florida. It has been so licensed since 1974 and houses twenty residents. In 1984 Elsie Miller remodeled its facility by enclosing a screened porch to make a dining room and adding a new screened porch outside of the dining room. A building permit was obtained from the City of Vero Beach. Pursuant to that building permit, the City of Vero Beach approved the plans and inspected the construction to determine whether the project was in compliance with the building codes of the City of Vero Beach. The window in Bedroom #3 previously opened onto the screened porch. After remodeling it opens into the dining room a few feet from the new screened porch. ACLF facilities must have their licenses renewed yearly. Elsie Miller's license was renewed in October, 1984, after the remodeling was completed. On December 12, 1984, Jim Valinoti, a Fire Protection Specialist for HRS, conducted an annual licensure survey. He cited Elsie Miller for a deficiency for the window in Bedroom #3 because it did not open "to the outside for ventilation and light." This allegedly violated Section 2001.1 of the applicable building code. Mr. Valinoti's interpretation of Section 2001.1 as it refers to windows opening to an approved open space is that the window must open into a space open to the outside. Bedroom #3 has two exit routes in addition to the window, but has only the one window which opens onto the dining room. In order to move the window to open to the outside, Elsie Miller would have to move two patients, tear out walls and reshape two bedrooms. There is adequate light and ventilation with the current placement of the window. The dining room is connected to the screened porch by an entire wall of glass and sliding glass doors. The window is approximately three feet from the plate glass window and light and ventilation are adequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order determining that Elsie Miller Convalescent Home, Inc., d/b/a Elsie Miller Manor is not deficient and is not in violation of Section 2001.1(b) of the Southern Building Code as it relates to the window in Bedroom #3. DONE and ENTERED this 12th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1985. COPIES FURNISHED: K. C. Collette District IX Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401 Charles E. Garris 2205 14th Street Vero Beach, Florida 32960 Leslie Mendelson, Agency Clerk Assistant General Counsel- Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 David Pingree, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes 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. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact The Respondent, Clarence Kimball, is a professional engineer licensed to practice engineering in the State of Florida, holding license number PE 0009427. The Petitioner is an agency of the State of Florida charged with enforcing standards and principles of professional engineering practice imposed upon licensed professional engineers in Florida and enumerated in Chapter 471, Florida Statutes (1981), and with monitoring and regulating the licensure status of professional engineers in Florida. The Respondent was retained to draft engineering design drawings for a multi-family residential project known as Westwind Villas, to be constructed in Lee County, Florida. The project consisted of two two (2) story buildings each containing four residential units. The drawings depict the first floor of the two buildings as built in place out of concrete block. The second floor of the building as depicted in the drawings, would be built of prefabricated modular units mounted on top of the concrete block, first floor construction. The purpose of these engineering drawings was to define the scope of the work to be done by the building contractor, who would do the actual construction, and to define the materials to be used by the contractor and the manner in which those materials were to be assembled. These permit drawings contain an inconsistency as to which way the buildings are to face. Sheet 1 of the drawings depicts a plot plan and drainage plan for the Westwind Villas. That sheet indicates that the units are all facing west. Sheet 2 of the drawings also shows the units facing west. Sheet 5, however, depicts the units as both facing to the north. This fact was established by Petitioner and indeed, was acknowledged by the Respondent in his testimony. Sheet 2 depicts the elevation and design of the foundation of both buildings. There are a number of areas of the foundation design where the drawing depicts an increase in the width of the concrete slab involved, but with no indication of the Respondent's intent as to what the dimensions of the widened portion of the slab were to be. The Respondent acknowledged that the failure to indicate the width of the slab as widened with regard to the drawing on Sheet 2, was a mistake on his part. Sheet 2 also contains a note that says "number 5 bars in the concrete fill are indicated by a little square." Indeed there are numerous small squares on the foundation plan indicating that number 5 reinforcing bars are erroneously sticking out of the floor of the structure. The Respondent admitted that the filled squares indicate reinforcing bars out in the floor of the structure, as opposed to the foundation, and that those are mistakes. Sheet 2 also provides no indication or direction to the building contractor as to the degree of compaction of soil required, the grade of lumber to be used, nor the grade and type of reinforcing steel to be used in the concrete portion of the construction. Sheet 4 of the permit drawings contains details and cross sections. Section AA calls for an 8" x 16" concrete tie beam and in depicting the typical cross section of that same beam, the Respondent shows it as an 8" x 12" concrete tie beam, which would have less "shear load "or weight bearing ability. Section CC of Sheet 4 illustrates a section of the wall for which the Respondent indicates that a single wall is to be constructed of interior type wall materials. Due to the offset of the two units in their alignment arrangement with each other however, there should have been two "stud walls" designed with the exterior portions of those walls constructed out of exterior materials, since, as designed in an offset pattern, portions of the walls would indeed be exterior walls. The Respondent acknowledged here again that he should have designed the two walls providing for materials suitable for exterior wall construction. As Respondent admits, Section CC also does not indicate how the contractor is to anchor prefabricated units consisting of the second floor structure, to the beams on which they are to rest. There is no indication as to what material is to be used for the attic floor of the structures. Section 5 depicts cross sections, trusses and framing details. There is inconsistency between the elevation depicted on Sheet 2 and the roof rafter plans shown on Sheet 5. The roof after plan indicates that the prefabricated second story unit is 14 feet wide without overhang on the sides. The elevation drawing, however, shows an overhang of 1' 4" on each side. There is thus an inconsistency there, and also an inconsistency between the ceiling plan above the second floor and the truss detail both of which are shown in Sheet 5. The ceiling plan indicates that the ceiling joists are to be 2" x 6". In truss detail "A" the ceiling joists are shown to be 2" x 8". Additionally, the 2" x 6" ceiling joists are overstressed in that the attic was designed to have a pull down staircase and thus is clearly intended for storage use. The standard building code in effect for this structure, requires that an attic space to be used for storage should be designed with a live load capacity of thirty pounds per square foot. The Respondent designed this attic space with a live load capacity of fifteen pounds per square foot, and thus has failed to meet building code standards. Sheet 5 contains illustrations of "Sling and Jack Points" thus showing a method for lifting the fabricated units onto the concrete block first floor structure. The owner of the building ultimately decided not to use this method for lifting the prefabricated units atop the first floor, but the Respondent failed to notify the Lee County Building Department of this decision and did not file a revised sheet showing the elimination of the use of sling and jack points for lifting in the design. The drawing with regard to placement of the second floor units on top of the first floor concrete block structure was incomplete. The Respondent referred to a temporary support beam to be used during the lifting operation and indicated the specification for that beam "as depicted by reference on another sheet of the drawings. Respondent, however, did not indicate what other sheet the contractor was to refer to. The permit drawings for this project, signed and sealed by Respondent, are to some extent an amalgamation of drawings from other previously designed projects, some of which are inconsistent when an attempt is made to combine the drawings into a single new design. There are a number of construction problems the Respondent failed to resolve with his drawings, and while many of the errors and inconsistencies standing alone would not be significant, the sum total of all the inconsistencies, ambiguities and inaccuracies in the drawings result in a final product which would, if used to construct the building, result in a poorly constructed, and possibly unsafe building, because of the substandard and ambiguous nature of the drawings at issue.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Professional Engineers suspending the license of Clarence Kimball, the Respondent herein, for a period of four years, provided however, that if, within one year from the date of such final order, the Respondent, through enrollment and successful completion of appropriate continuing engineering educational courses, can establish that his engineering skills have been remediated and rehabilitated, then the remaining three years of suspension should be abated and his licensure reinstated to its former status. DONE and ENTERED this 27th day of June, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32391 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 28th day of June, 1984.
