The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed violations of Section 489.129(1)(m), Florida Statutes, by committing fraud, gross negligence, incompetency and misconduct in the practice of contracting, and whether he has violated Section 489.129(1)(d), Florida Statutes, by deliberately disregarding and violating applicable building codes with regard to the construction of two residences or additions thereto in Tallahassee, Florida.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, and related rules, which provisions regulate the admission to licensure and the licensure status of certified building contractors, impose standards for the practice of building contracting and provide a means for enforcement of these practice standards by disciplinary proceedings such as this one. The Respondent is a citizen of the State of Florida and is a certified building contractor. He is the qualifying agent for Fountaincrest Builders.. He holds license no. CBC022113. The Respondent had built a substantial number of residences in Tallahassee and Leon County, Florida, in the years in which he has practiced contracting in Leon County. On December 23, 1988, Dr. Ronald Reeves purchased a home in the High Grove subdivision located at 4770 Lancashure Lane, Tallahassee, Florida. The home had been built by the Respondent and Fountaincrest Builders, and Dr. Reeves purchased the home from the Respondent. Dr. Reeves was apparently satisfied with the quality and type of construction in the existing home which he purchased. However, he decided to construct an addition to that home. He desired to construct the addition on the end of the house encompassing the garage (the south end), in order to have room for an upstairs playroom, additional bathrooms, an office and library area, and to continue to have garage space. Dr. Reeves is a medical doctor, who operates a consulting business, using a portion of his residence as his office and work area. Accordingly, in early January of 1989, he consulted with Mr. Fountain about the possibility of constructing an addition to the home for this purpose. On January 23, 1989, he contracted with the Respondent and Fountaincrest Builders for the construction of the addition. He believed that the Respondent could best accomplish an appropriate blending of the structure and appearance of the addition with the existing house since he was the original building contractor, who constructed the house and would be most familiar with all construction details related to it and to the addition. In fact, his decision to buy the existing house was influenced by his desire to build an addition to integrate structurally and visibly with the existing house, so that the fact that the addition had been built at a later time would not be readily apparent. The Respondent assured him that he could structurally and aesthetically blend the addition with the existing house in an appropriate and pleasing manner. The parties agreed to a contract price of $40,666.00. Construction was commenced and carried through to completion, although not to the satisfaction of the owner. Dr. Reeves ultimately paid approximately $36,000.00 of the agreed- upon contract price before frequent and increasingly heated disagreements between Dr. Reeves and the Respondent culminated in the termination of the contract and the Respondent leaving the job. The construction agreed upon consisted of an enclosure of the existing garage to create an office, study and library area with a half bathroom, as well as adding a three-car garage with a staircase and a recreation room and half bathroom on the upstairs level. The contract provided and the Respondent verbally agreed that all work would be performed to the same quality and standards as that prevailing in the existing home to which the addition was to be added. Dr. Reeves and the Respondent discussed Dr. Reeves' desires and requirements for the addition, including the bathroom, study, garage, staircase, recreation room, etc.; and Dr. Reeves thereby indicated to the Respondent the general physical nature and description of the construction he wanted done. The Respondent then selected a draftsman and had the draftsman draw plans for the addition. Prevailing standards for the practice of building contracting in Florida and in Leon County require that a building contractor, who obtains the plans, should be responsible for verifying the measurements to insure that the drawings correctly account for and depict the existing construction and the proposed construction to be added to it. Verifying the measurements in this context means that the contractor should check all dimensions before construction begins to insure that the new construction depicted on the plans, including its junction with the existing building, will fit and match the existing building, both as to dimensions and type and size of materials used, as well as verifying the dimensions depicted on the plans with the actual layout of the proposed construction in the field. This helps to insure that all elements depicted on the plans, materials used and finished components of the construction will appropriately fit within the dimensions depicted on the plans and that those dimensions will ensure appropriate mating of the new construction with the old. The plans obtained by the Respondent contained the following caveat from the draftsman: While every attempt has been made in the preparation of this plan to avoid mistakes, the maker cannot guarantee against human error. The contractor on the job must check all dimensions and other details and be responsible for same. The Respondent obtained the building permit for the additional construction on January 24, 1989 and construction commenced shortly thereafter. Construction had commenced before the Respondent ever advised the owner that certain problems existed regarding differences between the dimensions depicted on the plans and the actual field rendering of those same elements of the construction. During the course of construction, Dr. Reeves perceived certain deficiencies and discussed them on a repeated basis with the Respondent. These deficiencies and the discussions concerning them, which became more and more heated, culminated in Dr. Reeves' sending the Respondent a registered letter on May 9, 1989 identifying the deficiencies which ultimately were the basis for the charges in the complaints. In Leon County, all structures constructed pursuant to a building permit must comply with the Standard Building Code; and all such structures must have a building permit issued before construction can commence. It is the builder's responsibility to be familiar with that building code and to apply it correctly to each phase of construction. The code applicable to this construction and proceeding is that contained in the Standard Building Code, 1935 Edition, with 1986 and 1987 Revisions ("SBC"). This code and its predecessor versions have prevailed in Leon County for the past 16 years. The Respondent had assured Dr. Reeves that the exterior appearance of the proposed addition would aesthetically blend with the existing house so that the junction of the addition with the existing house would not be noticeable. In fact, however, the brick on the front elevation or face of the Reeves' home, facing the street and front yard, does not properly blend with the brick of the existing home at the point where the addition joins the existing home.' Although brick of a matching size, shape and color was used in the addition, the new brick does not correctly align and blend with the old brick. After the brick work was already in place, the Respondent represented to Dr. Reeves that the blending was, in his opinion, of good quality and about the best obtainable from masons and contractors in the trade in the Leon County area. In fact, however, `the existing masonry work is substandard. The joint thicknesses vary beyond acceptable limits and the brick was not correctly "keyed in" or overlapped with existing brick courses from the existing house corner and thus does not achieve minimum standards of masonry construction prevailing in Leon County and in Tallahassee. In fact, at one point, in a noticeable area near the ground, at the junction of the old and new brick veneer walls, bricks are cut or broken and the old half brick is joined to the new half brick with a mortar joint rather than whole old bricks and whole new bricks being correctly overlapped or "keyed in". Thus, even if the Respondent intended that the blending of the brick would be of good quality and would not be readily noticeable, the execution of the masonry work was not actually carried out in that manner. The plans as originally procured by the Respondent from the draftsman depicted a garage window on the front of the addition to the home at the same level as the existing windows in the home itself. That window was depicted on the original plans as a square window. The plans contain a notation by Dr. Reeves', questioning why the window was square instead of matching the existing windows of the house in shape, which were large palladian windows (having arched openings). Because Dr. Reeves wanted the palladian window, the plans were taken back to the draftsman for revision. When the draftsman revised the plans, he indicated to the Respondent that the palladian window would cause a problem because it was higher than the square window originally depicted on the plans and, therefore, would project up into the space required for the window "header". The header is a top plate or structural component designed to span the top of a window opening at the top of a wall and which, in this case, is required to support part of the load or weight of the upstairs floor and roof assembly. The plans were nonetheless changed to include the palladian window, and the Respondent obtained the plan showing the palladian window in the garage wall, rather than the square window, prior to commencing construction. In order to fit the palladian window in the wall and still have room for a header over the window opening upon which to support the upstairs floor and roof components overlying the top of the window opening, it became necessary to frame the window in such a way that the finished window would ultimately project approximately one foot lower or closer to the ground or grade level than the existing windows in the home, which is readily apparent when viewing the front elevation. The Respondent did not inform Dr. Reeves that the window would be approximately one foot lower than the existing windows in the home until well after construction had commenced and, indeed, the window was already framed into the wall. Dr. Reeves did not actually approve of this difference in window elevations. He felt compelled to accept it since at that stage of construction, it was the only practical solution to the problem created by there being insufficient space in the wall to accommodate the palladian window if installed at the level of the existing palladian windows in the home. Although it is true that Dr. Reeves insisted on the change from the square configured window to the palladian window, the fact that the window was ultimately installed at a lower level than existing windows and is thus aesthetically undesirable due to its misalignment with existing windows was due to the Respondent's failure to verify the measurements of the plans and their depiction of the window with the dimensions necessary to the correct framing of that wall. This resulted in insufficient space required for the header or support beam system spanning the window opening necessary to support the overlying second floor and roof elements of the construction. The relatively incurable nature of the problem also resulted, in substantial part, from the Respondent's failure to advise the owner of the dimension problem created by the window configuration change before construction began and had progressed to the point that proper alignment of the window and proper window configuration could no longer be effected. It was the Respondent's duty to reconcile all discrepancies in the existing measurements in the plans for the permitted addition before the work commenced and to disclose in a timely fashion any deviations from those plans to the owner in order to effect the owner's consent or agreement on any further changes or corrections. The plan for the upstairs playroom area of the addition depicted that a bathroom or half bathroom was to be located at the southern end of the addition above the entrance to the new garage area in the southwest corner of the upstairs playroom area. The plans depicted a double window in the south wall of the upstairs playroom directly over the garage doors. During the course of the construction, the Respondent discovered that in order to construct the bathroom of the size, dimensions and location depicted on the plans, the bathroom would encroach or project in front of the attic playroom window if placed in the position depicted in the plans. The plans, themselves, do not show such an encroachment. Either the plans are incorrect in depicting the location and dimensions of the bathroom and the window in positions relative to each other, or the Respondent erred in interpreting the plans and in constructing the bathroom and window in deviation from the plan drawings. In any event, the Respondent did not offer explanation to nor seek permission from the owner for the change in location of the bathroom. The Respondent told Dr. Reeves that the bathroom would have to be moved because it would encroach on the attic playroom window, but did not tell him that the location was being changed until the bathroom was already being framed in the new location at the other end of the attic playroom on the same west wall. Thus, the owner did not approve of the relocation of the bathroom, but felt that there was no practical choice in having to accept its relocation at that point because its construction had already progressed to the point where it would be impossible to relocate it once again to its originally depicted position. Thus, based upon the Respondent's references to the apparent encroachment of the bathroom over the attic playroom window space, the owner acquiesced in the relocation. It then developed that, as a result of relocating the position of the bathroom, the bathroom door would not open sufficiently to meet building code requirements regarding the distance and space to be allowed for the opening of doors. The bathroom door still does not open fully as a result of the bathroom relocation. This is because the bathroom door is too close to an opposite partition wall and contacts that wall when opened so that the door cannot open fully. As a result of relocating the bathroom, the wall in question had to be also relocated so that the bathroom door would open wide enough to meet code requirements. As a result of the wall being relocated, patching of the plaster-type of wall coating was required. That patching resulted in a substandard wall finish with a sort of light adobe texture changing to a sort of heavy adobe stucco texture within six feet of wall space on the same wall. This is unsightly in appearance and not in accordance with the standard of construction for contractors in Leon County and not in accordance with the quality of construction which the owner was told he would receive in the new addition, as compared to the quality of the existing house. All of this resulted from the Respondent's failure to timely anticipate the bathroom location problem and inform the owner. The Respondent also failed to reconcile the plans with existing dimensions prevailing at the site in relation to the existing construction to which he was connecting the addition. This resulted in the necessity for relocation and modification of the stairwell and stairs from that originally depicted in the plan drawings. A stairwell to the attic playroom was constructed after three attempts. The last attempt, after redrafting of the plans, finally achieved a workable arrangement for the stairwell and stairs, but was not in conformity with the originally drawn plans. The draftsman for the stairwell and stairs met with carpenters on the job site to assist in resolving discrepancies between the measurements depicted in the existing structure of the house and the plans. The draftsman also had to return a second time to meet with the owner and the carpenters at the owner's request to assist in adequately locating, designing and constructing the stairwell and stairs. The Respondent was not present at either of those two meetings. The owner did not find out that the stairs had to be relocated until framing of the stairs was well underway. The Respondent failed to adequately anticipate measurement discrepancies between the existing house structure and the planned addition in interpreting the plans for the stairwell and stairs and in carrying them out. The Respondent located plumbing above the floor level in the addition and in the renovated garage of the addition. This consisted of the sanitary sewer drain line from a newly constructed half bathroom. The plans had not depicted constructing the plumbing or sewer drain line above floor level in an exposed fashion. Because the sanitary sewer line was installed above the floor level of the addition on the ground floor, it had to be "boxed in" or surrounded by a plumbing chaise where the sewer line went through the office area of the new addition. This caused a condition incompatible to some extent with the design of the structure and the owner's intent for that space. It was to be a portion of his office area, but the plumbing chaise to conceal the above floor sewer line resulted in the file cabinets, planned to be installed in that area, resting approximately six inches out into the room away from the wall, resulting in less usable floor space in that office area. Additionally, the same sewer line was exposed in one corner of the garage area of the addition suspended above the floor before it exited through the foundation wall of the building at a point above floor level in the garage. The plans did not depict such an exposed sewer line, and the owner was not aware that the sewer line would have to be located inside the addition or the renovated garage portion of the addition above floor level until he discovered them already installed or being installed in that fashion during construction. When he discovered them that way and questioned their location and configuration, the Respondent explained that in order to achieve sufficient "fall" or slope for the gravity sewer line to the septic tank, to which it was routed, the sewer line had to be constructed above floor level. While this was shown to be true and resulted in the owner being economically benefited by using the same septic tank which was already installed for the house, he was not given the opportunity to choose whether to construct them in that fashion or to, in a more expensive way, cut through the concrete floor and adjacent foundation wall to go immediately outside the building from the bathroom. This method would have been more expensive, but would have been more aesthetically pleasing. The point is that the owner was not given an opportunity to consider this departure from the plan drawings before the construction of the sewer line had progressed to the point where it was impractical to change the design and location of it once again. Roof framing trusses are very critical construction components. Roof trusses are pre-engineered, pre-constructed rafter and attendant bracing assemblies which are built by a truss manufacturer, transported to and installed on the job site. Their design, construction and placement on the roof structure of a building is to be accomplished in exact accordance with building plans and the truss manufacturer's design and specifications in order to avoid the risk of failure due to downloading of the weight of the roof of a building, as well as failure during wind uplift in storm conditions. Thus, structural engineering and contracting standards with regard to truss manufacture, installation and repair must be strictly adhered to, as depicted in Sections 1708.2.1 and 1708.2.3 of the SBC, in effect in Tallahassee and Leon County. Trusses installed over the addition on the Reeves' residence were improperly cut and after the cut was discovered, were improperly repaired by the Respondent and his subcontractors. In the course of a framing inspection, the inspector discovered that the "heel end" of one truss over the new garage addition at the Reeves' residence had been cut to accommodate the location of the top of the brick veneer wall on the outside of the framed wall of the new addition. That is to say, the bottom horizontal member of the truss projected outward from the framed wall too far and had to be cut or "notched out" to allow it to be installed in relation to the height of the top of the brick veneer wall immediately adjacent to it and to the framed wall. The Respondent did not have a qualified superintendent on the job at the time of the inspection nor was the Respondent present. When later confronted by the building inspector with this problem, the Respondent either denied its existence or had no knowledge that the truss end had been cut. He did, however, agree to repair them immediately. The repairs to the trusses were specified by engineering personnel of Alpine Engineering, who designed and built the trusses. The repairs were to be accomplished by the addition of metal reinforcing plates at certain critical junctions of the truss members. The repairs were not carried out properly, however. The corrective metal plates specified by Alpine Engineering were not properly placed and nailed. Adherence to truss specification, both as to design, installation and repair, if necessary, is critical to the structural integrity of a building, especially under downloading conditions and storm wind uplifting conditions. The failure to properly install this truss, including the cutting of it at a critical point to make it fit, and more especially, the incorrect repair after the defect was discovered, constituted a departure from generally-accepted structural engineering and contracting standards prevailing in Tallahassee and Leon County in the construction industry. It constituted a specific violation of the above-cited Sections of the SBC. The Respondent also allowed a negative grading condition to exist in the vicinity of the garage door opening on the west side of the garage. In effect, a negative slope existed in this area causing rain water to flood into the front portion of the garage. This apparently resulted from inadequate supervision of the subcontractor who performed the grading of the ground surface around the addition to the house. The grading behind the garage addition on the west side, combined with the negative slope of the driveway concrete pad in that area allowed water to flow into the garage. This condition was aggravated somewhat by the owner's failure to timely effect sodding of the graded area, as the subcontractor had recommended. The subcontractor had recommended that the area be sodded completely so as to retard the flow of water and the attendant erosion of soil from the grade behind the garage and driveway. The condition was ultimately alleviated by the owner, himself, when he built a small retaining wall of brick to redirect the flow of water away from the negatively sloped area of the driveway pad. In addition to the problem discussed above concerning the improper truss installation and repair, the Respondent also failed to insure that the roof on the new addition was properly supported and framed. The "common-framed" portion of the new roof (that part not constructed with pre-engineered trusses) joined the factory-built trusses on the existing garage. At the point of that juncture, an unsightly bulge in the finished shingle level or plane of the roof occurred, which was itself due to poor construction by failure to insure that proper measurements were taken and that the common-framed members were cut to the proper measurements so that the level of the common-framed portion and the factory-truss-supported portion of the new roof would line up in the same plane. When this condition came to the Respondent's attention, after the roof was completed, either through remonstrances of the owner or through advice by his carpenters, the Respondent promised the owner that they would correct the condition by "shimming up" or raising the common-framed roof portion so that the bulge would be eliminated and the common-framed portion and the truss-supported portion of the addition's roof would be level with each other. After the shimming or raising of the common-framed portion of the roof was accomplished. and after the "final" framing inspection, the building inspector made another inspection visit to ascertain if proper repairs had been accomplished at the bulged roof area. He observed that the roof had been raised by the placing of the shims or wedges under the ends of the common-framed rafters between the ends of those rafters and the decking of the pre-existing roof on the original portion of the house. (See Petitioner's Exhibit I, page 101; Petitioner's Exhibit F, page 63, photo 7, page 64, photo 10 in evidence) The lifting of this portion of the roof by the installation of shims accomplished a favorable cosmetic result in the exterior appearance of the roof line. It was accomplished at the expense of structural integrity, however. The shimming of the common-framed roof rafters created a dangerous risk of wind uplift during storm conditions because the holding power of the nails was largely nullified at the end of the rafters. This is because the installation of the shims resulted in the nails being removed approximately half their length where the ends of the rafters were "toenailed" into the old roof decking. In permitting the installation, and then the "shimming up" of the common-framed portion of the new roof, resulting in the partial pullout of the nails attaching the ends of the common-framed rafters to the existing roof deck beneath, no apparent effort was made (by lifting the old shingles) to ascertain if the joint of the new, common-framed rafters was with the existing rafters beneath the old roof or merely nailed through the plywood decking of the existing roof. This latter condition would result in little support for the new common-framed portion of the roof and almost no resistance to wind uplift, especially in consideration of the fact that the addition of the shims under the new rafters greatly reduced the holding power of the rafter nailing. This constitutes a clear violation of SBC 1701.1.1, requiring that wood members and fastening comply with and conform with good engineering practices. Additionally, the common-framed rafters were allowed to be set on 48- inch "centers," or a distance of 48 inches between the center of each rafter, instead of the Code required 24 inches. The plywood decking for the roof has a load rating only allowing a maximum of 32 inches of unsupported span for that decking. The inspector later required the installation of additional rafters between each of the existing common-framed rafters installed by the Respondent with the addition of horizontal purlins, or two-by-four bracing members, between the rafters in order to prevent sagging of the plywood decking at the decking joints. Lumber used for such framing is stamped with codes that correlate to the use and load tables in the SBC for the permissible uses of lumber for framing, including roof framing. The failure to set roof rafters on two-foot centers under such circumstances is a substantial departure from prevailing contracting standards in Tallahassee and Leon County. A ridge beam support column was installed beneath the ridge beam to which the common-framed rafters attached at the center, highest point of the common-framed portion of the addition's roof. This support column was established by the Respondent's testimony, as well as that of the framing carpenter involved, to be unimportant and not intended as a structural member, being merely placed there to support and hold the rafters in alignment until they had been properly nailed. The problem with it, however, is that it was poorly nailed with only three nails connecting it; and it was left in place after completion of this portion of the roof. It was merely nailed to the roof decking beneath without a supporting rafter member directly under it to bear the downward load exerted on it by the weight of the roof system above it. If construction of the common-framed portion of the roof had been performed properly, there would be no downward loading on this column; and, indeed, it would be unimportant. In the instant situation, however, the ends of the rafters, as discussed above, had been shimmed up in such a way that they were no longer securely nailed at each end. This permits the weight of the roof system, and anything on that roof above it exerted in a downward fashion, to allow potential spreading of the feet or ends of the rafters where they attach to the pre-existing roof beneath, so that they cannot bear all of the downward load of the roof. This, in turn, puts a downward loading on this column which, due to the incorrect rafter framing and installation, results in it being a support column even if it was not intended to be. It is inadequately nailed to be a support column and is inadequately attached because it is attached merely to the plywood roof decking and shingles underneath it, instead of to a pre-existing rafter under the pre- existing roof decking. The potential for horizontal spreading of the ends of the common- framed rafters where they were shimmed up could be alleviated if the proper horizontal collar beams had been in place running between the rafters, in a horizontal plane, from one pitch of the roof to the other in the common-framed portion of the roof. These were left out, however. Thus, there is no real preventive measure to prevent the spreading of the rafters and the potential that the inadequate toenailing at the ends of the rafters may become loosened with the downward loading on the roof over time. Thus, the failure to properly attach the ends of these common-framed rafters to supporting members beneath the pre-existing roof decking and to adequately nail them, coupled with the failure to install the correct collar beams between the two legs of the rafters, as well as the use of the ridge beam support column in the way in which it was used resulted in the common-framed portion of the roof on the addition being extremely inadequate in terms of complying with correct and generally-accepted building and engineering standards prevailing in Tallahassee and Leon County under the purview of the SBC. Additionally, common-framed rafters in this area were severely bowed or bent near the new roof line, due to the excessive length of the rafters used. In other words, the two-by- four section rafters used span too great a length for their cross section volume and density to adequately support the roof load they have to carry. The required cross-section for each rafter spanning the length required should have been 25 cubic inches. They were only of 8 cubic inches cross section. The potential consequence is thus severe bowing of the rafters and eventual roof failure. Because of the inadequate toenailing of the rafter ends allowed by the Respondent, the potential uplift load from high winds exceeded the dead load downward of the weight of the roof itself on the rafters by some 200 pounds at the nailing points at the ends of the rafters. That is to say, the storm wind standard in the building code results in an uplift loading on such a roof which, when considered with the dead load of the roof in a downward direction, results in an uplift potential of 200 pounds at the nailing points under the storm wind velocity condition contained in the subject standard in the SBC. Thus, there is a real potential for failure of this portion of the roof in the event of hurricane-force winds. The Respondent additionally allowed the construction of point loadings on shims under the roof framing, where the roof framing joins the vertical wall framing, which actually bear on the brick veneer exterior wall. Brick veneer is intended to be a wall finish or covering rather than to provide structural support for the wall to which it is attached or the roof above it. It can easily fail if it supports roof loading. The downward loading from the roof members at the point in question was 400 pounds per square inch. The brick veneer wall was constructed with standard "type M" mortar, which has a standard strength of 300 pounds per square inch. Thus, the bearing of "down loaded" roof weight onto the brick veneer wall, transmitted to that brick veneer wall by the use of shims or wedges on top of it bearing under the roof framing members, can result in failure of the brick veneer wall. Use of shims in this fashion violates Section 811.1.2 of the SBC It is true that the Respondent himself did not perform the roof framing in the manner discussed above, but rather it was performed by his framing and carpentry subcontractors. It is also true that the Respondent was not on the job every day, observing the installation of each roofing member, but rather had to supervise other jobs in other areas of the City or County, as well. It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs. The contractor is, however, responsible for the quantity and quality of work performed by his subcontractors and has a duty to supervise them adequately. Even if the deficient framing was done without the Respondent's knowledge, he had a responsibility to promptly see that it was corrected. This responsibility was not fulfilled in the instant situation, and the corrections called to his attention by the building inspector were either not made, or were deficiently performed when made, in the manner found above. Either the Respondent's supervision of the job was grossly inadequate or he lacked a basic knowledge of proper roofing and structural framing standards necessary for safe residential roofing construction or a combination of the two factors. The finished carpentry and plaster work in the addition was deficient in a number of respects. This work was performed by the Respondent's subcontractors and, to some extent, by the Respondent, himself. The built-in bookshelves in. the office area were trimmed with two different types of mismatched trim moulding. Additionally, the shelves warped because they spanned too great a distance for the strength of the lumber used for the shelves. This resulted in them bowing severely when loaded with heavy books, and on some occasions, resulted in them falling when loaded with books. The Respondent was aware that these shelves would be used for Dr. Reeves' books before he constructed the shelves and yet constructed them of materials and in such a manner that they would not adequately bear the weight of the books placed on them. Standard building practices require disclosure to an owner at any point when design materials are not appropriate to the construction element in which they are to be used. In using materials for the bookshelves that would not adequately bear the weight which they were designed to bear, the Respondent either negligently did not insure that lumber of the proper strength and dimension was used to bear the weight and see that it was properly braced or, alternatively, did not know that the type of lumber he used would not sufficiently bear the weight of the books, which he should have foreseen would be placed on the shelves. In response to Dr. Reeves' complaint about the quality of the bookshelves, the Respondent merely indicated to him that the materials used were the highest quality and that the shelves were constructed properly. He then suggested placing the shelf boards flat on the floor with weight on them to straighten them out. This response ignores the fact that inadequate materials and construction methods were used in the bookshelves in the first place, both as to the necessary structural strength and as to the appearance of the bookshelves, which was clearly substandard in view of the mismatched trim moulding used around the top of the shelves. Additionally, when the attic playroom windows would not close because of the improper sizing of the windowsill, the Respondent sent a carpenter, who chiseled out recesses in the windowsill to accommodate the window handle so that the window could shut in a downward direction and lock. None of the other windowsills in the house match the sill in the attic playroom windows, because it was not necessary in any of the other windows to chisel out a recess for the window handles to go down far enough for the window to lock. This problem could have been remedied by the removal of the bottom window casing member and lowering it a sufficient, small amount so that when the windowsill was replaced on top of it, adequate clearance for the handles would still exist when the window was locked so that a person's hands could fit into the window handles to raise and lower the window. Instead, the Respondent took an expedient approach at remedying this situation by chiseling out a space in the windowsills for a person's hands and then attempting to cosmetically improve it by suggesting the installation of metal cups in the windowsill to conceal the chiseled out portion. Additional finish work in the addition, which was substandard, involved the wall patching in the stairwell and the patching and finish work around the baseboards in the stairwell, which was substandard and of a rough appearance. The skylights were not finished in the addition in a way to match the skylights in the existing house, which had been trimmed out with proper moulding and covered with a light-defusing plexiglass, which was left off the skylights installed in the addition. More importantly, the handrail on the steps in the new addition was merely anchored through the sheetrock wall with toggle bolts or screw anchors, rather than being fastened or anchored in the wall studs themselves behind the sheetrock, which would have been a strong connection to pine lumber, rather than in weak plasterboard-type sheetrock material, which was the actual result. Because of the failure to attach the stair handrail to the studs in the wall, it would be possible for a person using the handrail to fall down the stairs and be injured. In fact, the handrail actually fell off the wall eventually because of this inadequate attachment. It is noteworthy that the Respondent, himself, personally participated in the installation of this handrail in a deficient fashion. The finish grade outside of the garage wall on the west side of the garage portion of the addition was higher than the floor of the garage, that is, the soil in the finish grade came up higher on the outside of that wall than did the concrete floor of the garage on the inside of that wall. This was doubtless the result of the subcontracting grader's efforts to create a valley or a slight swale around the house a short distance away from the wall so to conduct water away from the house. What resulted, however, because of inadequate reverse sloping and because the wall was inadequately waterproofed, was that water seeped through the wall in a manner which could eventually rot and deteriorate the interior wall studs and the sheetrock on the inside wall of the garage. A water line or stain is visible six inches above the floor line on the interior wall of the garage at this point, which indicates that moisture is migrating through this wall. This is a departure from prevailing standards of practice in the construction industry. An additional severe defect in the construction of the addition occurred in conjunction with the installation of the palladian window discussed above. The Respondent permitted the use of doubled "two-by-sixes" nailed or "scabbed" together as a header member or plate spanning the top of the palladian window opening in the garage. Although double two-by-sixes are stronger than a single two-by-six or even doubled two-by-fours, the doubled two-by-six member was not sufficient to bear the load from the flooring and roof system bearing downward from the room and roof above. Doubled two-by-twelves or their equivalent was required for such a load-bearing-span. When the building inspector visited the job site and observed the doubled two-by- sixes, he issued an oral correction notice to the Respondent's subcontracting framing personnel on the job. When he returned to inspect the job later, after sufficient time had elapsed to make the correction, he found that the two-by-sixes were still in place and the sheetrock installers were already covering the interior walls of the garage. This would soon have the effect of concealing the inadequate, doubled, two-by-six header. Because of this, the building inspector immediately issued a stop work order on the job. If the Respondent had properly carried out his duties in supervising this job, he would have been aware that the two-by- sixes had been substituted for two-by-twelves or their equivalent. Even if he had not initially realized that the two-by-sixes were installed and were inadequate (although a competent contractor should have), he should have seen that the two-by-sixes were replaced when the building inspector called it to his or his subcontractor's attention. A stop work order should not have been necessary in order to effect safe construction of the window header in question. Eventually the problem was corrected by having the truss company engineers involved design a steel "flitch plate" to adequately construct and install a safe window header in the space that was available. This was done by sandwiching the steel plate in-between two two-by-sixes, which then made an adequate header support member easily installed in the available space. The Respondent either negligently failed to note that the use of the two-by-sixes was inadequate or failed to adequately supervise the framing work on the job. Alternatively, if the Respondent knowingly allowed the available space for the header at the top of the window too dictate the size of the header, rather than using Code required window-opening span tables to calculate an effective alternative, he would have engaged in misconduct in the practice of contracting. The record does not clearly reflect, however, that he knowingly allowed the two- by-sixes to be used for this reason, although it does establish that he should have been aware of their use and of their inadequacy and promptly acted to correct it when it was called to his attention, which he did not do until the stop work order was issued. The Griggs House On November 10, 1986, Dr. Griggs, after having solicited proposals for construction of his residence, accepted a proposal from the Respondent to construct a residence for him and his wife at 3552 Trillium Court, Tallahassee, Florida. The cost of the construction was to be $170,090.00. The original proposed cost, prior to the entry of the parties into a contract, was $188,000.00. Certain deletions and changes were made, which resulted in the ultimate contracts price of $170,090.00, however. Construction commenced on the Griggs, residence in February of 1987. A certificate of occupancy was issued in October of 1987. During the course of construction, certain deficiencies in the house were communicated orally and in writing to the Respondent by the Griggs. These included posting of letters and the leaving of "post-it" notes on the spot of certain areas of construction which the Griggs believed to be defective or which they wanted changed for some reason. The frequent changes in construction elements proposed by the Griggs, many of which resulted from changes of mind by their concerning how they wanted certain elements of the construction performed, culminated in a strained relationship between the Griggs and the Respondent. Ultimately, they sent a number of registered letters to the Respondent concerning their dissatisfaction with the manner in which the project was being completed and concerning items they wished performed by the Respondent. Some of these letters were returned undelivered and unopened. Their differences culminated in Dr. Griggs' decision, after ten months of construction, to finish the house himself because he felt that the Respondent was not responding to his requested corrections or changes. The contract had specified that the Respondent had six months to complete the house. Some of the delay, at least, was the responsibility of the Griggs, caused by their requesting various changes in the way the house was constructed and to be constructed. In any event, after Dr. Griggs terminated the relationship with the Respondent, he called the Tallahassee Builders' Association, lodged a complaint, and received the recommendation of that Association that he hire an engineer to review the construction performed to date. Ten days after Dr. Griggs received a letter from the Respondent stating that he was leaving the job, Dr. Griggs gave the Respondent a letter terminating his contract. A number of significant construction deficiencies and errors exist in the manner in which the Respondent constructed the house. These include problems with the foundation and basement wall construction, certain framing deficiencies in the walls and roof, the front porch, inadequate water damage protection, and improper installation of correctly engineered framing components. These deficiencies are treated in detail below. The Respondent fabled to install adequate steel reinforcement and to adequately fill cores or cavities in the concrete blocks of the outside, western-most basement wall, in that area of the wall where backfall or earth rested against its outside surface. This wall was constructed of 12-inch concrete blocks, with the normal cavities or cores in each block. The blocks were laid by the brick mason in "courses" or rows, one block course on top of the course below it to a height of nine feet. Each core thus represented a vertical cavity of approximately nine feet in the wall. The architect's plans called for inserting vertical steel reinforcing rods or "rebar" in these cores or cavities, 48 inches apart, pouring them full of concrete, with the vertical rods extending to the top of the nine-foot wall where a solid concrete lintel was to be poured over and around them. The plans also called for horizontal steel reinforcing rods to be placed at two-foot intervals from the bottom to the top of this wall in the area of wall where backfill or earth was retained on the outside of, and bearing against, the wall. Although vertical steel dowel rods were installed from the foundation footing extending into the vertical concrete block wall in this west wall, they only extend in the case of each such dowel, from two feet, three inches to 36 inches above the foundation footing. The plans call for each vertical rod to extend the full height of the nine-foot wall where earth bears against it. (See Respondent's Exhibit 10 and Petitioner's Exhibit AA in evidence, as well as the testimony of Martin Page, Engineer). None of the vertical steel rod reinforcing in the 12-inch block wall was present from the bottom to the top of the nine-foot wall. None of it extended vertically more than three feet above the footing. Additionally, the cores of this basement wall were not poured solid with concrete, as specified in the plans for the earth-retaining portion of the wall. In fact, less than 50% of the cells in the earth-retaining portion of this wall were poured solid. The test corings performed by Ardiman & Associates, depicted in Respondent's Exhibit 10 and in the testimony of Martin Page and others, establishes that, through this coring method and by visual inspection thereafter, this reinforcing in the wall was missing in large part. Nearly all of the specified horizontal rebar steel was also omitted, although the Respondent maintained that he used "durawall" material on every two courses of block, instead of the specified horizontal rebar steel. He maintained this was equal to the horizontal steel as an adequate reinforcement. This was not established to be adequate, however, in terms of proper engineering and construction and, in any event, was not in accordance with the plans. If it was impossible, as the Respondent maintained, to put the horizontal steel in the mortar joints because of lack of sufficient space between the blocks in those joints, he should have called this to the architect's attention and obtained an alternative solution approved by the architect who drew the plans. Construction in this manner, for the earth-bearing portion of the west wall, renders it deficient in the structural strength demanded by the design and renders it of less structural integrity in the future with possible cracking and leaking to result. The potential for future damage caused by the inadequate reinforcing in the wall is alleviated somewhat by the fact that the earth retained by the wall does not extend to its full height, nor does the entire wall have to support earth loading. Only 28 feet of the wall has earth backfill extending upward for a portion of the wall's height. In any event, however, to correct this failure to follow the architect's design (which was adequate as designed) will be costly and time consuming, although it was not clearly shown that the problem is of sufficient seriousness to justify constructing a retaining wall on the outside of the present west basement wall at issue, as the Petitioner maintains. The Respondent constructed a front porch on the residence by placing the brick forming the porch floor over felt tarpaper and plywood, as well as framing members which were not "pressure treated." Since they are not pressure treated, they are susceptible to water-induced rot damage. The felt paper, itself, is not impervious to water and is not adequately waterproofed. Accordingly, the non-pressure treated wood beneath the brick and felt paper, including structural members under the porch, are already rotting; and the bricks and mortar of the porch are loose due to being placed on an unstable, water-damaged surface. The water runs down into and erodes into the basement space below and adjacent to the porch location. The plans originally called for a roof to be placed over this porch floor which would have alleviated the water damage presently being caused. Because of a change agreed to by the Griggs and the Respondent to place three windows above this porch, the Respondent deleted the porch roof. Although the deletion of the porch roof may, indeed, have been necessitated by the addition of the three windows which the Griggs desired, the Respondent failed to explain to them the consequences of deleting the protection of the roof over that porch; and, indeed, knowing that the roof was to be deleted, the Respondent should have taken steps to insure that the porch floor was constructed of waterproof, stable materials. As constructed, there is a load-bearing wall on part of the support system that underlies the brick porch, creating a dangerous situation over time because of weakness caused by water- induced wood rot. The construction of the porch was shown not to comport with the SBC, particularly Section 1703.15, because it was not constructed with pressure- treated wood or in the alternative, because it did not have an impervious material between the brick porch floor and the wood beneath. This method of construction also violates SBC at Section 1409.4 because the masonry floor rests on a combustible wood material. Additionally, the exterior trim on the house lacked proper flashing and where it contacted concrete was not pressure treated. The windowsills were improperly installed so that the drip edge on the window casing could not function properly in conducting water away from the house. Dr. Griggs requested that the Respondent construct a crawlspace storage area adjacent to the finished portion of the basement, and the Respondent agreed to do so. This space was not included in the original plans, but the Respondent agreed to construct it at Dr. Griggs' behest in order to accommodate Griggs' wishes. He never informed Dr. Griggs, however, that in order to get sufficient space in the storage area, the Respondent would have to excavate the earth in the area in such a way that the floor slab poured in this basement crawl space would be significantly lower than the existing perimeter foundation footing. This resulted in exposing the soil under the existing foundation footing above the poured slab. This allowed the soil under the foundation footing to erode due to passage of water from outside the house, particularly from the area of the front porch, so that soil was eroded from under the foundation footing in this area. The creation of such a condition ir1i the crawlspace storage area is a serious structural problem. It could cause, if allowed to progress uncorrected, cracking of the foundation or collapse of the walkway above it on the outside of the house. This condition is a serious departure from prevailing standards of construction practice for similar foundations in Leon County and violates the SBC, specifically Section 1302.1. This provision requires that the bottom of foundation footings and foundations extend no less than 12 inches below the finished earth grade. By excavating out and installing the slab floor beneath the foundation footing, the result was that the foundation footing was resting approximately 12 inches above the finished grade on the inside of the footing. The earth beneath the exposed footing eroded away until the matter was corrected by the installation of brick and cement "parging" to retain the earth beneath the footing. This corrective measure was specified by the architect for the job and was eventually accomplished. In the same area of the basement crawlspace, the Respondent also permitted non-pressure-treated bottom plates to be installed in direct contact with the concrete, which can promote water-induced rot in violation of Section 1703.4, SBC. Although the Petitioner charged that the basement floor slab, itself, was not poured within an acceptable tolerance of thickness, the evidence, consisting of the results of the Ardiman engineering investigation of this matter, in evidence as Respondent's Exhibit 10, showed that the basement floor slab averaged approximately 3.97 inches thick, which is sufficient to meet the building code requirements. It was shown, however, that the slab does not rest on top of the foundation footings on the southwest or north portions of the foundation, as specified in the plans. Although the Respondent maintained that pouring this slab as a monolithic slab with thickened portions under the load- bearing areas successfully addresses this problem, in fact, the evidence shows that some of those load-bearing, thickened portions of the slab are not the full required ten- to twelve- inch thickness, but rather are on the order of six to nine inches thick, with reinforcing steel not encased in concrete at at least one point. This is an insufficient footing under the interior walls of the basement. Thus, although the slab is of a sufficient average thickness to meet the building code requirements, the thickened portions of the slab are not sufficient to support load-bearing walls within the context of compliance with good construction and engineering practices established by the Petitioner's expert witnesses. A floor truss or joist was installed upside-down, due to a subcontractor's mistake. In order to properly comply with engineering specifications, the addition of "gusset" plates was required according to the engineering specifications furnished by the truss manufacturer. The repair was appropriately made. Misplacement of this truss should have been readily apparent to the contractor if propel supervision had been effected on the job. The particular circumstance of the truss placement, configuration and loadbearing requirements made structural failure as a result of its upside-down placement unlikely, however. The Respondent failed to insure, by adequate supervision, that certain walls were properly framed according to the architect's plans. In this respect, the ceiling height for the basement was designed in the plans to be nine feet; but the Respondent allowed the walls to be framed in such a way as to result in an eight-foot ceiling height. The upper floor is framed to accommodate a nine- foot ceiling according to the plans, however. Three load-bearing door headers (load-bearing members spanning the top of door openings in the basement) were constructed in such a way as to not be in contact with the wall framing above or the vertical supports or "cripples" below. The cripples were cut too short. The owner was required to take the remedial measure of hiring a carpenter, who jacked up the support headers above these door openings to the correct load-bearing positions and then replaced the cripples with cripples of proper length so that they would bear properly against the headers and prevent any sagging or cracks from developing in the walls, or improperly-fitting doors above. This could result from sagging of the wall plate, wall and floor above these improperly fitted headers and cripples. Additionally, horizontal purlin supports needed to be added to interior walls between studs in the basement as a remedial measure, after the Respondent ceased work and left the job site, in order to prevent bowing of studs from downward loading. The endmost stud of a non-load-bearing wall in the basement contacted or "butted" against a concrete block wall. It was not treated to resist moisture-caused rot. The use of non-pressure-treated studs at points where that wood must bear against concrete is contrary to prevailing standard building practices, since only pressure-treated rot-resistant lumber should be in contact with moisture-prone concrete. This condition had to be repaired by a carpenter retained by Dr. Griggs. Common-framing was constructed on top of and between two trussed roof areas. The roof joists were insufficient for the spans covered,. and the bearing points of the ridge beam were improperly braced. The effect of this was to create a soft or flexible roof section in this common-framed area. This means that with a live load atop the roof, such as a person walking on the roof, the roof would `flex, which can cause failure over time as the roof ages due to flexing, which will cause leakage. The original plans for the roof call for a polynesian-type roof line, that is, with gables and a compound or cantilevered pitch. The home was built, however, with a conventional, straight-pitched roof. It was not established, however, that Dr. Griggs and his wife had never authorized the change from the polynesian roof line to a straight pitch. Rather, there had been discussions between the Respondent and the Griggs before entering into the contract about ways in which they could save costs. In response to these discussions, the Respondent had Ben Sheppard, the draftsman for the truss system, redesign the roof system to depict a straight or conventional pitched roof. The weight of the evidence indicates that the Griggs approved of this change in the roof before entering into the actual contract. Upon questioning of Dr. Griggs by roof truss installer, Reggie Brown, when the trusses were delivered to the site and when the trusses were installed on the upper floor framing, concerning them not providing for the cantilevered, polynesian pitch, Dr. Griggs acknowledged that he and the builder had agreed to the different design. The testimony of Marvin Moran, a general contractor and the superintendent of the job, indicates that on an occasion when he, Reggie Brown and Dr. Griggs were present together on the job site with the construction plans, and were discussing the roof design, at the sheathing stage, Dr. Griggs again acknowledged that he and the Respondent had agreed to the reconfiguration of the roof. This reconfiguration was taken into account in arriving at the final contract price depicted above. While the best practice in the construction industry indicates that an owner and a builder should execute a written change order for such a major alteration of a construction project, it is common practice for such changes to be done by verbal agreement. In any event, the preponderant evidence of record indicates that this change was effected prior to the formal contract involved herein being entered into by the Griggs and the Respondent. Finally, the Respondent did not insure that proper flashing was installed between the rear deck surface and the house. The flashing was necessary, especially since the rear deck level was the same level as the interior floor of the house and was necessary to prevent water from penetrating the house walls at the point where the decking joins the house. Although caulking was used to substitute and was performed with an appropriate material, the mere use of caulking in such an application is not accepted, good building practice and does not comport with appropriate building and contracting standards in the Leon County construction community.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, 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 suspending the Respondent's building contracting license for one year and requiring the Respondent to complete such continuing education courses, in those areas of residential contracting represented by the deficiencies found herein, as the agency deems appropriate. DONE AND ENTERED this 24 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 24 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2954 Petitioner's Proposed Findings of Fact 1-17. Accepted. 18. Accepted, except to the extent that the clear and convincing evidence of record does not establish that representations made by the Respondent were fraudulent because it has not been established that he made any misrepresentations knowing at the time that they were made that they were false or that he did not intend to fulfill them. 19-23. Accepted, except that the first sentence of No. 23 is a conclusion of law and not a proposed finding of fact. 24-27. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 31-33. Accepted. 34. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 35-42. Accepted. 43. Rejected, as constituting a conclusion of law, rather than a proposed finding of fact. 44-57. Accepted. 58. Rejected, as subordinate to the Hearing Officer's finding of fact on this subject matter, in that although the bookshelves were clearly substandard, there has been no proof that the Respondent made any fraudulent misrepresentation as to the quality of materials and construction, but rather differed in his opinion of the quality of the materials and workmanship from the opinion of Dr. Reeves and was negligent in the selection of materials and in the use of them in constructing the shelves. 59-68. Accepted. 69-75. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 78-84. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not supported by clear and convincing evidence of record as to the matter of basement slab thickness itself. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 88-93. Accepted. Accepted, but not in itself materially dispositive of the issue concerning the pitch of the roof. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Heading Officer's findings of fact on this subject matter, and as not, in accordance with the clear and convincing evidence of record, in that it is found above that the owners did consent to the alteration in the roof configuration or design. Accepted. Accepted. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact have all been considered and in some instances, accepted, and in many instances, rejected in the body of this Recommended Order. It is not possible, however, to separately rule on improperly stated proposed findings of fact because the Respondent did not separately state the proposed findings of fact, but rather intertwined them with factual and legal arguments, discussions and recitation of evidence and testimony. Consequently, separate and coherent rulings on individual proposed findings of fact cannot be made. All factual and legal arguements raised in the Respondent's post-hearing pleading styled "Recommended Order" have, however, been considered and weighed in the rendition of this Recommended Order. COPIES FURNISHED: Mr. Daniel O'Brien Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth E. Easley, Esq. General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert D. Newell, Jr., Esq. NEWELL & STAHL, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Robert L. Fountain, Jr., Pro Se 2124 Shady Oak Drive Tallahassee, FL 32303
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct and if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida licensed professional engineer, holding license number PE 45941. There have been no prior disciplinary proceedings against the Respondent. The Respondent acted as the general contractor in the construction of his personal residence, which is the structure at issue in this proceeding. There is no evidence that the structure, as built, fails to meet applicable standards and requirements. On December 16, 1999, the Respondent submitted to the City of Clearwater Building Department, 29 sheets of building plans for alterations to the Respondent's residence. Of the 29 sheets, three were apparently signed and sealed by an engineer identified as Shields E. Clark, P.E., who did not testify at the hearing. Nineteen of the 29 sheets contain the statement, "[a] windload review of this plan has been made by Shields E. Clark, P.E. and it is certified to be in compliance with Section 1606 of the Standard Building Code 1994." The plans apparently confused the Clearwater Building Department official who reviewed the material. He asked the Respondent to meet with him and explain the project. The meeting occurred on or about January 10, 2000. During the meeting, the Respondent signed and sealed 22 of the 29 sheets; afterwards, the reviewing official noted they were unsigned. Four sheets of the initial plans were not signed and sealed by anyone. The Clearwater Building Department relies on the engineering certification in determining whether plans should be approved. The Respondent signed and sealed the plans as a professional engineer and the plans were approved. As to all of the plans submitted by the Respondent to the Clearwater Building Department, the Petitioner presented the expert testimony of James Owen Power, a Florida licensed engineer. Mr. Power's testimony was persuasive and is credited. (Sheet numbers identified herein reference the page numbers in Joint Exhibit 1.) According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on December 16, 1999. The deficiencies noted by Mr. Power include: the failure to specify which of two methods was used in calculating compliance with Southern Building Code windload requirements; depiction of a three-foot overhang projection on sheet 12 which is not depicted on other pages in the same plans; lack of a footing under a center post (sheet 19); lack of a beam at the center post to indicate what is being supported (sheet 21); inadequate support of the center post (sheet 22); a failure to provide for transfer of a portion of the roof load to an appropriate support (sheet 22); inadequate support for the load being carried (sheet 23); and depiction of a sample wall section atypical of all conditions throughout the proposed construction. On March 15, 2000, the Respondent submitted a 22-page set of drawings to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 14, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 15, 2000. The deficiencies noted by Mr. Power include: the failure to indicate whether differences in foundation, floor and roof framing, between the initial plan submission and the March 15 submission, were to be regarded as substituted plans or changes to the initial plans; the failure on five sheets to refer to windload certification; the failure to correlate position of cross beams to posts (sheet 43); differing numbers and locations of cross beams within the plan submission (sheets 43 and 44); a cantilevered wall that is identified without appropriate detailing; omission on sheet 45 of a "transverse" beam depicted on sheet 44; depiction of a wall not previously shown and two previously un-shown beams over the garage door (sheet 46); the appearance of a previously un-shown and unspecified pipe column in the middle of the garage opening (sheet 46); the lack of proper identification of a post and partition depicted on the column view (sheet 47); inconsistent identification of the dimensions of a balcony overhang (sheets 43, 49 and 52); and alteration of original rafter sizes without notice of the change (sheet 63). On March 28, 2000, the Respondent submitted an 11-page set of drawings and two sheets of cost estimates to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on March 28, 2000. The deficiencies noted by Mr. Power include: omission of a footing and pipe column depicted in the second set of plans without notification of change (sheet 31); the inability to determine the intent of "back addition lower plan" (sheet 32); alteration of the notation of a wall from the second set of plans (sheet 33); inconsistent depiction of the new wall foundation at the left side of the structure (sheet 33); inconsistent identification of the footing at the center of the garage opening (sheets 31, 33, and 34); inconsistent depiction of footers (sheets 34 and 35); inconsistent depiction of columns and beams (sheets 33, 34 and 35); and alteration in the manner of depicting partitions within the structure from the depiction contained in the initial submission (sheet 37). On June 12, 2000, the Respondent submitted another 11- page set of plans to the Clearwater Building Department that appear to have been signed and sealed by the Respondent on March 28, 2000. According to Mr. Power's testimony, a number of deficiencies exist in the plans submitted on June 12, 2000. The deficiencies noted by Mr. Power include: identification of beams as "optional" without defining the requirements of either option (sheets 64 and 65); depiction of knee braces not previously identified in previous plans (sheet 65); inconsistent depiction of partitions (sheets 65 and 69); alteration of wall width from second plan submission without adequate notification of change (sheets 49 and 66); depiction of knee braces without proper consideration of lateral load (sheet 66); depiction of a diagonal structure the intent of which is unclear (sheet 68); inconsistent depiction of a center joist (sheets 38 and 69); alteration to the previous depiction of rafters without notification (sheet 67); deletion of footing and a column in the center of the garage opening without notification (sheets 68 and 70); and the addition of a door to the left of the garage opening without notification of change from prior submissions. The Respondent's building plan submissions fail to meet professional standards. Structural elements were added, altered, and deleted without appropriate notification, and within submissions, elements were inconsistently depicted. The Respondent's failure to meet professional standards resulted in building plans that were ambiguous and unclear.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order reprimanding Phillip J. Matonte, P.E., for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 11th day of April, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2002. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 J. Robert Griffin, Esquire Tilton & Metzger, P.A. 1435 East Piedmont Drive, Suite 210 Tallahassee, Florida 32308 Natalie A. Lowe, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Garry Vermaas, Ph.D., P.E., committed the acts alleged in the Administrative Complaint (as submitted in the parties' joint pre-hearing submission).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: At all times material to the allegations in the Administrative Complaint, Respondent was a licensed professional engineer with License No. PE 61163. Respondent was the structural engineer of record for a 13-unit apartment building complex located at 214 Salamanca Avenue, Coral Gables, Florida. As such, on or about January 24, 2007, Respondent signed and sealed the last iteration of structural engineering documents for the project which were filed with the City of Coral Gables, Florida, as part of the application for a building permit. Respondent was the structural engineer of record for the above-referenced project as that term is used in Florida Administrative Code Rule 61G15-31. Petitioner is charged with providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers pursuant to Subsection 471.038(4), Florida Statutes. The Florida Board of Professional Engineers regulates the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. The Administrative Complaint alleges that Respondent's structural engineering plans were deficient and failed to comply with acceptable standards of engineering practice, citing five instances: The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. The block parapet walls at Elevation +49 and +53 are, also, not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The wall sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. The masonry wall on Gridline A at the first level is not adequately designed in that it is overstressed when compared to the Florida Building Code specified wind loads. On Sheets S1.03 and S1.04 Respondent's structural engineering plans show a concrete masonry wall at Gridline A extending from reference lines 1.1 to 1.8 on the west side of the building; the floor-to-floor distance is 15 feet. The wall is subject to appreciable gravity load from above through vertical connective rebar. Post tension design of the floor system is unique; when the post tension concrete slab deflects, the vertical rebar will transfer the load to the wall in question. As a result of this loading, the subject wall receives loading in more than one direction and should be defined as a main wind force resisting system and should be designed as it is in Respondent's plans. The suggestion by Petitioner's experts that the wall is overstressed by 22 or 65 percent is a result of applying conservative values and failing to include the vertical load on the wall. Within the conservative and non-conservative values allowed by the Florida Building Code, there could be a 400-percent yield difference. The conclusion that the wall is overstressed by 22 or 65 percent does not prove negligence. The block parapet walls at Elevation +49 and +53 are not adequately designed insofar as they are overstressed when compared to the Florida Building Code specified wind loads. Average vertical bar spacing, as used by Respondent in the design of the subject parapet walls, is allowed by the Florida Building Code and is called the "plate" method of design. Petitioner's experts used calculations based on the "strip" method, also allowed by the Florida Building Code. The resulting suggestion that the parapet walls are overstressed by 24 or 62 percent is a result of the differences in analysis of the two methods and the application of conservative values. As stated above, the application of conservative or non- conservative values can result in a 400-percent yield differential. Wall Sections A and B on Sheet 1.10 show tapered balcony slabs with a one-inch step. The Wall Sections are inconsistent with the Typical Cantilever Balcony Detail on Sheet S2.01 and reduce the cover on the tendon to less than one inch required by the Florida Building Code. The subject wall sections are full wall sections and are not inconsistent, but demonstrate, generally, what the wall will look like. The slab design does not remain constant. The Typical Cantilever Balcony Detail on Sheet S2.01 shows that the post tension slab steps down at the top and bottom. The one-inch step-down prevents wind-driven rain from flowing in from outdoors. The resultant one-inch step-down on the bottom of the slab relates to maintaining proper clearance on the tendon. The detail (Typical Cantilever Balcony Detail on Sheet S2.01) demonstrates the one-inch step-down and would not be confused by an experienced post-tension subcontractor. The plans consistently refer to an eight-inch slab. The placement of reinforcing bars in the bottom of the cantilevered balcony slabs on Sheets S2.02, S2.04 and S2.06 cannot be reasonably determined from the information on these sheets. The exact placement of mild reinforcement in post tension design is not important. These plans are adequate in that they label the location of the bars (top or bottom) and clearly describe how the bars should be distributed. This item, according to Petitioner's expert, is not related to design, but to drawing preparation. Testimony revealed that the information used is imported through AutoCad software. These notes are clearly understandable to someone experienced with post tension design and construction. Sheet S2.10 shows that the stair adjacent to the elevator must rise from the fourth floor at Elevation +35 to the level of the pool deck at Elevation +49. This is a rise of 14 feet and contrasts with the stair at Gridline A, which rises from the fourth floor and terminates at the fifth floor at Elevation +45. As a result, the stair adjacent to the elevator requires an additional stair run and a landing neither of which have been addressed in Respondent's design documents. There is a similar staircase from the ground floor to the fifth floor elevation. An ancillary detail, Section G on Sheet S1.13 shows how to get from the fifth floor slab to the pool deck. Section G has three different staircases that show the contractor how the stairs should be constructed. The additional stair run is addressed on this section. The design and drawings comply with Section 1603.1 of the Florida Building Code, which states that "[t]he design loads and other information pertinent to the structural design required by Sections 1603.1. through 1603.1.8 shall be clearly indicated on the construction documents." Drawing presentations and which portions of the structure require more detail, is largely an opinion matter for each engineer to decide as long as he complies with the Florida Building Code. Respondent's expert witness, each of whom had excellent credentials and vast experience with post-tension design of floor systems, opined that Respondent's structural engineering documents for the subject project were not negligent in any way, and Respondent's drawings and calculations conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public. Their testimony on the five alleged areas of negligence and their general conclusions are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Board of Professional Engineers, issue a final order dismissing the Administrative Complaint filed against Respondent, Garry Vermaas, Ph.D., P.E. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 N Monroe Street Tallahassee, Florida 32399-0792 John Jefferson Rimes, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Garry Vermaas Ground Floor Engineering 10125 West Colonial Boulevard, Suite 212 Ocoee, Florida 34761 Patrick Creehan, Esquire Chief Prosecuting Attorney Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Ronald L. Hurt, was a licensed professional engineer having been issued license number PE 0032435 by petitioner, Department of Professional Regulation, Board of Professional Engineers (Board). Respondent was first licensed as a professional engineer in Kentucky in 1965 and received his Florida license in 1982. When the events herein occurred, respondent was a shareholder in and served as president of Anchor Engineering Company (Anchor) in Naples, Florida. He also supervised the structural engineering portion of the firm's business. He has since terminated that relationship and is now affiliated with another engineering firm in the same city. In August 1989 the City of Cape Coral (the City) issued an invitation to various engineering firms, including Anchor, to submit proposals to investigate the structural integrity of a seven year old abandoned building owned by the City and located on St. Jock Boulevard. The City was considering whether to complete construction of the building and convert it into a community theater or to demolish the existing structure and build a new facility. At that time, the building was approximately 90% complete but without a roof and was between 6,000 and 8,000 square feet in size. Anchor was the successful "bidder" and respondent ultimately submitted a final written report to the City. Relying upon that report, the City decided to continue completion of the building. The project was successfully completed and is now known as the Cape Coral Community Theater. However, an engineer from another firm in Cape Coral obtained a copy of respondent's report, reviewed it, and based upon his belief that the report was deficient, filed a complaint against respondent with the Department of Professional Regulation (DPR). That prompted an investigation by DPR and the issuance of an administrative complaint charging respondent with negligence in the preparation of his report. The Scope of the Engagement The City's decision to seek a structural report came after another professional engineer, James A. Schivinski, had performed an inspection and prepared a "general physical condition report." The work was performed on an undisclosed date by Schivinski without charge and as a favor to the City. After making a field inspection, Schivinski recommended the City have a structural analysis of the building performed by a professional engineer. This was because he had observed "serious defects in the masonry wall construction of the building". Until a further assessment of the structural integrity of the building was made, Schwinski recommended that "work (should) not be continued." 1/ Schwinski's conclusions and recommendation are contained in a written report submitted to the City and received in evidence as petitioner's exhibit 2. Acting upon Schivinski's recommendation, on August 1, 1989, the City, through its contracts administrator, Al Melendez, telephonically solicited proposals from various engineering firms. Because the City desired to make a decision on the building as soon as possible, Melendez asked that each firm submit its proposal by the following day. Anchor did so and proposed to complete the work for $4,500. Other proposals included one by the engineering firm of Jenkins and Charland, which submitted a proposal in the amount of $14,000. Anchor's proposal was accepted by the city on August 2 and Anchor was told to complete a written report within two weeks from the date on which it was selected. The scope of the engagement was not reduced to writing by the City. However, according to Melendez, Anchor was to look at Schivinski's report, review a set of original drawings, and advise the City if it could "reasonably finish up the building." Anchor was not requested to perform testing to verify the strength of materials nor to furnish a final design report for the project. Further, the City did not expect Anchor to give them actual cost estimates for performing any required modifications. In its response to the invitation, Anchor agreed to (a) perform an on- site structural investigation of the existing structure ($1500), (b) review existing drawings of the structure ($1800), and (c) issue a written report based on the findings in the first two steps ($1200). The City agreed with this scope of services and Anchor proceeded in accordance with its proposal. As noted earlier, both the City and Anchor understood that no testing of materials (e. g., compression, prism and compaction tests) was to be performed by Anchor but instead would be done at a later time by a specialized testing firm if the City decided to continue with the project. The Preparation and Issuance of the Report Two Anchor professional engineers, Tony Boumitri and Paul Endres, promptly visited the building site on two occasions and made a visual inspection. In addition, respondent made two subsequent visits to the site to confirm his colleagues' conclusions. They also reviewed Schivinski's report and the original building plans for the structure. After a preliminary draft was prepared by Boumitri on August 11, 1989, respondent met with city officials for three hours to explain its content, answer questions and determine if further information was required. A final report entitled Structural Investigation Analysis and Report was then prepared by respondent, and another three-hour meeting with city officials was held to explain its content. On August 18, 1989, respondent signed and sealed the final report and delivered it to city officials. Thereafter, respondent met for several hours with the full city commission and gave an oral presentation concerning his report. The record raises an inference that a transcript of the commission meeting is available, and respondent's remarks and explanations given to the commission are available for review by any interested party. Among other things, respondent advised the City that his report was a preliminary report, that testing and confirmation of materials was still required at a later date, that the structure did not meet code requirements, but that with appropriate modifications the building could be used for its intended function. The Genesis of this Complaint On an undisclosed date after the report had been filed, a professional engineer, Jack T. Sauerland, who happened to work for the engineering firm which had submitted the unsuccessful $14,000 bid, requested a copy of respondent's report from the City. Ostensibly for the purpose of acting as a concerned citizen and taxpayer, Sauerland reviewed the preliminary and final reports, noted what he perceived to be various deficiencies in the final report, discussed those observations with certain city employees, and filed a complaint against respondent with DPR. That precipitated the filing of this action against respondent. Standards Governing Professional Engineers Both parties agree there are no written standards which set forth the specific matters that a professional engineer must put in an engineering report. According to the Board's expert, this is because a report can be used for a number of purposes and it would be difficult to write a rule that would fit all situations. However, the Board expert identified two broad standards, both set forth in Rule 21H-19.001(3)(a), Florida Administrative Code, that must be followed by a professional engineer when drafting a report. First, the engineer must use "due care" in preparing the report, and secondly, he must have "due regard for accepted engineering principles". According to the expert, these principles include such things as technology, mathematics, logic, and the clear and precise use of language. In other words, a report must proceed logically from evidence to assumption to analysis to conclusion and do so in clear and precise language. It is also inappropriate to omit information from the report even if the client is aware of the information being omitted. This is because persons using the report at a future time would not be privy to that omitted information and would be unable to evaluate its reliability. Thus, while an engineering report must satisfy the clients, it must also be complete enough to safeguard the public health, safety and welfare. The expert also opined that when an engineer's client is a governmental entity, such as a city, it is improper to supplement a written report by oral communications because (a) third parties relying on the written report at a future time would have no way of reviewing those oral comments and (b) the public records law dictates that such reports be reduced to writing. The Contents of the Report The report in question has been received in evidence as a part of petitioner's composite exhibit 6 and consists of ten pages including photographs. The written portion of the report is four and one-half pages. In addition, respondent submitted twelve pages of notes and calculations in conjunction with the report. The report is divided into six sections, including summary of findings, background information, field investigation, analysis, recommendations and conclusion. The scope of the report was described on page one as follows: Based on the data obtained, and based on the available drawings, Mr. Boumitri and Mr. Endres performed their structural analysis to deter- mine the adequacy of the structure, in its present condition, to serve its intended purposes. The intent of this investigation and report is to determine whether the existing structure can be safely completed to serve its intended purposes according to sound engineering and construction practices. Under the field investigation portion of the report, there are eight evidentiary findings. Because they (and other portions of the report) are in issue, they are repeated below: The foundation seems to have been con- structed according to the architectural plans, based on the test pits that have been excavated at three different locations of the building. Some of the pilaster columns have not been completed or may not have been constructed according to the architectural plans. Some of the pilasters on the north side as well as the south side of the building do not extend to the top of the tie beam. Using an "R" meter we have been able to determine the actual location of the existing bars. Some of the vertical reinforcement is mislocated and other vertical reinforcement is missing. Most of the horizontal joint rein- forcement was placed at approximately 4'-0" O.C. Numerous cracks were found in the walls and slabs. Other cracks or separations exist between the walls and the concrete masonry pilasters as shown on the north wall of the building. Most of the masonry units were constructed as running bond, yet some of the units were constructed as stack bond. Some features of less importance such as the interior stairs on the East end of the building are rotated 90 degrees from their original design as shown on the plans. Other walls and windows may have been added, de- leted or relocated and they no longer conform to the architectural plans. The workmanship in placing the masonry units varies from adequate to far below ade- quate level of today's standards. Most of the walls are in a wavy condition which may require a varying thickness of stucco finishes. Immediately after the foregoing findings, the report contains a section entitled "Analysis" consisting of six paragraphs, with the caveat that such analysis "takes into consideration the lack of inspection." They read as follows: The foundation seems adequate to carry the intended load in the interior locations around the stage and exterior locations as well. The number and location of the existing vertical reinforcement is not adequate enought to carry the intended lateral load and doesn't meet the minimum requirements of the 1979 edition or the 1985 /86 edition of the "Standard Building Code". The quantity and spacing of the existing horizontal joint reinforcement is adequate to meet the minimum area of steel reinforcement specified in the 1985/86 edition of the "Standard Building Code" for reinforced masonry. The height to thickness ratio of most of the masonry walls, interior and exterior, is above the recommended value in the 1979 or the 1985/86 edition of the "Standard Building Code." The beam over the stage area appears to be capable of carrying its intended load. This beam, due to the direction of the joists carries little of the roof load and is loaded nearly to its intended load presently. Little or no deflection is currently visable (sic). The steel joists appear to be capable of carrying their intended load based on data given by Tom Rayburr of Florida Aluminum. There are also five recommendations in the report which follow the analysis. They read as follows: A field survey be implemented to document the as built features of the building. Finish the construction of all pilasters as shown on the architectural plans. Provide a #5 bar in each pilaster, dowel the bottom end into the footing, dowel the top end into the tie beam, then fill with grout. Where the existing vertical reinforcement, whether in term of pilasters or filled cells, exceed the 5'-0" maximum spacing, provide a #5 hook bar at each roof joist location or at 5'-0" maximum spacing where no roof joist exits at exterior walls and at 13'-0" o.c. at interior walls. Weld the bar directly to the plate or to the bar of the tie beam. The other end of the #5 bars will extend to the bottom of the wall and will be drilled and epoxied into the foundation using epoxy non-shrink grout. Form and pour a minimum 8"x8" pilaster around it subject to Architectural approval. Where a pilaster is not feasible, provide a flat A36 steel bar (2"x1/4" minimum) instead of the #5 bar. The flat steel bar shall be hooked top and bottom to the tie beam and footing respectively. Alternatively, instead of the proposed pilasters, place 6x6 W2.XW2.9 W.W.F. flat sheets along both faces of the masonry walls. A minimum of 1" thick non-shrink grout shall be placed on each wall face. The welded wire fabric mesh shall be connected with metal ties thru the masonry wall at 32" intervals. Stucco finishes with standard metal lath shall be provided or as specified by the Architect. The ultimate conclusion of the report reads as follows: Although the building in its present condition does not meet the minimum code requirements, it can be reinforced in an efficient manner that would render it capable of serving its intended function. Criticisms of the Report It should be noted that the agency did not allege nor prove that the scope of investigation and review by respondent in preparing the report was improper or that the client was dissatisfied with his services. Also, the Board does not question the competency of respondent. Rather, the Board contends that respondent was negligent by failing to include greater detail and explanation in the written report. To support this charge the Board presented its consulting professional engineer, James O. Power, and the testimony of Sauerland, the complaining witness and also a professional engineer. Besides himself, respondent presented the testimony of two professional engineers, an architect, and the city engineer. The more credible and persuasive testimony is set forth below. It is true, as respondent points out, that in preparing his report, the agency's consulting engineer did not review the original building plans, make an on-site inspection or read the transcript of the city commission meeting when the report was formally presented to the commission. Thus, the expert was not privy to the many discussions between respondent and the City during the preparation of the report. However, Power considered none of these matters to be essential since his criticisms related only to the actual contents of the report itself. The DPR expert first found that "the scope of the investigation was never clearly defined" in the report. Although the witness did not specifically identify which portion of the report he considered to be deficient, it may be inferred that the witness was referring to the statement of intent (scope of report) recited in finding of fact 12 and the following language found in the first paragraph of the "Field Investigation" section of the report: Our field investigation has been performed for the purpose of establishing whether the structure is constructed according to plans and specification by Stout & Gerald, Inc. Architects of Cape Coral, Florida. According to Power, the report should have included a description of services to be provided by respondent to the client pursuant to their agreement. This would include such matters as whether or not (a) testing would be performed, (b) the structure would be evaluated for code compliance, (c) a design for corrective measures would be furnished, (d) a cost estimate for such modifications would be given, and (e) the investigation, evaluation and recommendations would be based on sound engineering principles. Although the parties clearly understood the scope of the investigation through several meetings and conversations, the written report itself did not adequately memorialize that agreement. 2/ Therefore, respondent is in technical violation of the engineering principle that he use due care in preparing the report. The expert also pointed out that respondent merely stated his assumptions without giving any justification for the same in the report or attached calculations. Those assumptions pertained to the foundation capacity, strength of the reinforcing steel, strength of the concrete, and strength of the concrete block masonry. While DPR's expert found most of the assumptions to be reasonable, the report itself does not state on what basis (e.g., testing, estimates, visual inspection, industry standards, experience, or other factors) the assumptions were made. Unless the logic underlying the assumptions is disclosed, a third party using the report would have no way to ascertain the reliability of the conclusions. While respondent may have orally explained the basis for his assumptions to city officials, and there was no uncertainty on the part of the client, a technical deviation from the due care principle occurred through this omission. Finally, the expert opined that the report contained no logical justification for the conclusions and recommendations. Put another way, the analysis proceeded illogically from the four assumptions in the report. For example, even though the report found a number of deficiencies in the masonry construction, including findings that the work did not adhere to the original drawings and that ratios did not meet building code requirements, the analysis concluded that the masonry work was done in accordance with "acceptable standards under engineering inspection." To this extent, the written report deviated from the engineering principles of logic and clear and precise language, and that it be prepared with due care. Based upon the deficiencies cited in this and the previous two findings, it is found that respondent was negligent in the practice of engineering in that he failed to use due care and to have due regard for acceptable standards of engineering principles. 3/ At hearing, respondent explained the scope of his investigation, gave the bases for the assumptions made in the report and recited the manner in which the conclusions and recommendations were drawn from the facts and assumptions. While these were valid and competent explanations, and had previously been orally given to the City, they were not fully incorporated into the written report. Testimony on behalf of respondent by the project architect established that, from an architect's as opposed to an engineer's perspective, he found the report satisfactory and "in keeping with the standards of other reports" given to him by engineers in the community. However, this testimony has not been accorded the weight given to the testimony of petitioner's consultant. Finally, the testimony of respondent's two engineering experts simply confirmed the fact that no specific written standards exist as to the content of engineering reports, and that in addition to the written report, it is a common practice for an engineer to supplement that report with oral advice to his client. Mitigation In mitigation, it must be noted that respondent's competence as a professional engineer is not in issue. Further, the City was completely satisfied with the report and encountered no problems during the subsequent completion of the building. Indeed, at hearing two city officials expressed satisfaction with respondent's work and the project architect found the report to be satisfactory. Moreover, there were no damages suffered by the client, and the public was not endangered by respondent's misfeasance. Respondent's only fault was in not reducing to writing the additional detail and explanation which he gave to city officials in face to face meetings. Finally, during respondent's twenty-five year career as a professional engineer, he has never been subjected to disciplinary action.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 471.033(1)(g), Florida Statutes (1989) and that he be given a private reprimand. RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1991.
The Issue Whether or not the Respondent failed to complete two construction projects which he entered into, which conduct constitutes an "abandonment" in violation of Chapters 468.112(2)(h), Florida Statutes (Supp. 1978) and 489.129(1)(k), Florida Statutes (1979).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying arguments of counsel, and the entire record compiled herein, the following relevant facts are found. By its two-count Administrative Complaint filed herein on March 3, 1981, Petitioner, State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, seeks to revoke, suspend or take other disciplinary action against Respondent, Hodges J. Jefferson, based upon two of his contract projects in the State of Florida. Respondent is a certified general contractor who is the holder of License No. CJC0004463. Respondent's last known address is H.J. Jefferson Brothers Construction, Inc., 2250 N.W. 194th Terrace, Miami, Florida 33056. On February 18, 1979, Respondent entered into a contract with Clifton Vaughn to construct an addition to Vaughn's residence located at 3791 N.W. 205th Street, Miami, Florida, 33174, for the total contract price of $11,000.00. As finally agreed upon, the parties entered into a contract for a total price of $16,000.00. 2/ The total area of the addition was approximately 1,200 square feet (Petitioner's Exhibit 5). Respondent obtained a building permit for this project on May 2, 1979, and thereafter commenced work some time during the month of May. The work involved in the addition included work to the rear and west side of Vaughn's residence, including the addition of a bathroom, family room, utility room and dining room with the necessary plumbing and electrical modifications in accordance with the plans and specification. (Petitioner's Exhibit 6) Respondent's last day of work on the project at the Vaughn's residence was November 3, 1979. At that juncture, Respondent had installed some plumbing and completed the duct work for the plumbing; had poured the concrete slab for the addition; erected walls and tie beams to join the existing roof with the addition. The Vaughn's existing roof was left exposed for more than 30 days, during which period Hurricane David caused considerable damage to the plaster and insulation in the roof area of the Vaughn's residence. Respondent visited the Vaughn's residence some time after November 3, 1979, requesting an addendum to the contract and sought an additional $652.00. (Petitioner's Exhibit 7). To provide construction funds for this project, Respondent and Mr. Vaughn set up a joint bank account. Vaughn deposited money into the joint account and Respondent was advanced $3,300.00. During the period of March through November 3, 1979, Respondent was paid $9,961.88, or approximately 90 percent of the contract amount. Respondent ceased work at the Vaughn's residence on or about November 3, 1979, and as of the date of the hearing, had not returned to complete the project. (Petitioner's Exhibits 9 and 10). As stated, the parties entered into the two contracts, i.e., in the amount of $11,000.00 and $16,000.00 based on a $5,000.00 allowance for the Vaughn's modifications to fund the work needed to complete the air conditioning modifications in the new addition. On April 12, 1979, Respondent entered into an agreement with Freddie James Jackson to construct an addition to his home at 3752 N.W. 205th Street, Miami, Florida, in the amount of $10,000.00. The job called for a completion time of 60 days from the commencement of construction. Respondent was advanced one-third of the contract amount of $3,300.00 before he commenced work. (Petitioner's Exhibit 2) Respondent commended work on the project on June 1, 1979, and on November 14, 1979, Respondent ceased all work on this project. At that time Respondent had been paid a total sum of $8,751.03 or approximately 88 percent of the contract price. (Respondent's Composite Exhibit 3) When Respondent ceased to perform work on this project, he had poured the foundation, erected the cinder block walls, completed the rough plumbing and electrical work and started erecting the rafters. The plumbing and the electrical work had to be removed and reinstalled by the Jacksons. The owners also had to obtain a new building permit due to the extended hiatus in construction. When the second building permit was obtained, the inspectors estimated that the project was approximately 45 percent complete. (Testimony of Jackson). Mr. Jackson estimated that Respondent's last day on this project was some time during September, 1979. Mr. Jackson made repeated attempts to contact Respondent after May of 1979, at which time Respondent continued to offer excuses for his failure to appear. At the time of this hearing, Mr. Jackson had paid an additional amount of $3,527.22 toward the completion of the room addition to his home and work remains to finish the addition as planned. (Petitioner's Composite Exhibit 4) Respondent did not appear at the hearing herein nor was any evidence presented to the undersigned on his (Respondent's behalf).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's Certified General Contractor's License No. CGC004463, be REVOKED. RECOMMENDED this 8th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1982.
The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
Findings Of Fact Kermit R. Kruger was employed on or about October 5, 1976 by Structural Stud Products at an hourly wage rage of $6.15 per hour. According to his testimony he was engaged primarily in welding on this job. He was involved in installing steel wall stud units made from 12 to 16 gauge steel in the Fine Arts Building of Hillsborough Community College. Although his primary function was as a welder, he did assist in loading and moving these wall units from the point where they were unloaded on the job site to where they were put in place. Structural Stud Products is a company primarily engaged in the fabrication of steel wall units. They had entered a contract with the general contractor to provide such units for installation in the Fine Arts Building. Shortly after interior construction began, the dry wall subcontractor who was installing these units abandoned this project. Structural Stud Products took over this contract and not only supplied the materials but installed these units. Kermit Kruger was hired by the job supervisor and plant manager to assist in the installation of these units. He was hired as and was paid wages as a laborer. According to the Schedule of Prevailing Wage Rates applicable to the construction of the Fine Arts Building at Hillsborough Community College, welders were to receive the prescribed rate for the craft performing the operation to which the welding was incidental. See Schedule of Prevailing Wage Rates. No evidence was received that the installation of steel wall units requires any specific expertise peculiar to any building trade. Testimony was received that such units are installed by carpenters, dry wall installers, and laborers.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the complaint be dismissed. DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1977. COPIES FURNISHED: Harrison C. Thompson, Esquire Post Office Box 3324 Tampa, Florida 33601 Mr. Kermit R. Kruger 160 East Floribraska Avenue Tampa, Florida 33603 Mr. Luther J. Moore Department of Commerce Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
