The Issue The issues in this cause are those promoted by the filing of an Administrative Complaint by the Department of Professional Regulation accusing the Respondent of various violations of Chapter 489, Florida Statutes. Should the Respondent be found guilty, this action contemplates the imposition of a penalty against Respondent's license as a commercial pool contractor in Florida.
Findings Of Fact 1. Respondent, at all times relevant to this inquiry, was a registered commercial pool contractor having been issued license number RP0041725. This is a license issued by the Florida Construction Industry Licensing Board. 2..On November 18, 1983, Respondent entered into a contract under the name Kennedy Pool and Construction Co., an entity for whom Respondent serves as a qualifying agent in the commercial pool contracting business. This contract was with one Marie Robertson; however, the contract was not for the purpose of construction of a pool. It was for construction of a 20' by 24' block garage. This structure was to be free-standing and would be located adjacent to Ms. Robertson's residence, which is also used in her business. Petitioner's exhibit number 2 is a copy of the contract and reflects the $4,800.00 contract price. Robertson has paid the full amount of the contract and the garage construction was completed in January, 1984. Respondent personally built the garage. Respondent built the garage without obtaining a building permit from the City of Jacksonville, Florida. Respondent also failed to submit plans and specifications to the City of Jacksonville, which set forth the design and placement of this garage structure. Having failed to request a permit or to submit plans and specifications, Respondent made no request of the City of Jacksonville Building Department to inspect the construction related to the garage. Finally, Respondent in his licensure with the State of Florida, and license recognition with the City of Jacksonville, was not authorized to serve as a building contractor engaging in the construction of structures such as the garage in question. The project at issue entailed the pouring of a foundation; the erection of block walls the erection of a roof truss system and the installation of a roof covering of shingles. All of these items were beyond the license recognition which respondent held with the State of Florida and the City of Jacksonville. When the City of Jacksonville discovered the existence of the garage, it made the owner aware that the structure was in violation of the City of Jacksonville Building Code related to the need for obtaining a building permit, and the fact that the garage structure violated the city's set-back requirement. This later item pertained to the fact that given the commercial utilization of the property, on the part of Ms. Robertson, the garage was too close to the city street. As a consequence, Robertson was put to the inconvenience of obtaining and paying for a building permit and gaining a variance from the set-back requirements mentioned. Had the City of Jacksonville been presented with building plans and specifications, this would have alerted the city to the fact that the placement of the garage was too close to the street. When confronted with her difficulty, Ms. Robertson contacted the Respondent to gain his assistance in obtaining a building permit. The Respondent indicated that it was her problem and said that he could not get a permit because the property was business property and not private property. The Respondent was charged by the City of Jacksonville through a notice of violation of local zoning requirements related to the failure to obtain a building permit and the fact that the Respondent was not licensed by the City of Jacksonville to construct a garage at the Robertson residence. Attempts at serving the violations were not successful in that calls to the Respondent and issuance of notice of violations through certified mail, return receipt requested, were not acknowledged by the Respondent.
The Issue The issue presented by the Motion and supplemental Motion to Dismiss is whether the Golden Gate Area Taxpayers Association (Association) has standing to maintain this challenge to the applications for consumptive use permits sought by Collier County (County) and the City of Naples (City) from the South Florida Water Management District (District).
Findings Of Fact The County filed its application number 08158A with the District for modification of consumptive use permit number 11-00249-W, on or about August 15, 1988. The City filed its application number 08137-H with the District for modification of consumptive use permit numbers 11-00017-W & 11-00018-W, on or about August 15, 1988. After review, the District staff issued its recommendation to grant the County and City's consumptive use permit applications, with limiting conditions, on or about January 24 and 25, 1989. The Association filed its Petition and Amended Petition herein on February 8, 1989, and March 6, 1989, respectively, challenging the issuance of these consumptive use permits. The Association did not allege any basis upon which standing could be established in its Petition or Amended Petition. There is no allegation in either document which describes the Association, alleges its purpose, scope or interest, the number of members in the Association and the number of its members adversely affected by the issuance of these permits, or the reason why the relief sought is appropriate for it to receive. Discovery was allowed to proceed in order to determine if there was a basis, notwithstanding these deficiencies in the Petition and Amended Petition, upon which the Association could establish its standing at final hearing. The District preserved its right to renew its objection to the Association's standing throughout this proceeding, and timely sought a determination thereon, after discovery had been concluded, but before the commencement of final hearing. This action is specifically maintained by the Association, and not by individual members thereof, or non-member property owners. However, the Association has not asserted that its substantial interests will be adversely affected by issuance of these permits. The Association is not an existing legal user of water in Collier County. The Association does not own, lease or otherwise control lands impacted by the permits sought by the County and City. The membership of the Association varies throughout the year as members pay their annual dues. The current membership of the Association totals 59, according to its Amended Second Response to First Interrogatories from Respondent Collier County filed on October 30, 1989, but it had reached a total membership of approximately 200 at times, according to the President of the Association, as dues are paid each year. The Association alleged in the motion hearing held on October 30, 1989, that 13 of its current members are adversely affected by the proposed issuance of these permits. However, in response to Interrogatories served by Hearing Officer Donnelly, the Association indicated that only 5 members were affected, and in response the District's Interrogatories the Association indicated that 6 of its members were affected. Thus, the Association's estimate of the number of its members who would be affected by issuance of these permits is uncertain, inconsistent, unreliable and lacks credibility. The nature of that adverse effect is stated to be damage to domestic wells, degradation of water quality, and a decline in water quantity, according to affidavits filed by the Association on October 13, 1989, in response to Interrogatories from Hearing Officer Donnelly. The only provision in the Association's by-laws upon which it relies in this proceeding to support its standing is found at Article V, Section 4, which states, "The corporation reserves the right to seek judicial relief in the furtherance of its aims and purpose." The only provision in its articles of incorporation which have been relied upon by the Association in this regard were cited during the motion hearing on October 30, 1989, and provide generally that the Association's purpose is to inform its members about the ongoing activities of government, particularly local government. It is clear that the Association is a taxpayer's association which has taken action in the past regarding tax assessments, and represented the views of its members in matters relating thereto. There is no other allegation or explanation of record regarding the purpose, scope, or interest of the Association, or factors which would support a finding that the relief sought herein is appropriate for the Association to receive on behalf of its members. The Association's exhibit list and amended exhibit list filed herein do not contain any exhibits which would clarify or explain its purpose, scope or interest in these matters, its total membership and number of adversely affected members, or how the relief which it seeks in this proceeding is appropriate for it to receive.
Recommendation Based upon the foregoing, it is recommended that the District issue a Final Order dismissing the Petition, as amended, which has been filed herein by the Association, based upon the Association's lack of standing. DONE AND ENTERED this 22nd of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 22nd of November, 1989. APPENDIX (DOAH Case Number 89-2100) Ruling on the Respondents' Proposed Findings of Fact: 1. Adopted in Finding 6 2-4. Adopted in Finding 9. 5. Adopted in Finding 10. COPIES FURNISHED: Joseph L. Grimm, Director Golden Gate Area Taxpayers Association 3093 52nd Street, S.W. Naples, FL 33999 Mark G. Lawson, Esquire Assistant County Attorney Collier County Courthouse 3301 Tamiami Trail East, Building F Naples, FL 33962-4976 Elizabeth D. Ross, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680 David W. Rynders, Esquire City of Naples 735 Eighth Street South Naples, FL 33940 John Wodraska Executive Director P. O. Box 24680 West Palm Beach, FL 33416-4680
The Issue The issue presented for decision herein is whether or not Respondent engaged in conduct, set forth hereinafter in detail, which amount to wilful or deliberate violation of local law and thereafter abandoned a construction project without just cause, prior to completion.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. The Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of contracting. Respondent is, and has been at all time material hereto, a registered general contractor having been issued license number RG 0006192. On July 15, 1985, Respondent contracted with Mr. and Mrs. Louis Mara to renovate a garage at the Mara home in Hollywood, Florida for a price of $3,000. (Petitioner's Exhibit 2). Respondent was given, prior to commencement of the job, a $2,000 deposit. Respondent commenced performing the Mara job in Hollywood without first obtaining a building permit. About one month after Respondent commenced completion of the Mara's project, he left the project having completed less than 20% of the work he contracted to perform. Respondent has not returned to the Mara's project in more than two years despite the Mara's plea that he return to complete the work. A review of the official records for the City of Hollywood reveals that Respondent did not obtain any permit to complete the garage renovation for Mr. and Mrs. Louis Mara. Pursuant to Chapter 71-575, Laws of Florida, special acts of 1971, the City of Hollywood has adopted the South Florida Building Code, as revised from time to time, as the building code for the City of Hollywood and its regulations governed the construction, maintenance, repair and condemnation of buildings for the City of Hollywood. (Ordinance #0-71-158, Section 1, 12 22-71 Petitioner's Exhibit 6). As noted, Respondent, or a representative on his behalf, did not appear at the hearing to contest or otherwise refute the allegations contained in the Administrative Complaint filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license number RG 0006192 as a registered general contractor be REVOKED. DONE and ORDERED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1988.
The Issue The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.
Findings Of Fact At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
Findings Of Fact Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981, and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each. PLANS CHANGE After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.) At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation. STOP WORK ORDER ENTERED On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated: Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved. All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date. While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work. For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4 (A)(B). Petitioner's Exhibit No. 5. The following day, Mr. Pariser wrote Mr. Cowley, as follows: In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and 304.4 is invalid. We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . . Respondent's Exhibit No. 16. Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows: I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code. After meeting with your architect, Mr. Bryan, I propose the following solution. The stop work order will remain in effect for Construction only, i.e. steel re-inforcement, concrete, etc. could not be placed. Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming. If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15. To this, Mr. Pariser responded the following day with this letter: In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81. There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns. Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card. My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance. If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19. On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981. STOP WORK ORDER VIOLATED By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light. STRUCTURAL PROBLEMS In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981. SHORING ORDERED On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated: I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings. Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10. A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied: I am in receipt of your letter of May 7, 1981, please be advised that even though Raben-Pastal is respecting your wishes as to the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6. In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley: I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound. We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8. Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name: Per your instructions requiring 4 post shores to be placed around our columns on building C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5. During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser. FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling. If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall. On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic], Mr. Thomas and I made an inspection of the above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81. Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order. YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END. ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION. Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11. To this letter Mr. Fowler replied, also on May 15, 1981: Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th. It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation. As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab. However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it? Respondent's Exhibit No. 10. The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building. Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T. 306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony. Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated. The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler. LOAD TEST As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled. LAWYERS' MISUNDERSTANDING Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted. That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact. Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode. BUILDER'S ENGINEER STOPS TEST Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.) SECOND STOP WORK ORDER ENTERED On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued: With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9 of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued. During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr. Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12. By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981. On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six months. DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
Findings Of Fact Respondent Paul McAllister is a certified general contractor and was the qualifying individual for the firm of Garnett-McAllister Associates, Inc., Fort Lauderdale, Florida, in 1977 and until July, 1978. (Stipulation) On April 8, 1977, Respondent's firm entered into a contract with Ray Borchardt, Westchester, Illinois, for the construction of a four-unit apartment building at Lighthouse Point, Florida. The contract provided for a total price of $139,110.00, payable in five payments or "draws" in various percentages of the contract price at specified stages of construction. However, the contract did not specify a time for performance or completion of the building. It contained a clause stating "Any alteration or deviation from above specifications involving extra costs - will be executed only upon written orders, and will become an extra charge over and above the estimate." Respondent obtained a building permit for the construction of the building from the building official, City of Lighthouse Point, Florida, on May 8, 1977. (Petitioner's Exhibits 1, 2) Prior to the commencement of construction, it was determined that foundation pilings for the building were required and therefore Borchardt sent Respondent the sum of $13,519.65 on June 9, 1977, as an additional sum over and above the contract price. At this time, he also sent the first draw in the amount of $20,866.00 even though such payment was not called for until completion of the foundation and "rough in" of plumbing and electric connections. On August 1, 1977, Borchardt paid the second draw of $20,866.00 although the roof was not on, nor had the beam been poured at the time as called for under the contract. Respondent was delayed approximately three weeks by failure of a supplier to provide the second floor concrete planking. On October 24, 1977, Borchardt paid the third draw in the amount of $34,777.00 although construction was not at the stage called for under the contract. On November 22, 1977, Borchardt paid $18,000.00 of the fourth draw and on January 23, 1978, paid the remaining portion of $16,777.00. At that time, the roof was not completed, tile work had not been started, woodwork was incomplete, and kitchen cabinets and vanities had not been installed pursuant to the terms of the contract. Borchardt had made a number of trips from Illinois to Florida during the construction period and was aware that his various partial payments were made in advance of completion of the several construction phases. He had dealt primarily with Edward J. Garnett, president of Garnett-McAllister Associates, Inc., as to the financial aspects of the project. Respondent primarily was a "field" man in charge of supervising construction. Also, Borchardt's son-in- law, Vincent A. Svegel, had moved to Florida in September, 1977, and acted as Borchardt's contact with Respondent's firm after that time. Both Respondent and Garnett informed Svegel in the fall of 1977 that the building would be completed by December 15. (Testimony of Borchardt, Svegel, Petitioner's Exhibit 1) Although during the early part of 1978, five subcontractor liens were filed against the property for work and materials supplied on the project, three of these liens were eventually paid by Garnett-McAllister and the remaining two totaling over $7,000.00 were eventually paid by Borchardt. One of the latter liens was filed by Pompano Roofing Company, Inc. That firm refused to install the roofing tile until paid and the tile therefore "sat on the roof" for approximately five months. On March 13, 1978, Borchardt filed a complaint with Petitioner based on the fact that the work had not been performed according to the draw schedule and liens had been placed on the property. Borchardt also complained to James P. Simmons, the building official of Lighthouse Point about the project delays and claims of lien. As a result, on March 14, 1978, Simmons referred the complaint to Petitioner because Respondent was certified by the state. Petitioner's local inspector, Wallace Norman, issued a Notice of Violation of Section 468.112(2)(e), F.S., to Respondent on March 15, 1978, for diversion of funds based on the filing of liens by suppliers. In a meeting with Respondent and Garnett, Norman asked for an explanation of the situation. They told him that they had been building a house in Davies, Florida, and had used some of the money that Borchardt had paid them to pay suppliers on that house and they had expected to be able to put the money back into the Borchardt project when they sold and realized a profit on the other house. (Testimony of Borchardt, Svegel, Simmons, Norman, Petitioner's Exhibits 7, 9, 10; Respondent's Exhibit 3) During the period between January and March, 1978, some progress was made toward completing the building, including the rough in of the plumbing and electrical systems, installation of inside lath work, installation of tub and shower stalls, and extension of a kitchen area. As late as April 19, 1978, Respondent accompanied Borchardt to a supplier to purchase windows for the building. (Testimony of Svegel, Respondent, Pet. Ex. 3) On May 29, 1978, Svegel, in behalf of Borchardt, notified building official Simmons that Garnett-McAllister Associates, Inc. had been terminated from any further work on the building due to the fact that the building permit had expired and would not be reissued, and requested authorization to finish the building. Simmons thereafter issued a building permit to complete the building to Borchardt on June 21, 1978. He also instructed his staff not to issue any more permits to Respondent due to his "poor track record" and liens which had been filed against the building under construction. Simmons issued the completion permit under the authority of Section 304.3 of the South Florida Building Code, Broward County Edition, which provided that a building permit expires and becomes null and void if work is abandoned at any time for a period of ninety days. Although Simmons considered that the time limit had elapsed because an inspection had not been called for by the builder for ninety days, he erroneously believed that the last inspection had been on January 4, 1978, when, in fact, the city's inspection records show that the plumbing department had made an inspection of rough plumbing on March 27, 1978. Simmons did not notify Respondent of the issuance of the second permit. He considered that he had inherent authority in his position to prohibit issuance of additional permits to Respondent, but didn't consider his action in this regard to be disciplinary in nature because the City of Lighthouse point does not issue contractor's licenses. Therefore, the matter was referred to Petitioner for any action against Respondent's state certification. (Testimony of Simmons, Svegel, Petitioner's Exhibit 3, 4, 11, Respondent's Exhibit 1) At some time prior to obtaining the permit to complete the building, Borchardt had refused to pay the final draw of $27,824.00 to Garnett-McAllister Associates, Inc. because the firm was so far behind on the job. Garnett had told Borchardt that be was selling another home for $80,000.00 and was going to put some of the money he realized from that sale into the Borchardt project. He wanted Borchardt to loan him $20,000.00 and take back a lien on a boat in order to have money in the interim to work on the building. When Borchardt declined to do so, Garnett told him that he could not complete the job. Borchardt also received a call from Respondent to the effect that he would finish the job on his own for $150.00 a week if Borchardt would pay the remaining costs. Borchardt informed him that he would pay nothing further until the job was completed. Garnett had also told Svegel that he had used some $25,000 to $30,000 of the Borchardt funds to construct the house in Davies and that he would put that money back into the firm's business account to use for the Borchardt building when the house was sold. (Testimony of Borchardt, Svegel, Respondent) At the time Borchardt took over completion of construction, the building was approximately 70-75 percent completed. Borchardt paid an additional sum of about $82,000.00 to complete the building which was some $54,000.00 more than the original contract price. However, about $12,000.00 of this sum constituted changes to the original specifications that had been agreed to by Borchardt during the course of construction. Some of these involved changes due to building code requirements, such as the addition of a ramp for the handicapped. Other changes were made on the recommendation of subcontractors or resulted from requests by Borchardt's daughter and son-in-law who were intending to occupy one of the apartments in the building. None of these changes was reflected in a written change order or supplemental agreement to the contract because Borchardt had agreed to the changes and neither party to the contract apparently considered it necessary to formalize these matters. Additional changes in the sum of some $12,000 were made to the building after Borchardt took over construction. These primarily dealt with carpeting, appliances and the like. (Testimony of Borchardt, Svegel, Simmons, Respondent, Stipulation, Petitioner's Exhibits 5, 8) Respondent testified at the hearing and disclaimed knowledge of the financial affairs of the corporation which he claimed were handled exclusively by Garnett. He denied ever abandoning the project and stated that he was unaware, until June 7, 1978, that Borchardt was taking over the construction project to complete. He acknowledged that funds became a problem about mid- January, 1978, and that he then recognized that the contract price had been set at too low a figure because cost overruns were being experienced. He denied diversion of Borchardt's funds to the Davies house, and claimed that his firm did not purchase supplies for that project. He conceded, however, that the firm had one corporate business account from which suppliers on all jobs were paid. Respondent further testified that when funds for the Borchardt building became scarce, profits from other jobs were used in meeting construction costs on the building. He acknowledged receiving a salary of $8,420.00 during the course of construction and said that Garnett had also drawn a sum of approximately $11,000.00 for himself. (Testimony of Respondent) A review of the books of Garnett-McAllister Associates, Inc. by a certified public accountant indicated that they were not well kept and were frequently in error. The auditor's report reflected that the firm had expended at least $80,675.00 in direct construction costs on the project. Certain cost items could not be verified due to the failure of suppliers to respond to the auditor's inquiry. These accounts were reflected on the books of the firm at a total of approximately $1,000.00. (Testimony of Webb, Respondent's Exhibit 4)
Recommendation That Respondent's certification as a general contractor be suspended for a period of 90 days, but that he be permitted to complete any contracts which are uncompleted at the time suspension is effected. DONE and ENTERED this 25th day of April, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32302 Alan C. Brandt, Jr., Esquire 1040 Bayview Drive Fort Lauderdale, Florida 33304 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Findings Of Fact Eduardo Kirksey is licensed as a certified residential contractor, holding license CR C012717. He qualified a corporation known as Modern Construction Company, Inc. (Modern) to engage in contracting.Modern entered into a contract on about July 28, 1986 with Ira Goldstein of 4440 Southwest 32nd Drive, Hollywood, Florida for construction of two-story room addition which would include a family room, bedroom and bath. Modern was to provide the plan by which the addition would be built. A rough sketch of the addition is included on the contract. More specific plans, which are similar to architectural drawings, were thereafter prepared for submission with the building application, which Modern filed with the Broward County Building and Zoning Enforcement Division. The contract was later amended to add a balcony around the second floor of the addition. The plans which are in evidence as Department Exhibit 4 are the second set of plans. According to these plans, the second floor bedroom had a 6" x 6" sliding glass door. The door opened on to a balcony which was created by cantilevered joists consisting of 2" x 10" pieces of lumber bolted to 2" x 12" rafters between the first and second floor. These 2" x 10" members extended out four feet from the building. According to the plans, 2" x 6" decking was to be placed across these joists, and an appropriate railing would then be placed around the balcony. Mr. Kirksey submitted the amended application for the permit and the plan to the Broward County Plan Review Board for approval, and it was approved. After construction began, Mr. Goldstein determined that he did not wish the floor of the balcony to be pressure treated wooden decking. Instead, he wanted a tile floor on the deck. Mr. Kirksey had already filed two sets of plans with Broward County on the project, the first for the addition without the balcony, and the second for the addition with the balcony. He did not want to file a third building permit application which would also require the submission of new drawings. Mr. Kirksey did agree to change the construction to accommodate Mr. Goldstein's desire to tile the balcony but declined to do the tile work himself as part of his contract with Mr. Goldstein. Mr. Goldstein was to arrange for the tiling of the deck. The original design for the decking would have spaced the 2" x 6" lumber which made up the decking with small spaces between each piece of lumber to allow water to fall through during rain. In order to lay tile down, it was necessary to place plywood across the joists, rather than 2" x 6" pressure treated lumber. Before the plywood could be laid, however, Mr. Kirksey had to remove the 2" x 10" cantilevered joists from between the first and second floor, because the original design called for those joists to be level. They were reinstalled at about a 1/2 inch slant so that the water would then drain from the balcony after it had been tiled. In addition, Mr. Kirksey then had to place soffit under the balcony, and put facia around the bottom of the deck. Neither the soffit nor the facia were required in the plans. Although it was more expensive for Mr. Kirksey to add these items, Mr. Goldstein was not charged any additional money for this work. The plywood that was put down over the 2" x 10" rafters instead of the pressure treated 2" x 6" lumber was 3/4 inch exterior grade plywood. Pressure treated plywood was not used because the plywood was to be covered with tile, and if properly tiled, pressure treated plywood is unnecessary. Moreover, even if tile is put over pressure treated plywood, if tile is not laid properly, the pressure treated plywood will rot as well as exterior plywood will rot. It would not have been possible to place tile over the 2" x 6" pressure treated lumber which the amended plan filed with the Broward Building and Zoning Enforcement Division had called for. The 2" x 6" members would shrink and move, causing the tile to crack. Some type of plywood had to be used instead of decking to permit Mr. Goldstein to tile the deck. The 3/4 inch plywood which Mr. Kirksey used met or exceeded the standards established by the South Florida Building Code. No sealant, or paint, was applied to the plywood, nor was the deck covered with visquine. Preparation of the plywood before the tile was placed over it would be the job of the person doing the tile work. An inspector from the Broward County Building and Zoning Enforcement Division visited the site on a number of occasions. During the course of those inspections some of the work was originally rejected by the inspector. For example, the balcony railing pickets had a spacing greater than 5 inches and the top of the rail was only 36 inches high, not 42 inches high. As a result of this rejection, the picket spacing and railing were changed. Ultimately, the inspector gave final approval after having seen the plywood deck, even though no new plans had been submitted to change the deck to have a plywood floor for tile rather than the originally permitted 2" X 6" pressure treated lumber deck. When the job was completed by Modern it was in the condition a project would normally have been left where the contractor was not responsible for laying the tile over the balcony floor. Because the floor was to be tiled, there was no reason for Mr. Kirksey to have painted the balcony floor. In addition, the contract did not require that any painting be done. Mr. Goldstein did the tile work on the deck himself although he had no prior experience in laying tile. Mr. Goldstein spoke with one of Modern's workmen about how to lay tile. This was an informal conversation, and Mr. Kirksey, the contractor, never advised Mr. Goldstein on how to lay tile. I do not accept the testimony of Mr. Goldstein that the employee of Modern who explained to him how to lay tile was the job foreman. Nothing in the contract with Modern required Modern to lay tile, or to advise Mr. Goldstein how to lay tile, so whether the person who discussed laying tile with Mr. Goldstein was a foreman is not significant. Sometime after all the work had been completed by both Modern and Mr. Goldstein, Mr. Goldstein's daughter Evette stepped out onto the balcony, and her foot and leg went through the balcony. This occurred because the plywood had not been sealed or protected before the tile was laid by Mr. Goldstein. As a consequence, the plywood had rotted under the tile. The rot also extended to the supporting joists. Broward County has adopted and incorporated into the Broward County Charter, Chapter 71-575, Laws of Florida, a Special Act of the Legislature. Both adopt for Broward County the "South Florida Building Code, Dade County 1970 edition, as amended." The Department included with its proposed recommended order portions of the South Florida Building Code, 1986 Broward County edition, for the purpose of demonstrating that the conduct of Mr. Kirksey violated Section 301(a) and 302.1(e) of that 1986 code. As a matter of evidence, the 1986 Broward County edition of the Southern Florida Building Code does not appear to apply. The Department's exhibit 7, which is "a copy of the Broward ordinance which adopts the South Florida Building Code" (Tr. 6) shows that it is the South Florida Building Code, Dade County 1970 edition which applies in Broward County. No portion of that document has been offered in the record of this case. As a consequence, there is no record evidence that Mr. Kirksey has violated a portion of an applicable code. It is true that Mr. Joseph Montagnino testified that Section 301(a) of the South Florida Building Code would not permit a change in a plan once it had been approved (Tr. 22, 104). In a case such as this, however, it is necessary for the Department to produce the text of the applicable building code, which has been adopted either by State statute or local ordinance. It cannot prove a violation through the testimony of a witness who merely characterizes his recollection of the text of an authoritative code. Moreover, other witnesses who are experts in construction trades in Broward County testified that it is common for inspectors to approve changes such as that made by Mr. Kirksey here, at the request of Mr. Goldstein, to substitute plywood flooring for pressure treated decking, without the need for amended plans or permits. (Tr. 75-77, 88- 89). Without evidence of the text of the applicable code, it is not possible to determine whether these experts, or Mr. Montagnino are correct. Since Mr. Goldstein, the homeowner, intended to do the tile work, it would not have been Mr. Kirksey's responsibility to pull additional permits for the tile work. At most, Mr. Kirksey's duty might have been to have obtained approval of amended plans, showing the slight pitch of the joists supporting the balcony floor, and the substitution of plywood and tile for 2" X 6" pressure treated lumber as the flooring for the balcony. Mr. Kirksey is in no way responsible for the inadequate preparation of the plywood surface for the application of the tile. Mr. Kirksey is in no way responsible for informal advice given by an employee of Modern, whose identity cannot be determined from the evidence in this case, to Mr. Goldstein about the proper way to prepare the plywood deck for tiling. Tiling was not part of the construction contract which Mr. Goldstein entered into with Mr. Kirksey's company. Mr. Kirksey is therefore not liable for inadequate supervision of employees on the job. Mr. Kirksey's employees performed the work required under the agreement which Modern had with Mr. Goldstein, as the parties amended it after the construction began.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board finding Eduardo Kirksey not guilty of the violations set out in Counts I, II or III of the Administrative Complaint. RECOMMENDED this 24th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of December, 1991.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
