The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty 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 issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
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 guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
The Issue Whether Respondent's license as a Certified General Contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set for the in the Administrative Complaint dated July 17, 1981. This case arises from an administrative complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Respondent Lawrence M. Stoner, a certified general contractor, for alleged derelictions in connection with the construction and subsequent collapse of a condominium at Cocoa Beach, Florida in March, 1981. Although this case was consolidated for hearing with the case of Department of Professional Regulation, Construction Industry Licensing Board v. Bruce Alles, Case No. 81-2057, the parties announced at the commencement of the hearing that they had elected to hear this case separately. This case was originally noticed for hearing to be held on November 2, 1981. Petitioner filed a motion for continuance of the hearing on October 23, 1981 based on additional information that had been received subsequent to the filing of the Administrative Complaint. However, the matters sets forth in the motion were not considered to constitute good cause for continuance and the motion was denied. The petition alleges that although a firm named Univel, Inc. entered into a contract with another company, Palm Harbor West, Inc. to construct the condominium project in question, Univel hired Respondent to pull the building permit in the name of the corporation for which he was the qualifying agency, Dynamic Construction Company, Inc. It further alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it is stated that the building collapsed in March, 1981 killing eleven persons and injuring twenty- three others, and that violations of the Southern Standard Building Code in the improper placement of steel rebars in columns, and inadequate thicknesses of floor slabs contributed to the collapse. Thus, the petition alleges grounds for disciplinary action against Respondent for acting as a contractor in the name of another, failing to notify Petitioner of his affiliation with another business organization, and failure to supervise the project. It also predicates discipline upon willful or deliberate disregard in violation of the applicable building codes in covering reinforcing steel without an inspection and deviating from approved plans and drawings. In his answer to the complaint, Respondent averred that pursuant to an agreement between his firm and Univel, Inc., his services were provided to Univel to serve as the general contractor for the project and that he did so, exercising proper supervision over construction, and that the building was built according to its engineering plans and drawings and applicable codes. The parties entered into a pre-trial statement of the issues as follows: Was there a duty under Florida Statutes 49.119(3)(b) for LAWRENCE M. STONER to notify the Department of Professional Regulation that he intended to affiliate with Univel, Inc. to do the Harbor Cay job? Did LAWRENCE M STONER act in the capacity of a contractor under any name other than the names set forth in his contractor's certificate? Did LAWRENCE M STONER have a duty to supervise and be responsible for the Harbor Cay project and, if so, did he supervise it and was responsible for that job? Did LAWRENCE M STONER willfully or deliberately disregard Section 108.2 of the Southern Standard Building Code by covering steel in concrete columns on the Harbor Cay job prior to inspection, or did he willfully and deliberately disregard Section 114 of the Southern Standard Building Code by failing to follow plans and specifications calling for an eight inch slab thickness and/or by improperly placing the steel rebar in the concrete columns? At the hearing, Petitioner presented the testimony of fourteen witnesses and submitted fourteen exhibits in evidence. Respondent called three witnesses and submitted five exhibits. Respondent's Exhibit 5 is a late-filed exhibit received by agreement of the parties. A Proposed Recommended Order filed by the Petitioner and Respondent's Summation have been fully considered and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent, Lawrence M. Stoner, is a certified general contractor holding license numbers CG C005313 and CG CA05313, and was so licensed at all time pertinent to this proceeding. He is the qualifying agent for Dynamic Construction Company, Inc., and Atlantic Contracting, Inc., Cocoa Beach, Florida (Testimony of Respondent, pleadings, Petitioner's Exhibit 4) Respondent has been the president of Dynamic Construction Company, Inc. since 1973. He formed Atlantic Contracting, Inc. in 1980, but it has been inactive and has never done business as a general contractor. Respondent is the sole employee of Dynamic Construction Company, Inc. Dynamic occupies one office in the offices of Univel, Inc., a general contracting firm in Cocoa Beach, Florida. Dynamic does not pay rent for the office, does not display company signs, nor does it have a telephone in its name. For the past three or four years, Dynamic has been associated with Univel according to an arrangement between Respondent and Kenneth Alles, Vice President of Univel, whereby Dynamic provided Respondent's services to Univel for the general supervision of construction projects. Under their oral agreement, the owner of a particular project would pay Dynamic a weekly sum through Univel for Respondent's services, and bonuses upon completion of a particular job for good performance. Respondent and Alles considered this arrangement to constitute a joint venture between the two general contracting firms. During the period Respondent was affiliated with Univel, he devoted his full time to its work which consisted of about a dozen projects. After approximately the first year of their association, Respondent began pulling the construction permits for the various jobs in the name of Dynamic Construction Company, Inc. Univel had a certified general contractor, David Boland, as its qualifying agent during that period until some time in late 1979. Additionally, Bruce Alles, a certified general contractor who is the son of Kenneth Alles, became a qualifying agent for Univel in the summer of 1979, but was inactive from about April, 1980 to April, 1981. In fact, from the time he became the qualifying agent, Bruce Alles did not perform any work as general contractor for Univel except one small remodeling job. Respondent has been in the construction business for approximately twenty years. The records of the Construction Industry Licensing Board fail to reflect that Respondent ever applied to be a qualifying agent for Univel, Inc., nor did he ever inform the Board of any intended affiliation with that firm. (Testimony of Respondent, K. Alles, B. Alles, Petitioner's Exhibits 4, 8) On November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., whereby Univel agreed to construct a 118-unit condominium project to be known as Harbour Cay Condominiums at Cocoa Beach, Florida. The work was to be conducted in three phases, the first phase consisting of 45 units, the second 55 units and certain villas, and a third phase consisting of 18 villas. Completion of the work was scheduled for April 30, 1982. The contractual cost of the Phase I portion of the project was set forth in the contract as $2,283,670, including a contractor's fee of 12% of such cost. The contract provided that payment of the contractor's fee was contingent upon provisions for payment of Towne Realty, Inc. under a separate agreement between that firm, Palm Harbor West, Inc., Ken Alles, and Scott Alles. Article 16 of the contract provided that each party shall approve the cost of the other to be charged to the project and in the event one party objected to such cost, the objecting party should be allowed to substitute its subcontractor, personnel or material supplier at a lesser cost, provided it did not delay completion of the project. On February 27, 1981, Dynamic and respondent as "Contractor" entered into an agreement with Palm Harbor West, Inc., Kenneth Alles, individually, and other corporations as "Developers" wherein it was agreed that the "Developers" would hold the "Contractor" harmless from third party claims arising from work performed by the Developers; personnel or agents on various projects, including Harbour Cay. (Petitioner's Exhibit 3, Respondent's Exhibit 5, Testimony of K. Alles) On October 28, 1980, Respondent applied to the City of Cocoa Beach, Florida for a building permit in the name of Dynamic Construction Company, to construct a five-story, 45-unit condominium whose owner was listed as Palm Harbor west. The listed project name was "Harbour Cay" and the architect or engineer was shown to be William Juhn. The building department, City of Cocoa Beach, issued the requested permit number B5263 on December 5, 1980. Permit conditions included the statement "All construction shall conform to the Southern Standard Building Code and other requirements of the City of Cocoa Beach, Florida." (Testimony of Respondent, Straub, Petitioner's Exhibits 7, 11) By Ordinance No. 608, dated October 18, 1979, the City of Cocoa Beach adopted the Standard Building Code as promulgated by the Southern Standard Building Congress International in 1979. Section 1601 of the Standard Building Code provides that all structures of reinforced concrete shall be designed and constructed in accordance with he provisions of Building Code Requirements for Reinforced Concrete, ACI 318 issued by the American Concrete Institute. Although Section 114 of the Standard Building Code purports to make it a misdemeanor for any person to violate the code or construct a building in violation of a detailed statement or drawing submitted and approved under the code, the Cocoa Beach Building Code, Article 1, Section 6-3 provides for penalties under a separate city ordinance for violating provisions of the standard building code or of the city building code. (Testimony of Straub, Petitioner's Exhibits 5B-C, 6, 14) Section 106.5 of the Standard Building Code provides that whenever the work to be covered by a permit involves construction under conditions which, in the opinion of the building official, are hazardous or complex, the building official shall require that the architect or engineer who signed the affidavit, or made the drawings or computations, shall supervise such work and be responsible for its conformity with the approved drawings. Pursuant to this provision, the building official of Cocoa Beach determined that the Harbour Cay project was complex and that he did not have sufficient personnel to provide inspection services. Accordingly, he made arrangements with Respondent and the owner's representative at the site, Jack Bennett, to have the project's structural design engineer, Harold Meeler, perform such services and provide daily inspection reports to the City. Meeler assumed such functions under an oral agreement with Univel, Inc. He had either inspected or assisted city inspectors to inspect all Univel projects since 1977. (Testimony of Straub, Meeler, Respondent's Exhibit 4) Two field superintendents supervised the on-site work at the Harbour Cay project One of these, Fred W. Rustman, was employed by Univel, Inc. and had fifty years experience. The other field superintendent was Patrick T. Alles, brother of Kenneth Alles, who was employed as a site superintendent by Towne Realty, Inc. a firm which owned Palm Harbor West, Inc. His immediate supervisor was Jack Bennett, also employed by Towne Realty, Inc., who served as the "owner's representative." Alles' function was to supervise the concrete and form work, and Rustman coordinated the balance of the job and approved vendor's bills. Rustman looked upon Bennett and Kenneth Alles as his immediate supervisors. Bennett primarily did office work such as pricing, insurance matters, time schedules, and the like. He described himself as the "anchor man" of the project who could always contact the other supervisory personnel because he stayed in place. Bennett conferred with Respondent on a daily basis and was of the view that Respondent had ultimate responsibility for the project because he was the general contractor. Kenneth Alles felt that he had ultimate responsibility for construction decisions for Univel, Inc. on the project, but looked to Respondent as having ultimate overall construction responsibility. (Testimony of Rustman, Bennett, K. Alles, Henderson, Petitioner's Exhibit 12, Respondent's Exhibit 1) Respondent's functions with respect to the Harbour Cay project were varied. Although he relied upon the field superintendents for immediate supervision of construction, he conferred with them periodically for resolution of problems. Ordinarily, general contractors do not perform immediate supervisory functions at the construction site. Respondent reviewed subcontractor bids and recommended awards to be made by Univel, Inc. Univel, Inc. supplied construction personnel for the project. Respondent arranged for rental of equipment, and coordinated with the project engineers, architect, and city officials. He approved payments to subcontractors, and ensured the payment of other bills submitted by suppliers which had been approved by the field superintendents. Problems that arose were usually resolved by joint decisions of Bennett, Kenneth Alles, and Respondent. Respondent's office was approximately 1,000 yards from the job site and he made it a practice to visit the site at least three times a week. (Testimony of Respondent, K. Alles, Bennett, Rustman, Lilley) Harold Meeler conducted frequent inspections of the project and rendered periodic reports reflecting such progress, commencing with garage construction in October, 1980. He was not aware of the identity of the general contractor and generally dealt with Bennett and the field superintendents. His general practice was to inspect in the late afternoon and dictate his reports in a tape recorder on site. The reports were later transcribed and submitted to Bennett. The city building officials expected these reports to be rendered on a weekly basis to him, but they were frequently slow in reaching his office. None of the reports included any indication of construction deficiencies, but merely related when the various construction stages had been completed. Testimony of Meeler, Bennett, Rustman, Straub, Respondent's Exhibit 3) The construction schedule followed at the Harbour Cay site was to prepare reinforcing steel bars for the columns on Mondays and Wednesdays by securing them with steel stirrups on the ground. They were then placed in position within the forms for the columns. Although the specifications and drawings did not show how to place the bars, the number per column ranged from 4 to 8 bars as called for in the design specifications. It was noted by the reinforcing steel subcontractor that the columns were too narrow to adequately space 4 bars per column. However, the only way in which they could be and were placed was to align 4 bars down each side of the column. Generally, the design drawings for a construction project show detail as to spacing. It was noted that some of the bars at the Harbour Cay site were overbent. Meeler inspected the bars on the ground and after the concrete columns had been poured, but noted no deficiencies in his reports. However, he did give instructions on many occasions on placement and addition of bars. He was able to check the position of the bars in the concrete columns by reason of the fact that they extended out of the column into the next floor. The concrete floor slabs were poured two days a week after the steel had been set and the columns poured. Section 108.2(e) of the Standard Building Code provides that reinforcing steel of any part of a building shall not be covered or concealed without first obtaining the approval of the building official, the designing architect, or engineer. (Testimony of Rogers, Meeler, Bennett, P. Alles, Petitioner's Exhibits 1-2, 5a) Patrick Alles, one of the field superintendents, did not start on the job until March 9, 1981, at which time the building had been completed through the third floor. On that day he observed hairline cracks in the slabs at the top and bottom of the columns. He was concerned and notified Meeler and Bennett of the existing condition. Meeler discussed the matter with A.M. Allen, a structural engineer who had actually done the design drawings, who joined him in an inspection. Allen told Meeler that there appeared to be no structural damage, but Alles thereafter added an extra line of 4 x 4 limber supports between the floors to reshore the building. Respondent was made aware of the problem but did not actually participate in the inspection and subsequent remedial work. (Testimony of Meeler, P. Alles, Respondent) On March 26, 1981, a surveyor for A. M. Allen who had worked on the Harbour Cay building "layout", was on-site and observed that several of the building columns between the fifth floor and the roof line appeared to be deflected, and that one of the columns had a sag. He called this to the attention of Patrick Alles and they estimated the amount of deflection. Alles was of the opinion that one corner column was about 3/4" out of vertical on the north corner, and the surveyor estimated a 1 1/4" deflection. No action was taken with regard to the condition of the columns (testimony of P. Alles, Adams) Meeler's last report, dated March 28, 1981, noted that on March 27th the roof slab was being poured. Subsequently the building collapsed and, shortly thereafter, Petitioner employed a registered professional engineer to conduct an investigation into the cause of the collapse. The engineer, Oscar Olsen, was accepted as an expert in structural engineering. He commenced his investigation several days after the collapse, at which time most of the debris had been removed from the job site. He inspected the broken slabs, columns, positions of rebar, thickness of slabs, and the steel stubbed out of the floor from the foundation and column locations which were still intact to determine the placement of steel, and number and size of bars. Comparing these with the specifications, he made an analysis of the design. He concluded that the primary cause of the building's collapse was a punching shear failure of the slab around the columns due to insufficient thickness of the slab, in combination with rather small columns. He attributed this deficiency to design failure. Although the design called for 8" thick slabs he found that in most cases the slabs were under the required eight inches varying from approximately 7 1/2 to 7 5/8". "Shear" is a tendency for the slab to separate from the column and just slide down it. Although the slabs did not all meet the thickness requirements of the specifications, this fact would have had only a small influence on the building failure. The actual shear stress exceeded allowable tolerances by two to three times and therefore the slabs should have been designed to be about ten inches thick. Steel bars in the columns coming out of the first floor level in several cases were considerably out of position in that they were too closely grouped, and in some cases, they were located completely over to one side of the column and in contact with the form. Such improper spacing violated Section 7.6.3 of the American Concrete Institute Building Code Requirements for reinforced concrete (ACI 318-77) in that the clear distance between longitudinal bars was not at least one and a half times the diameter of the bar, or one and a half times the diameter of the bar, or one and a half inches. The spacing also violated Section 7.6.4 of the Code which requires that the clear distance limitation between bars applies also to the clear distance between a contact lab splice and adjacent splices or bars. This violation is based on bars projecting out of the slabs that lapped bars in the column cage that came down from above, and did not maintain the same clear distance between adjacent groups or bars. The ACI Code, in Section 1.1.1, states that the Code provides minimum requirements for design and construction of reinforced concrete structural elements of any structure erected under requirements of the general building code, of which ACI Code forms a part. The improper placement of the reinforcing bars in the columns was not the initial cause of the building collapse, but could have aggravated the situation to some degree. Three of the columns were designed in such a manner that it would have been impossible for a contractor to meet the required ACI specifications, but the rest of them could have been done properly, although it would have been difficult to do so. Although the spacing problems can arise from the size of the reinforcing bars as designed by the engineer, it is normally the contractor's ultimate responsibility to ensure that the steel is properly placed and, if a problem in placement arises, he should call the matter to the attention of the engineer. The fact that the Harbour Cay building had some variation in the plumb line on the fifth floor was not a contributing cause to the building's failure. (Testimony of Olsen, Hunter, Petitioner's Exhibits 10, 13-14) The holes left by some 30 random concrete cores taken from slabs at the Harbour Cay site were measured by Warren Deatrick, Chief Engineer and Vice President of Universal Engineering and Testing Company, who is also the President of Orlando Concrete Contractors, Inc. The measurements showed that only three of the 30 cores were less than eight inches in thickness, being 7.5", 7.8", and 7.9" respectively. He noted that a number of other cores had been taken by others in the balcony areas which were designed to be approximately 1/2" less thick than the main floor slabs. Some of the main floor core holes measured more than eight inches in thickness, up to 8.4". Of the three situations involving less than eight inches in width, only the 7.5" core holes represented an excessive tolerance within reasonable construction practices, and it could have been caused by an inadvertent deflection or depression at the particular point. Due to the manner in which concrete settles in the forms and is troweled, there are always areas that tend to produce an uneven surface. Concrete contractors uniformly point out problems in steel placement to the design engineers and follow his instructions as to whether or not to change its position because he is the person who knows what is necessary according to the design, and is familiar with the basic allowable tolerances. (Testimony of Deatrick) On October 13, 1980, prior to the issuances of the building permit for the Harbour Cay project, the city engineer of Cocoa Beach reviewed the structural calculations for the project and found that they were in accordance with Chapter XII of the Southern Building Code Congress. (Respondent's Exhibit 2)
Recommendation That the Construction Industry Licensing Board suspend the certified general contractor's licenses of Respondent Lawrence for a period of six months pursuant to Section 489.129(1)(j), Florida Statutes, for violation of Section 489.119(2)(b), Florida Statutes. DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. Post Office Box 1386 Tallahassee, Florida 32302 Elmo R. Hoffman, Esquire 215 East Central Boulevard Orlando, Florida 32801 Mr. James K. Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32301
The Issue The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.
Findings Of Fact At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.
Findings Of Fact Arthur A. Noriega, Respondent, was issued a residential contractor's license, No. RR0026713, which reflects his address as c/o Noriega Construction, Inc., 5600 South Winter Beach Road, Box 111, Winter Beach, Florida 32971. Respondent's license required renewal, but as of June 30, 1981, he had failed to renew his registration with the Petitioner. Respondent was also required by law to notify Petitioner of any change of address from that listed on his license. He failed to do so. Arthur A. Noriega was issued a certificate as a Class III Contractor by the City of Vero Beach, Florida, by Certificate of Registration No. 270, on January 9, 1976, based on his passing the H. H. Block Examination, as certified by the Director of Building and Construction of Brevard County, Florida, per Certificate No. 2096, issued on December 5, 1975. A Class III Contractor is authorized by law to construct one and two- family residential buildings, and is not authorized to perform commercial construction. On August 21, 1981, Respondent entered into an agreement in writing with the Vero Mall to install two Class B fire doors with jambs, thresholds, and panic handles at the mall facility at 1255 U.S. Highway 1, Vero Beach, Florida, for a total sum of $1,160, to be paid in two segments: one half down at signing of the agreement, and the remaining half upon completion of the project. This work is classified as commercial, and is not within the scope of Respondent's license. The work was completed in December, 1981, except for the closers (panic bars); however, the Respondent was paid in full by check by Jim Wilson & Associates, owners of the Vero Mall. Indian River County Ordinance No. 80-17, effective on April 28, 1980, et seq., requires, at Section I, Paragraph 3, by amending Section 105.1(e) of Indian River County Ordinance No. 74-11, that all construction except ordinary, minor, nonstructural repairs not exceeding in cost of $100 be commenced only upon the approval of the building official and with a permit. The permit from Indian River County, upon the application of the Respondent, to cover the work called for as the Vero Mall, which had been at least partially accomplished in December, 1981, was not issued until February 26, 1982, approximately two months after the work was accomplished. The permit was applied for and granted by mistake after a citation had been issued to the Respondent for working without a permit because county officials failed to check what the status of the Respondent was at the time of the application. Had they checked, the permit would not have been issued because Respondent was not certified for commercial construction. When the permit was issued, however, a double fee was charged because of the fact that it was applied for after work was begun. On October 25, 1982, an Administrative Complaint was filed in this case by the Secretary, Department of Professional Regulation, on behalf of the Construction Industry Licensing Board, containing allegations consistent with the above Findings of Fact. This complaint was served on the Respondent by hand delivery by Mr. Thomas G. McAndrews, an investigator for the Department of Professional Regulation, at 956 13th Avenue, Vero Beach, Florida. This address, at which the Respondent was doing business, is different from that listed on his application for a Certificate of Registration and from that last appearing on the records of the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's contractor's license be suspended for a period of six months. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983. COPIES FURNISHED: Jane Heerema, Esquire Roberts, Egan &. Routa, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. Arthur A. Noriega Post Office Box 2303 Vero Beach, Florida 32960 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 24th day of November, 2009.
