Findings Of Fact The Respondent Frank H. Suesz is a licensed general contractor having been issued certificate number CG C020463. On July 21, 1981, the Respondent Suesz submitted an application to the Petitioner Department of Professional Regulation to take the certified contractors' examination as a general contractor. On the application, the Respondent Suesz stated that he had four (4) years of construction experience, one (1) year of on-the-job-supervisory experience, and some experience in the construction of buildings in excess of three(3) stories in height. The Respondent's work experience' was verified by Ethel C. Douglas, his mother-in-law and a building owner. Douglas' verification on the Respondent's application was notarized. The experience claimed by the Respondent on his application involved his prior position with Steel Systems Construction Company, a seller and erector of pre-engineered metal buildings. Steel Systems is owned by Richard Spinnenweber, who is also the Respondent's cousin and the complainant in this case. Steel Systems holds the franchise for American Steel Buildings while the Respondent's company, ABCO Construction, Inc., has acquired the franchise for Pre-Engineered Steel Buildings. Since the Respondent's resignation from Steel Systems, his relationship with his cousin has been anything but cordial. The Respondent and Spinnenweber have engaged in litigation concerning the termination of their former relationship and are now active business competitors through their respective companies. 1/ The Respondent's company sells and erects pre-engineered, prefabricated steel buildings that are built in a factory, shipped to the job site and erected. One witness for the Petitioner analogized the construction of these buildings to "erector sets". (See Tr. at 43) Since being certified in 1981, the Respondent's company, ABCO Construction, Inc. has successfully completed approximately 40 construction projects including a 45,000 foot roof for Pan Am at Miami International Airport, a 10,000 square foot marina warehouse in Key Largo, and has worked for the U.S. Customs Service and the Air Force. No evidence was presented that any of the Respondent's jobs completed since he became certified, were substandard or present a threat to the public health, safety and welfare. Permits were pulled on these projects and building inspections were passed when required. Prior to moving to Florida, the Respondent Suesz had varied construction experience which including supervising the construction of building additions, a shipping storage warehouse and a factory for Beckley Perforating Company, which is headquartered in Garwood, New Jersey. This testimony is corroborated by a letter dated May 13, 1982, from Frank P. Marano, President of Beckley, which also noted the Respondent's ". . .unusual competency in all areas of responsibility as to construction, maintenance and expansion." [See Petitioner's Exhibit 3(x).] Additionally, the Respondent has some construction experience in excess of three stories, which dates from his work with his father on apartment buildings located out of state. The extent of the Respondent's experience which dates from the 1940s, is set forth in detail in Respondent's Exhibit 2. Although his position at Steel Systems was primarily sales, the Respondent Suesz also worked in the field when necessary. 2/ While employed by Steel Systems, the Respondent supervised construction of two large dock roofs in 1978 and 1979, plus three buildings in 1980 and 1981 for the Homestead Tomato Packing Company, Inc. By letter dated May 13, 1982, Rosario Strano, company owner, commended the Respondent for his work and stated that he intended ". . .to negotiate with him for all future requirements for buildings, dock roofs, etc." [Petitioner's Exhibit 3(y).] In early 1989, the Respondent Suesz built an addition to the Hialeah factory of Brice-Southern, Inc. His supervision of the project included pouring and finishing the floor slab. Philip H. Brice recommended the Respondent's work via letter dated May 13, 1982, and stated ". . .that he would give him the opportunity to do our future requirements." Petitioner's Exhibit 3(z).] According to Gerald Antel, Trustee, Sunshine Skateway, the Respondent supervised the construction of a $250,000 roller rink. [Petitioner's Exhibit 3(aa).] Finally, in late 1980 and 1981, the Respondent supervised construction of a 16,800 square foot building for Woal Wholesale Plumbing Supply, Inc. His work on this project was observed and recommended by Randy S. Woal. [Petitioner's Exhibit 3(bb).]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Frank H. Suesz, be dismissed. DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
The Issue Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor. Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.
Findings Of Fact The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c). Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.
Recommendation Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved. DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986 COPIES FURNISHED: James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maxwell G. Battle, Esquire 8204-A West Waters Avenue Suite 350 Tampa, Florida 33615 Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD MARGARET K. ROBERTS, License No. CB-C031970 Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL REGULATION Respondent. /
The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact Respondent was licensed as a certified general contractor in the State of Florida at all material times. He held license number CG-C028693. As of May 20, 1988, this license was delinquent for nonrenewal and had been since June, 1987. At all material times while licensed as a certified general contractor, Respondent served as the qualifying agent for Quigley Homes, Inc., which is located in Palm Bay, Florida. In March, 1985, Ronald and Rita McCarty contacted Respondent after seeing a model house that he had constructed in the area. After negotiations, in May, 1985, Respondent, on behalf of Quigley Homes, Inc., entered into a contract with Mr. McCarty for the construction of a house at a price of $89,900. The contract included several pages of specifications and stated that completion was due within four months of commencement. The parties agreed to a set of blueprints shortly after the contract was executed and thereby satisfied the only contingency to the contract. Shortly thereafter, Respondent began preliminary work, such as ordering windows, site clearing and preparation, and obtaining necessary permits. In October, 1985, Mr. McCarty lost his job and his mortgage application was rejected. Respondent therefore ceased working on the house. At the time, the McCartys had paid Respondent the sum of $4495, which had been spent on start-up expenses. In July, 1986, Respondent resumed construction, under the same contract, shortly after being told that Mr. McCarty had applied for another mortgage after obtaining a new job in January, 1986. In August, 1986, a subcontractor poured the concrete slab for the house. The day prior to the pour, Mr. McCarty discovered that certain plumbing, which had to be in place before the pour, was missing. Unable to reach Respondent, Mr. McCarty himself informed the plumber of the omission. The plumber installed the necessary plumbing before the pour. A day or two prior to the pour, Carrol Smoot, Building Inspector for the Town of Indialantic, had inspected the form and reminded the subcontractor in charge of the pour that J- bolts needed to be added before the pour. J-bolts are anchoring devices around which the concrete is poured. Once the concrete is set, the wall plates are placed under the hook of the J- bolt in order to secure the house to the slab. Notwithstanding Mr. Smoot's reminder, the pour proceeded without the J- bolts in place. The pour had several other problems. A portion of the concrete garage floor was not square because the form had been off by about 4" at the time of the pour. The rear porch floor sloped too steeply toward the house. The slope of the front porch was also too steep. There were various "bird baths" or depressions in the slab. On August 27, 1986, Respondent and the McCartys met with Mr. Smoot at the work site. Following the meeting, Mr. Smoot sent a letter to Respondent dated August 29, 1986, in which Mr. Smoot required Respondent to take certain corrective action. The letter required two probe tests of the concrete in place, the installation of stud wall anchor bolts, the correction of the out-of- square corner, the topping of low spots in the slab with Ardex, and the repair or replacement of the incorrectly sloped rear porch. In September, 1986, two portions of the slab passed by considerable margins separate probe tests designed to test the strength of the concrete. Shortly after the August 27 meeting, Respondent suggested to Mr. Smoot that Hilti nails, rather than anchor bolts, be used to secure the wall plates to the slab. Hilti nails are an acceptable, but less desirable, alternative to J- bolts. However, after the slab is poured, it is much easier to install Hilti nails than J-bolts. Both Mr. Smoot and the McCartys agreed to Respondent's proposal. At the same time, the excess slab at the unsquare corner was cut off and, pursuant to Mr. Smoot's orders, additional concrete was poured and attached to the original slab by means of stainless steel bolts. Respondent offered to apply Ardex to the rear porch in order to level it and improve the concrete's rough finish, which had been caused by rain during the pour. Ardex is a topping material applied to concrete in order to level the surface. Respondent also offered to apply a coat of Kool Deck, such as that found around swimming pools, over the Ardex. The McCartys rejected the Kool Deck, but agreed to the Ardex. When terminated, as discussed below, Respondent had not applied the Ardex; however, he was postponing the work so that the finish would not be marred by later construction work. Respondent removed and replaced the front porch slab. He ground the remaining slab in order to alleviate the unevenness. It is unclear whether Respondent also applied Ardex to other portions of the slab in order to eliminate the depressions. Depressions in slabs are not uncommon and grinding and topping materials are often used to level uneven slabs. Following most if not all of the concrete corrective work, a subcontractor began the framing job. At about this time, shortly after the slab grinding was completed, C. C. Holbrook replaced Respondent as supervisor of the job for Quigley Homes, Inc. Mr. Holbrook was a certified general contractor with 30 years' experience. At the time, Respondent had built only 8- 10 houses and was considerably less experienced than Mr. Holbrook. When Mr. Smoot was called to inspect the framing, he found that the Hilti nails had been driven through the wall plate improperly. Instead of having been staggered on either side of the centerline of the wood plate, each nail had been driven into the center so as to split the plate in places. This problem was later corrected by driving more Hilti nails on either side of the centerline. Similar nailing problems occurred with the roof sheathing and fiberboard. Mr. Smoot required renailing of these items and, when this was done, approved the work. When the framing was about half complete, Mr. McCarty threw the framing subcontractor off the job due to Mr. McCarty's dissatisfaction with the quality of workmanship. In specific, he objected to the fact that one or more walls appeared out of plumb. At about the same time, which was late November or early December, 1986, the McCartys announced that they would no longer accept Hilti nails, even though they had already been installed. On December 22, 1986, Mr. Holbrook, on behalf of Quigley Homes, Inc. wrote a letter to the McCartys in which he stated that the company could not proceed with the construction without written approval from the McCartys of the Hilti nails. Quigley Homes, Inc. discontinued working on the job at about that time. In mid-January, 1987, Respondent's father, who is a certified general contractor with nearly 40 years' experience, met with the McCartys to try to resolve the differences between the parties. Respondent's father, David J. Quigley, Sr., has built over 20,000 residential units. Although unaffiliated with Quigley Homes, Inc., Mr. Quigley, Sr. had lent Mr. Holbrook to his son's company during a relatively inactive period before Mr. Holbrook was needed for a large residential development in which Mr. Quigley, Sr. was involved. At the meeting, Mr. Quigley, Sr. stated that all problems would be resolved. Mr. McCarty was unappeased, which led Mr. Quigley, Sr. to ask if Mr. McCarty preferred to have someone else finish the house. Mr. McCarty responded affirmatively. Mr. Quigley, Sr. stated that Mr. McCarty should inform Mr. Holbrook in writing of the existing problems so that Quigley Homes, Inc. could take care of them. Shortly after the meeting, Mr. McCarty called Mr. Holbrook to arrange a meeting to discuss the problems. Mr. Holbrook said that Mr. McCarty should mail him a written list instead. The McCartys never sent such a writing to Mr. Holbrook or Quigley Homes, Inc. A final exchange of correspondence took place between the McCartys' attorneys, whose letter was dated January 28, 1987., and Quigley Homes, Inc., whose letter was dated February 5, 1987. In its letter, Quigley Homes, Inc. restated its willingness to finish the job or leave the job and repair the items mentioned in the letter. At the time of the termination of Quigley Homes, Inc. from the McCarty job, Mr. Smoot had approved all stages of construction requiring inspection up to that time. However, numerous deficiencies in workmanship existed for which Respondent was responsible. Nearly all of these items were of a type that would have been corrected as construction proceeded on the house. These items included the uneven rear porch floor to which Respondent had offered to apply Ardex and Kool Deck, numerous window frames at different heights, two out-of- plumb walls, one or two incorrectly sized door openings, and a wavy roof ridge line caused largely by a few trusses that had been unevenly spaced. The repairs necessary to fix these items were minor. The wavy roof ridge line is not unusual, and the out-of-plumb walls had not yet been permanently attached. Additional work was required to correct Respondent's deviation from the plans in using screening rather than aluminum soffits. Also, the tilt of one exterior wall prevented the application of one row of bricks near ground level, although the absence of these bricks is not readily apparent. Two deficiencies were more significant. First, the garage floor was removed and replaced. The floor had suffered cracking and shrinkage. Although this portion of the slab had not been tested for strength, two other portions of the monolithic pour had passed strength tests. Petitioner failed to prove that the garage floor was structurally unsound or even seriously uneven. Appearance was the primary reason for the removal of the floor. Second, the contractor who completed the job had to convert the master bedroom ceiling from a cathedral ceiling to a conventional ceiling due to problems with the truss design. However, the first truss company to which Respondent took the McCartys' plans refused to do the work, claiming that the design was impossible. The problem as to the ceiling was due to an error in planning for which Respondent was not responsible. None of the deficiencies described above, except for the omission of the J-bolts, affected the structural integrity of the house. Once the Hilti nails were properly installed, no structural deficiencies remained. Petitioner's independent expert witness and the second contractor whom Petitioner called, declined to testify that the work was grossly negligent. There is no evidence that the McCartys demanded correction of any of the defects described in Paragraphs 25-28. There is evidence that Quigley Homes, Inc. was ready, willing, and able to correct such problems. Under the circumstances, the overall work, given the nature of the deficiencies, was not grossly negligent or incompetent. Like the work itself, the supervision was sloppy at times but was not grossly negligent or incompetent. According to Mr. Smoot's testimony, Respondent's absence during the inspections and portions of the pour is typical among residential general contractors.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 14th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988. APPENDIX Treatment Accorded Petitioner's Proposed Findings of Fact 1-5. Adopted. 6. Adopted except that construction recommenced in July, 1986, and Mr. McCarty discovered that the plumbing was not in place on the day prior to the pour. 7 and 9. Adopted. 8. Rejected as recitation of testimony. Respondent's use of Hilti nails adopted. Remainder rejected as against the greater weight of the evidence and subordinate. Adopted in substance. Rejected as recitation of testimony except that the opening for a door in the garage was cut too small. Rejected as recitation of testimony except that certain trusses were not evenly spaced. Rejected as against the greater weight of the evidence. The majority of the repairs and replacement done by Joyal were unnecessary. Those repairs that were necessary would have been done at no expense to the McCartys by Quigley Homes, Inc. Rejected as against the greater weight of the evidence. Rejected as irrelevant. Respondent's personal involvement was not needed or required when Mr. Holbrook began to supervise the project. Treatment Accorded Respondent's Proposed Findings of Fact 1-2. Adopted. 3. Rejected as irrelevant. 4 and 6. Adopted in substance. 5. Adopted. Rejected as against the greater weight of the evidence and unsupported by the evidence, except that it rained during the pour, the slab had bird baths, the J-bolts were not installed, a meeting took place among the McCartys, Respondent, and Mr. Smoot, Respondent subsequently suggested the use of Hilti nails, and the parties agreed upon the use of Hilti nails and other corrective measures. Rejected as subordinate and recitation of testimony, except that the Hilti nails were, after a reinspection approved by Mr. Smoot. Rejected as subordinate. Findings concerning the source of delays are rejected as unsupported by the evidence. Neither Petitioner or Respondent produced sufficient proof to explain the source of delays apart from the substantial delay caused by the McCartys' inability to perform under the contract. Because the burden of proof on this issue is upon Petitioner, the insufficiency of the evidence means that Respondent cannot be found guilty of untimely performance. The employment of Mr. Holbrook and his 30 years' experience are adopted. Adopted. 12-14. Rejected as subordinate. 15. Adopted. 16-17 and 21. Rejected as irrelevant. See Paragraph 10 above. Adopted. Adopted in substance. Rejected as legal conclusion. Adopted in substance. Rejected as recitation of testimony. COPIES FURNISHED: Belinda Miller, Esquire Bruce D. Lamb Department of Professional General Counsel Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32399-0750 130 North Monroe Street Tallahassee, Florida 32399-0700 Elting L. Storms, Esquire Storms, Krasny, Normile & Dettmer Fred Seely 780 South Apollo Boulevard Executive Director Post Office Box 1376 Construction Industry Melbourne, Florida 32902-1376 Licensing Post Office Box 2 Jacksonville, Florida 32201
The Issue It is necessary to resolve the following issues in this proceeding: Whether Mr. Taft violated Section 471.025(3), F.S. and thereby violated Section 471.033(1)(a), F.S., by signing and sealing plans depicting work that he was not licensed nor qualified to perform; Whether he violated Section 471.033(1)(j), F.S., by signing and sealing plans that had not been prepared by him or under his supervision, direction or control; and Whether he violated Section 471.033(1)(g), F.S., by misconduct in the practice of engineering for the same acts alleged in a) and b), above.
Findings Of Fact Barrett L. Taft, P. E. has been licensed in the State of Florida as a professional engineer since 1968, holding license number PE 0013208. Mr. Taft graduated from the Massachusetts Institute of Technology in 1940 with a degree in metallurgical engineering. For the first 27 years he practiced mostly metallurgical engineering, with some, but admittedly very little building experience. After moving to Florida he took the engineers' exam in metallurgical engineering and was licensed. Since being licensed in Florida, he has worked as a sole practitioner in the Maitland-Central Florida area. His primary business activity since 1968 has been the operation of a metal die casting business with a die casting machine that he invented and patented. The contractor who built Taft's plant in Casselberry, a pre-engineered metal building, asked Taft to help him work on foundations for metal buildings. In this way Taft started doing building projects, primarily metal buildings. Harvey Spears was one of the contractors Taft worked with. Spears is a licensed contractor who owns Spears General Contractors, Inc. in Eustis, Florida. J. C. Woliver is an employee of Spears, Inc. He is a draftsman and prepares estimates for the company. Neither he, nor Harvey Spears, nor the company are licensed in architecture or engineering. Sometime in 1985 and 1986, J. C. Woliver prepared drawings for two buildings to be constructed in Eustis by Spears. One was a 2,567 square foot insurance company building, the Talmadge Building; the other was a small strip shopping plaza, Bay Street Plaza. After the drawings were completed and approved by the owners, Harvey Spears took them to Taft's office for his review. Taft reviewed and sealed the drawings. Building permits were obtained; both projects were constructed and they are now occupied by the owners' businesses. Barrett Taft never met with the owners prior to sealing the drawings, nor did he ever meet or talk with J. C. Woliver during preparation of the drawings. Neither Woliver nor Spears were employed by Barrett Taft and he had no supervisory relationship with these individuals. Taft did not do engineering calculations for these two projects, as in his view they were very simple. He reviewed the drawings prepared by Woliver and checked them against the standard building code. No changes were made prior to Taft's application of his seal and return of the drawings to Spears. The plans for the Bay Street Plaza were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on August 5, 1985. The Talmadge Building plans were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on May 6, 1986. The drawings sealed by Taft for both projects are very sketchy and lack essential detail. No engineering calculations are included, and it is impossible to review the drawings to determine compliance with fire and life- safety codes. Because these buildings are used and inhabited by the public, they should have been designed by an architect. Architects, not engineers, are trained and tested in the requirements of the various building codes, including the fire and life-safety codes. Barrett Taft is not a licensed architect. Taft argues that he was providing a service to the public and the customers are satisfied. His arrangement with Harvey Spears with regard to sealing Woliver's drawings was that he would not handle anything complicated and the contractor would follow the building code. He felt that the buildings were little more than house-like structures which would not require an engineer's calculations or a seal. Barrett Taft was disciplined previously by the Board of Professional Engineers. In an Order dated May 25, 1984, and amended July 31, 1984, the Board imposed a fine of $1,000.00 and one year probation. The order was entered after an informal hearing requested by Mr. Taft. The Board found in that case (DPR #0034220) that Mr. Taft was guilty of negligence; that he lacked training, experience and education to perform the services provided; and that he affixed his seal and signature to drawings that were not prepared by him or under his responsible supervision or direction.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered finding Barrett L. Taft, P.E., guilty of violations of subsections 471.025(3), 471.033(1)(a), (g) and (j), and imposing the following discipline. Reprimand. (b) $1,000.00 fine. One year suspension. Two years probation, following suspension, under conditions to be determined by the Board, relating to limiting Mr. Taft's practice to a field in which he is qualified to work and limiting the use of his seal to his own work. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of February, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Barrett L. Taft 2940 Cove Trail Maitland, Florida 32571 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059. New Veep At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work. As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time. Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job. Remodeling On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1. Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work. Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract. Dry Clothes Wet Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder. The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof. Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby. In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound. When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned. Inspection and Supervision In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project. At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence. In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished. After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and if so what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was a licensed standard building inspector, license number BN 0001750. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to the residence. She retained a contractor to perform the work and returned to her second home in Ohio during the time of the construction. When Ms. Edwards returned to Florida in December of 1996, she was dissatisfied with the quality of the construction work performed on her home. Mr. Joyce, Ms. Edwards' friend, stated that they had expressed a desire for, and had requested, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by an unlicensed building inspector, James L. Brown. This led the homeowner to suspect that the work performed did not meet inspection code standards. Building code inspections are to verify that the work performed by contractors meets certain minimum standards set forth in adopted building code regulations. By implication the highest quality of construction performance would generally exceed code requirements. One inspection item in particular concerned Ms. Edwards' friend, Mr. Joyce. This homeowner believed the new addition did not have a proper footer. All of the inspections listed on the permit card for this project occurred prior to December 17, 1996. The footer/slab inspection was performed on October 4, 1996. The Respondent asserts that at the time he performed the footer/slab inspection, the structures were in place to assure that the poured foundation would meet minimum code requirements. The Respondent does not dispute that Mr. Brown, an unlicensed inspector in training, initialed the permit card and transmitted by radio the inspection results. Mr. Brown was assigned to work with the Respondent during his training period prior to receiving licensure from the state. Mr. Brown ultimately received his provisional license on or about December 17, 1996. The Respondent asserts that a final inspection was not performed on Ms. Edwards' home. Consequently, no final verification was completed to assure the home addition was constructed in accordance with the plans and the forms on the ground for the footer/slab foundation. In this case there is no allegation that the construction plans for the addition for the Edwards' home failed to meet minimum code requirements. Presumably the footer/slab foundation as reflected on the plans would have specified at least a minimum compliance with code mandates. The footer/slab inspection was performed with the forms and reinforcements in place according to the approved plans. The Respondent maintains that the forms and reinforcements met minimum code requirements and that if such forms were altered after inspection he would not have known. Typically, once the footer/slab foundation forms and reinforcements are approved by an inspector the contractor calls for the delivery of concrete to be poured into the foundation forms. The date the concrete was poured for the subject footer/slab is unknown. Whether there was a delay between the footer/slab inspection date and the construction date is unknown. In any event when Ms. Edwards and Mr. Joyce returned from Ohio to view the addition the foundation did not appear adequate. Efforts were then pursued to attempt to ascertain whether the footer/slab did meet code. In this case the record is inconclusive as to whether the footer/slab foundation as constructed at Ms. Edwards' addition meets minimum code requirements. The pictures in evidence do not clearly establish the depth of the slab. Some of the photographs suggest that the minimum depth was achieved. A visual inspection performed at the site did not verify the depth nor compare the interior finished grade with the exterior measurements. The final grading of the exterior of the home around the addition was never completed. As a result the photographs may have a distorted view of the foundation and portions should have been back-filled along the edge of the slab. In any event, no definitive measurements have been offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Bobby T. Chambers 3520 Northeast Linda Drive Jensen Beach, Florida 34957 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Petitioner's application to qualify an additional business entity should be granted.
Findings Of Fact Petitioner Joe Neubauer started working in construction in 1962. He was employed by his father, who was a general contractor, and learned both the residential and the commercial construction business from him. In the early 1970s Petitioner began working on his own doing re-modeling work. He worked for owner/builders and did not need a contractor's license. In 1983 he achieved licensure in Florida as a state- certified general contractor. From 1983 to 2004, he worked under the business name of Joe Neubauer General Contractor. During that time period (and prior to his licensure) he bid on jobs, applied for permits, supervised sub-contractors, dealt with inspectors and inspections and physically performed work himself from the beginning to the end of the project. In 2004 he suffered a back injury while driving a race car. Since he was unable to work at that time, he placed his license in an inactive status. He subsequently recovered from his back injury and is not physically limited as a result of it. In 2005 he and his wife formed Florida Builders LLC. He wanted to activate his state license and needed to incorporate to get his license back. His license was activated. The intended and primary business purpose of Florida Builders LLC has been the sale and installation of hurricane shutters. Florida Builders has done no other work except for the installation of a roof. Prior to April 2006, Petitioner had discussions with Jose Barajas, the president and majority stockholder of Precision Drywall, Inc. He had known Barajas and Michael Schiavone, Precision's qualifier, for 20 years as business associates and as friends. When Schiavone died, Barajas contacted Petitioner seeking to have Petitioner become the qualifier for Precision. During and as a result of those discussions, Petitioner met many of Precision's employees, became familiar with Precision's finances and contracts, and visited some of Precision's job sites. Precision is a large company, specializing in the installation of drywall. Although installing drywall does not require supervision by a state-certified general contractor, Precision's large commercial projects frequently require bonding, and having a state-certified general contractor overseeing Precision's construction activities would be important in obtaining bonds. In addition, having a state- certified general contractor overseeing Precision's construction activities would allow Precision to expand its activities beyond the installation of drywall. Thus, there were advantages to Precision from hiring Petitioner. There were also advantages to Petitioner from becoming Precision's qualifier. Since the hurricane shutter business was not doing well, Petitioner in effect had no job or income. He no longer wanted to perform construction activities as a hands- on worker, but he had very much enjoyed running his own construction company and wanted to again become involved in the industry in a position of responsibility. Accordingly, Petitioner and Barajas agreed that Petitioner would become Precision's qualifier. Since Petitioner was not making a living in the hurricane shutter business, and since Precision wanted him to be its qualifier, it was agreed that Precision would pay Petitioner $1,000 a week while he was obtaining approval to be Precision's qualifier, with the amount of salary to be adjusted after Petitioner began his full-time employment with Precision. In April 2006 Petitioner filed his application to qualify Precision Drywall, Inc., as an additional business entity under his state-certified contractor's license. In July 2006 he appeared before the Additional Business Committee of the Construction Industry Licensing Board. The Committee determined that Petitioner did not intend to carry out his responsibilities for the construction activities of Precision Drywall, Inc., and that he intended to "broker" his license. It is clear from Petitioner's testimony under oath at the final hearing in this cause that he does intend to work full-time at Precision, carrying out his responsibilities for the construction activities of that company. In fact, he testified that he was willing to alleviate any concern the Board might have by resigning as the qualifier for Florida Builders, LLC, after which his wife could still sell hurricane shutters under that corporate name but could no longer install them. A review of the transcript of Petitioner's appearance before the Committee reveals, as Petitioner testified in the final hearing, that he was nervous and made jokes to overcome that nervousness at the meeting. The transcript does not reflect that Petitioner (or his wife, who answered many of the questions asked by Committee members) was under oath or understood the time-frame being questioned. Similarly, Petitioner's testimony in his deposition appears to confuse, as did some of the questions asked, the time periods when he was working full-time as a general contractor and the recent time period when he was simply selling and installing hurricane shutters when he was lucky enough to have some purchasers. When questioned at the final hearing in a chronological sequence, Petitioner's description of his activities through different time periods makes it clear that he is not gainfully employed and wishes to be and that being the qualifier for Precision Drywall gives Petitioner the opportunity to be employed in a position where he is responsible for the construction activities of a company rather than being a laborer during this phase of his life. Petitioner has 44 years of experience in all phases of construction. He has the qualifications required for state licensure, has been so licensed for over 20 years, and has only had one complaint filed against him during that time, which resulted in a reprimand and a $500 fine. He is willing to resign as the qualifier for Florida Builders LLC in order to work full-time for Precision Drywall, Inc. There is no basis for denying Petitioner's application to qualify Precision Drywall but for the Committee's concern that he could not work full-time for two different companies. It is clear that Petitioner has no such intent to do so--only to work full-time for Precision Drywall, supervising its construction activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered approving Petitioner's application to qualify Precision Drywall, Inc., as an additional business entity whether or not he resigns as the qualifier for Florida Builders LLC. DONE AND ENTERED this 1st day of February, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007. COPIES FURNISHED: G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399 William G. Shofstall, Jr., Esquire The Law Office of William G. Shofstall Post Office Box 210576 West Palm Beach, Florida 33421
