Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of March, 1982.
Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 21st day of September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
The Issue The issue is whether Respondent, TD Del Rio, LLC, should pay for investigative costs and expenses and undertake corrective actions that are demanded by the Department of Environmental Protection (Department), as set forth in the Amended Notice of Violation and Orders for Corrective Action (Amended NOV).
Findings Of Fact Background The Department has the authority to institute an administrative action to abate or correct conditions that may create harm to the environment. In this case, it filed an Amended NOV directing the existing and prior owner of certain property to undertake cleanup and cost recovery to redress the discharge of petroleum products and disposal of hazardous waste. The property is located at 4810 South 50th Street, Tampa, Florida, measures approximately 200 by 800 feet, and is further identified as Parcel Number U-03-30-19-1Q3-000112-00001.0. The property is located in an industrial area. Mr. Dearing operated a metal recycling facility on the property during the 1990s. The facility received scrap waste and passed waste through mechanical shears that shredded the waste for sorting and recycling. The Amended NOV alleges that all contamination on the property occurred while Mr. Dearing owned the property. The charges related to his activities have been resolved in a settlement agreement prior to the final hearing in this matter. The terms of the settlement are not of record. TD Del Rio, LLC, is a limited liability company formed in April 2012. It serves as a pension fund for a self-directed Individual Retirement Account for Mr. McRae. The company acquired ownership of the subject property in September 2012 by purchasing a tax deed from Hillsborough County. Respondent agrees that there has been a "discharge," as defined under section 376.301(13), Florida Statutes, of hazardous substances and pollutants (petroleum or petroleum products) on the property prior to September 1, 2012. Such discharges have not been assessed, remediated, or abated. Respondent agrees there has been a "disposal," as defined under section 403.703(9), of hazardous waste into and upon the property prior to September 1, 2012. Respondent agrees that the property is a "facility," as defined under section 376.301(19). Respondent agrees that the property is a "hazardous waste facility," as defined under section 403.703(15). Environmental Testing Pursuant to a contract with the Department, on April 24 through 26, 2012, Ecology & Environmental, Inc. (E & E), performed a detailed inspection of the property to determine if former recycling activities conducted at the property have impacted soil and groundwater beneath the property. The inspection collected samples of soil, sediment, and groundwater. The inspection was conducted in accordance with guidance documents set forth by the United States Environmental Protection Agency regarding sampling locations, sample types, sampling procedures, use of data, data types, and field quality assurance/ quality control samples. Just before E & E issued a final report, Respondent purchased the property at a Hillsborough County tax deed sale. On November 12, 2012, E & E issued a 532-page Comprehensive Environmental Response, Compensation, and Liability Information System Site Inspection Report (Report) detailing analytical results of soil, sediment, and groundwater sampling performed at the property. See Jt. Ex. 1. E & E concluded that the activities conducted prior to April 2012 impacted the soil, sediment, and groundwater at the property. The Department has adopted Soil Cleanup Target Levels (SCTLs), which are derived based on exposure to the human body. The SCTLs account for inhalation, ingestion, and absorption of contamination into people's bodies. The presence of hazardous substances above these levels presents a threat to persons who come into contact with the substances. If a site has no polychlorinated biphenyls (PCBs) or arsenic exceeding the SCTLs, there is no requirement for the owner to complete an assessment or manage exposure at the site. The testing reveals that the following substances are present in the property's soil from both zero to two feet and two to four feet below land surface at concentrations above the Department's SCTLs: arsenic, barium, cadmium, chromium, lead, carbazole, benzo(a)antracene, benzo(a)pyrene, benzo(a)pyrene toxic equivalents, and PCBs. The commercial/industrial SCTL for PCBs is 2,600 ug/kg. This target level is based upon human exposure to PCB contaminants eight hours per day. The residential SCTL, based on 24 hours of exposure per day, is 500 ug/kg. PCBs are found across the majority of the site at concentrations ranging from 940 ug/kg to 38,000 ug/kg, over times higher than the industrial SCTL and 76 times higher than the residential SCTL for soil of 500 ug/kg. The hazardous substances located in the upper two feet of land surface present the greatest potential for exposure due to potential inhalation, ingestion, and absorption of the substances. Some potential exposure pathways include foot traffic on the property stirring up dust which people present on site could then come into skin contact with or inhale. Any work done in or around the site that is intrusive in nature could present exposure pathways. In addition to soil contamination, the following hazardous substances are present in sediment on the property: arsenic, barium, cadmium, chromium, lead, mercury, silver, volatile organic compounds, semi-volatile organic compounds, and PCBs. The following hazardous substances and petroleum products are present in groundwater on the property at concentrations exceeding the Department's Groundwater Cleanup Target Levels (GCTLs): arsenic, barium, xylenes, carbon tetrachloride, isopropylbenzene, methyl tertiary butyl ether, tetrachloroethene, and trichloroethene. For one well sample, the 2012 investigation also reported an exceedance of PCBs of 1.2 ug/kg in groundwater. The presence of tetrachloroethylene and PCBs in groundwater is a specific concern at the property. PCBs are not readily soluble in water; however, tetrachloroethylene can act as a carrier for the PCBs and mobilize this contaminant to a greater extent vertically from the source area. This is a concern for the area surrounding the property given that the Floridan aquifer, which is a source of potable water for Hillsborough County, is located approximately 300 feet below ground surface in the surrounding area. Because Respondent has not completed a Site Assessment Report (SAR), the full extent of PCBs and other contamination in soil, sediment, and groundwater, including the contaminants' potential threat to the Floridan aquifer, is not known. Respondent did not present any evidence to contradict the findings and conclusions in the Report. Moreover, Respondent has stipulated that there has been a discharge of hazardous substances and petroleum products on the property prior to its purchase of the property in September 2012. Pre-Purchase Investigation of the Property by Respondent In order to minimize liability for petroleum contamination, Mr. McRae must have undertaken "all appropriate inquiry into the previous ownership and use of" the property before he purchased it, as required by section 376.308(1)(c). Mr. McRae failed to do so. Mr. McRae is the founder, manager, and registered agent of the company and has acquired at least 20 other properties through tax deed sales. He also has bought properties contaminated with petroleum prior to the purchase of the instant property. In addition, he has owned at least 30 gas stations and has hired environmental contractors to remove petroleum tanks for previous gas stations that he bought. Mr. McRae's grandson-in- law, Matthew Moralejo, has no official title with the company, but he helps in running the business, has communicated with the Department, and bought property, including the one at issue here, at Mr. McRae's direction. Mr. McRae and Mr. Moralejo acknowledge that, before the purchase, they conducted very little research into the property, searching only for things "easily accessible or identified with the property," such as code enforcement issues or liens. They conducted visual research of the property by driving by it and looking at its condition. When the property was purchased, "the place was a wreck" and "just full of overgrowth and junk." Good commercial practice in the purchase of property upon which potentially contaminating activities have occurred entails consultation with a person with appropriate knowledge and experience. Before purchasing the property, Mr. McRae did not consult with an environmental attorney or environmental consultant regarding the potential liability associated with property used as a metal recycling site. If Mr. McRae had hired an environmental consultant to assist him in assessing the likelihood of contamination at the property, it would have been standard practice to find public records about the property, including any prior enforcement actions taken against prior owners and operators of the property, all of which were public record. A consultant likely would have recommended that Mr. McRae conduct a site assessment in accordance with Florida Administrative Code Chapter 62-780. Section 376.308(1)(c) requires that in determining whether all appropriate inquiry was undertaken by a purchaser of contaminated property, it is necessary to consider the "specialized knowledge or experience of the defendant, the relationship of the purchase price to the value of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection." Mr. McRae has no specialized knowledge of sites contaminated with hazardous substances. However, as noted above, he has extensive experience regarding the regulation, assessment, and remediation of petroleum-contaminated sites. He has bought multiple properties through tax deed sales, and he has owned at least 30 gas stations. He has hired environmental contractors to remove petroleum tanks from properties he owned. He also is familiar with the Early Detection Incentive Program instituted by the Department, under which the Department remediates petroleum- contaminated sites. The purchase price of the property in 2002 was $200,000.00, the purchase price in 2012 was $133,100.00, and the taxable value of the property in 2015 was $408,106.00. Past information about the property was reasonably ascertainable. Ownership history of the site is available from the Hillsborough County Property Appraiser's Office, Hillsborough County Clerk of the Circuit Court, and Hillsborough County Environmental Protection Commission (EPC). Information regarding regulatory actions taken at the property also was reasonably ascertainable. There were many documents in existence at the time Respondent purchased the property that showed contamination was present on the property. They included a 1995 warning letter from the EPC to previous owners of the property detailing petroleum contamination present on the property, a 1996 EPC request for a previous owner to submit a plan to address onsite soil contamination, and a field investigation conducted by the Department in April 2012, or five months before Respondent purchased the property. There is no evidence that the documents referenced above were not "reasonably ascertainable information." Although a visual inspection by a lay person would not disclose the presence of contamination at the property, Mr. McRae should have known to seek information regarding past enforcement history and site investigation performed at the property. Post-Purchase Actions After buying the property, Respondent dug up debris including tires that were approximately four feet below the soil surface. After removing debris from the contaminated soil, Respondent spread the disturbed soil. To make the property more attractive to prospective tenants, Respondent then spread up to four inches of gravel around the property. This amount of gravel did not cover the entirety of the contaminated area and did not break the exposure pathway that the contaminants presented to people on the property. According to a Department expert, two feet of clean fill over the contaminated area would have been an acceptable intermediate step to break the exposure pathway. After spreading the gravel on the property, Respondent leased the property to three tenants: a landscape business; a portalet company; and a storage container facility. The portalet company and storage container tenants both use the property as storage facilities, including loading and unloading portalets and storage containers, when needed. The contaminants present in the soil present a potential for incidental exposure to workers on the site, especially given that workers are constantly stirring up dust by loading and unloading equipment on the property. Department Communications with Respondent On February 14, 2014, the Department sent Mr. McRae a letter informing him that the Department had information indicating that contaminants may have been released or discharged at the property. The letter referenced the 2012 E & E Report, which documented metals, volatile organic compounds, semi- volatile organic compounds, and PCBs in site soils, sediments, and/or groundwater above SCTLs, Sediment Quality Assessment Guidelines, or GCTLs. The letter stated that failure to submit an SAR within 180 days of receipt of the letter, or by August 14, 2014, may subject Respondent to enforcement action to compel such compliance. Matthew Moralejo responded by email on July 17, 2014, and stated, in part, that "we have never conducted any type of business that would have led to the contamination of said property." The same day, the Department responded by email directing Mr. Moralejo to the Department's public database, OCULUS, that provides reports and correspondence regarding facilities regulated by the Department. The Department provided a link to the 2012 Report and the name of a contact person to discuss Respondent's liability as the current property owner, as well as possible cleanup programs that are available when the current owner is not the one causing the contamination. On September 29, 2015, the Department sent another letter, with attachments, to Mr. McRae. The Department stated that "[s]ome limited site assessment activities have been performed [by E & E] at the site historically; however, the work completed and the documents submitted to date do not constitute a complete [SAR] as required by Rule 62-780.600, F.A.C." The Department again requested an SAR, and, in the alternative, offered a meeting to discuss the issues associated with the letter. Again, the letter warned Mr. McRae that if an SAR was not filed within the timeframes required by the rule, he may be subjected to an enforcement action. In August 2016, Mr. Chamberlain, a Department geologist, met with Mr. McRae and Mr. Moralejo at the property. During the meeting, Mr. Chamberlain took photographs of the site and explained his concerns with the property. Specifically, he informed them that the SAR was still outstanding; and he recommended that Respondent hire an environmental consultant to assist them in the site rehabilitation process. In October 2016, Respondent hired an environmental consultant, Mr. Doherty. On November 29, 2016, the Department emailed Mr. Doherty reminding him that an SAR was due by December 13, 2016. Three days later, Mr. Doherty asked that he be given a six-month extension to file an SAR; the Department authorized only a four-month extension, or to April 3, 2017. Mr. Doherty never conducted any sampling at the property and he did not submit an SAR. Mr. McRae explained at hearing that the consultant "never did [any] work, so he didn't get paid." On May 25, 2017, the Department sent another letter to Mr. McRae stating that it had not received an SAR, and, as a final request prior to initiating enforcement action, requested that he provide a summary of all site assessments completed since September 29, 2015, complete installation of groundwater monitoring wells and conduct sampling within 90 days, and submit an SAR by October 23, 2017. Respondent did not comply with any of those requests. To date, an SAR has not been submitted and a site assessment has not been conducted. The Department then issued an NOV, as amended. Given the numerous letters and emails sent to Respondent, and various site inspections, the Department has incurred costs and expenses of at least $500.00 investigating this matter. Respondent does not dispute this amount. Respondent's Defense Respondent essentially contends it is an innocent third-party purchaser because it had nothing to do with the recycling activities conducted on the property during the 1990s. It argues that the clean-up costs requested by the Department equal or exceed the value of the property and are cost prohibitive. In its PRO, Respondent contends that if the Department reached a settlement with Mr. Dearing, whose company is responsible for the hazardous waste discharge in the 1990s, this should relieve Respondent from any responsibility. It asks that the Department use "compassion" in dealing with him.
Conclusions For Petitioner: Paul Joseph Polito, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent: TD McRae, pro se Matthew Moralejo, pro se TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order sustaining the charges in Counts I, II, and III of the Amended NOV. It is further RECOMMENDED that within 30 days of the final order, Respondent TD Del Rio, LLC, shall commence a site assessment and submit an SAR in accordance with rule 62-780.600. Respondent shall assess and clean up all hazardous substance contamination and petroleum contamination at the property in accordance with chapter 62-780 and the timeframes therein. It is further RECOMMENDED that within 90 days of the effective date of the final order, Respondent shall pay $500.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the notations "OGC Case No. 17-1090" and "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the State of Florida Department of Environmental Protection, Southwest District, 13051 North Telecom Parkway, Suite 101, Temple Terrace, Florida 33637. DONE AND ENTERED this 24th day of July, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 July, 2019. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) TD McRae TD Del Rio, LLC 4608 East Columbus Drive Tampa, Florida 33605-3210 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
Findings Of Fact Respondent Paul McAllister is a certified general contractor and was the qualifying individual for the firm of Garnett-McAllister Associates, Inc., Fort Lauderdale, Florida, in 1977 and until July, 1978. (Stipulation) On April 8, 1977, Respondent's firm entered into a contract with Ray Borchardt, Westchester, Illinois, for the construction of a four-unit apartment building at Lighthouse Point, Florida. The contract provided for a total price of $139,110.00, payable in five payments or "draws" in various percentages of the contract price at specified stages of construction. However, the contract did not specify a time for performance or completion of the building. It contained a clause stating "Any alteration or deviation from above specifications involving extra costs - will be executed only upon written orders, and will become an extra charge over and above the estimate." Respondent obtained a building permit for the construction of the building from the building official, City of Lighthouse Point, Florida, on May 8, 1977. (Petitioner's Exhibits 1, 2) Prior to the commencement of construction, it was determined that foundation pilings for the building were required and therefore Borchardt sent Respondent the sum of $13,519.65 on June 9, 1977, as an additional sum over and above the contract price. At this time, he also sent the first draw in the amount of $20,866.00 even though such payment was not called for until completion of the foundation and "rough in" of plumbing and electric connections. On August 1, 1977, Borchardt paid the second draw of $20,866.00 although the roof was not on, nor had the beam been poured at the time as called for under the contract. Respondent was delayed approximately three weeks by failure of a supplier to provide the second floor concrete planking. On October 24, 1977, Borchardt paid the third draw in the amount of $34,777.00 although construction was not at the stage called for under the contract. On November 22, 1977, Borchardt paid $18,000.00 of the fourth draw and on January 23, 1978, paid the remaining portion of $16,777.00. At that time, the roof was not completed, tile work had not been started, woodwork was incomplete, and kitchen cabinets and vanities had not been installed pursuant to the terms of the contract. Borchardt had made a number of trips from Illinois to Florida during the construction period and was aware that his various partial payments were made in advance of completion of the several construction phases. He had dealt primarily with Edward J. Garnett, president of Garnett-McAllister Associates, Inc., as to the financial aspects of the project. Respondent primarily was a "field" man in charge of supervising construction. Also, Borchardt's son-in- law, Vincent A. Svegel, had moved to Florida in September, 1977, and acted as Borchardt's contact with Respondent's firm after that time. Both Respondent and Garnett informed Svegel in the fall of 1977 that the building would be completed by December 15. (Testimony of Borchardt, Svegel, Petitioner's Exhibit 1) Although during the early part of 1978, five subcontractor liens were filed against the property for work and materials supplied on the project, three of these liens were eventually paid by Garnett-McAllister and the remaining two totaling over $7,000.00 were eventually paid by Borchardt. One of the latter liens was filed by Pompano Roofing Company, Inc. That firm refused to install the roofing tile until paid and the tile therefore "sat on the roof" for approximately five months. On March 13, 1978, Borchardt filed a complaint with Petitioner based on the fact that the work had not been performed according to the draw schedule and liens had been placed on the property. Borchardt also complained to James P. Simmons, the building official of Lighthouse Point about the project delays and claims of lien. As a result, on March 14, 1978, Simmons referred the complaint to Petitioner because Respondent was certified by the state. Petitioner's local inspector, Wallace Norman, issued a Notice of Violation of Section 468.112(2)(e), F.S., to Respondent on March 15, 1978, for diversion of funds based on the filing of liens by suppliers. In a meeting with Respondent and Garnett, Norman asked for an explanation of the situation. They told him that they had been building a house in Davies, Florida, and had used some of the money that Borchardt had paid them to pay suppliers on that house and they had expected to be able to put the money back into the Borchardt project when they sold and realized a profit on the other house. (Testimony of Borchardt, Svegel, Simmons, Norman, Petitioner's Exhibits 7, 9, 10; Respondent's Exhibit 3) During the period between January and March, 1978, some progress was made toward completing the building, including the rough in of the plumbing and electrical systems, installation of inside lath work, installation of tub and shower stalls, and extension of a kitchen area. As late as April 19, 1978, Respondent accompanied Borchardt to a supplier to purchase windows for the building. (Testimony of Svegel, Respondent, Pet. Ex. 3) On May 29, 1978, Svegel, in behalf of Borchardt, notified building official Simmons that Garnett-McAllister Associates, Inc. had been terminated from any further work on the building due to the fact that the building permit had expired and would not be reissued, and requested authorization to finish the building. Simmons thereafter issued a building permit to complete the building to Borchardt on June 21, 1978. He also instructed his staff not to issue any more permits to Respondent due to his "poor track record" and liens which had been filed against the building under construction. Simmons issued the completion permit under the authority of Section 304.3 of the South Florida Building Code, Broward County Edition, which provided that a building permit expires and becomes null and void if work is abandoned at any time for a period of ninety days. Although Simmons considered that the time limit had elapsed because an inspection had not been called for by the builder for ninety days, he erroneously believed that the last inspection had been on January 4, 1978, when, in fact, the city's inspection records show that the plumbing department had made an inspection of rough plumbing on March 27, 1978. Simmons did not notify Respondent of the issuance of the second permit. He considered that he had inherent authority in his position to prohibit issuance of additional permits to Respondent, but didn't consider his action in this regard to be disciplinary in nature because the City of Lighthouse point does not issue contractor's licenses. Therefore, the matter was referred to Petitioner for any action against Respondent's state certification. (Testimony of Simmons, Svegel, Petitioner's Exhibit 3, 4, 11, Respondent's Exhibit 1) At some time prior to obtaining the permit to complete the building, Borchardt had refused to pay the final draw of $27,824.00 to Garnett-McAllister Associates, Inc. because the firm was so far behind on the job. Garnett had told Borchardt that be was selling another home for $80,000.00 and was going to put some of the money he realized from that sale into the Borchardt project. He wanted Borchardt to loan him $20,000.00 and take back a lien on a boat in order to have money in the interim to work on the building. When Borchardt declined to do so, Garnett told him that he could not complete the job. Borchardt also received a call from Respondent to the effect that he would finish the job on his own for $150.00 a week if Borchardt would pay the remaining costs. Borchardt informed him that he would pay nothing further until the job was completed. Garnett had also told Svegel that he had used some $25,000 to $30,000 of the Borchardt funds to construct the house in Davies and that he would put that money back into the firm's business account to use for the Borchardt building when the house was sold. (Testimony of Borchardt, Svegel, Respondent) At the time Borchardt took over completion of construction, the building was approximately 70-75 percent completed. Borchardt paid an additional sum of about $82,000.00 to complete the building which was some $54,000.00 more than the original contract price. However, about $12,000.00 of this sum constituted changes to the original specifications that had been agreed to by Borchardt during the course of construction. Some of these involved changes due to building code requirements, such as the addition of a ramp for the handicapped. Other changes were made on the recommendation of subcontractors or resulted from requests by Borchardt's daughter and son-in-law who were intending to occupy one of the apartments in the building. None of these changes was reflected in a written change order or supplemental agreement to the contract because Borchardt had agreed to the changes and neither party to the contract apparently considered it necessary to formalize these matters. Additional changes in the sum of some $12,000 were made to the building after Borchardt took over construction. These primarily dealt with carpeting, appliances and the like. (Testimony of Borchardt, Svegel, Simmons, Respondent, Stipulation, Petitioner's Exhibits 5, 8) Respondent testified at the hearing and disclaimed knowledge of the financial affairs of the corporation which he claimed were handled exclusively by Garnett. He denied ever abandoning the project and stated that he was unaware, until June 7, 1978, that Borchardt was taking over the construction project to complete. He acknowledged that funds became a problem about mid- January, 1978, and that he then recognized that the contract price had been set at too low a figure because cost overruns were being experienced. He denied diversion of Borchardt's funds to the Davies house, and claimed that his firm did not purchase supplies for that project. He conceded, however, that the firm had one corporate business account from which suppliers on all jobs were paid. Respondent further testified that when funds for the Borchardt building became scarce, profits from other jobs were used in meeting construction costs on the building. He acknowledged receiving a salary of $8,420.00 during the course of construction and said that Garnett had also drawn a sum of approximately $11,000.00 for himself. (Testimony of Respondent) A review of the books of Garnett-McAllister Associates, Inc. by a certified public accountant indicated that they were not well kept and were frequently in error. The auditor's report reflected that the firm had expended at least $80,675.00 in direct construction costs on the project. Certain cost items could not be verified due to the failure of suppliers to respond to the auditor's inquiry. These accounts were reflected on the books of the firm at a total of approximately $1,000.00. (Testimony of Webb, Respondent's Exhibit 4)
Recommendation That Respondent's certification as a general contractor be suspended for a period of 90 days, but that he be permitted to complete any contracts which are uncompleted at the time suspension is effected. DONE and ENTERED this 25th day of April, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32302 Alan C. Brandt, Jr., Esquire 1040 Bayview Drive Fort Lauderdale, Florida 33304 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether or not Respondent's certified general contractor's license should be disciplined because he aided or abetted an uncertified or unregistered person, knowingly combined or conspired with an uncertified or unregistered person by allowing his certificate or registration to be used by an uncertified or unregistered person with the intent to evade Chapter 489; acted in the capacity of a contractor under an unregistered or uncertified name; engaged in fraud, deceit, or gross negligence, incompetence, or misconduct in the practice of contracting as alleged, in violation of Subsections 489.129(1)(e),(f),(g) and (m), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with the responsibility to investigate construction activities in Florida and, where indicated, to file Administrative Complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and other rules and regulations promulgated pursuant thereto. During times material, Respondent, Richard L. Melvin, was licensed as a general contractor, having been issued license number CG C022926. During times material, Respondent did not qualify Jeffrey Gaston or Tropical Exteriors & Services, Inc. (TESI), nor did said entity or contractor's name appear on Respondent's license. During times material, Jeffrey Gaston d/b/a TESI, was never licensed nor qualified to do business as a contractor in Florida. During times material, Respondent was not a licensed roofing contractor. On or about March 31, 1987, Jeffrey Gaston contracted with Deborah and Clinton Weber to repair a roof and renovate a bathroom at their residence for the sum of $5,000.00. Respondent's name, license number, address and telephone number was listed on the Gaston/Weber contract. Jeffrey Gaston d/b/a TESI entered into a contract with Wilfred Butler on January 12, 1987, to replace a back porch at his residence. Respondent's general contractor's license number was listed at the top of the agreement between Gaston-TESI/Butler. Checks drawn by Butler were made payable to Respondent/TESI. Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the Butler project. (Petitioner's Exhibit 7.) Respondent admitted to authorizing Gaston or TESI to use his name and certificate number on contracts. Respondent was aware of approximately 20 contracts and several other permits wherein Gaston/TESI obtained the contracts or permits by using Respondent's name and license number. Respondent admitted receiving approximately $2,000.00 for supervising TESI. Respondent never disassociated himself from Jeffrey Gaston until May 31, 1987. Petitioner introduced ten contracts for work in Pinellas County from December 1986 to May 1987, with Respondent's name and state certification number with Jeffrey Gaston d/b/a TESI listed as the contractor. (Petitioner's Exhibit 9.) Respondent obtained a permit for Jeffrey Gaston d/b/a TESI for the installation of aluminum soffit and fascia on the Stitches' home situated at 111 Aurora Avenue North, Clearwater, Florida. Respondent did not supervise the installation of aluminum soffit and fascia on the Stitch's residence. Respondent, as a general contractor, is responsible for all phases of work for which he contracted for and/or obtained permits. Respondent was aware that Jeffrey Gaston was not a licensed contractor in Florida. Jimmy Jimenez has never been a licensed contractor in Florida. J & J Construction Company was qualified in February 1988, under Respondent's license number, CG C022926. Thereafter, during February 1989, J & J Construction was qualified under Respondent's license number RC 0058448. Respondent did not attempt to qualify J & J Construction until he was cautioned by Petitioner's investigators Steven Pence and Dennis Force, that his construction activities amounted to "aiding and abetting an unlicensed contractor." On or about December 11, 1987, Wiley Parks, Jr., entered into a contract with J & J Construction to perform construction work and remodel a home for Parks located at 1722 West Arch Street, Tampa, Florida. In conjunction with that contract, a second contract was submitted by J & J Construction for Mr. Parks, although unbeknownst to him, which utilized Respondent's name and contractor's license number at the top of the agreement. Wiley Parks spent a great deal of his time observing the construction and remodeling work by J & J. Respondent was only seen by Wiley Parks when they met at a local bank to cash a check which represented a draw submitted by Respondent for construction work done at the Arch Street construction project. Respondent obtained a permit for the Parks job on January 6, 1988, which was prior to the time he qualified J & J Construction as the entity through which he would conduct construction business. Respondent, although required to do so, never called for a final inspection on the Parks job. The floor joists at the Parks job were disapproved by the Hillsborough County Building Department and were never repaired by Respondent. Employees of J & J were observed working at the Parks job site on January 4 and 8, 1988. Respondent was, on two occasions, the subject of prior disciplinary action by Petitioner during 1987. On one occasion, probable cause was found on August 12, 1987 and the case was closed by issuing a letter of guidance to Respondent. On the second occasion, probable cause was found on October 7, 1987. Final action was taken on February 11, 1988, whereby an administrative fine of $1,000.00 was imposed against Respondent or, alternatively, a 30-day suspension of his license. Respondent paid the administrative fine within the allotted time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent's general contractor's license number CG C022926 be REVOKED. 1/ RECOMMENDED this 26th day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990.
Findings Of Fact At all times relevant hereto, Respondent, Victor L. Contessa, (Contessa) was licensed as a real estate broker in the State of Florida, having been issued license Number 0016808. The last license issued to Respondent was as a broker, c/o Cavalier Southern Realty, Inc., 4343 Ridgewood Avenue, Port Orange Florida, 32019. At all times material hereto, Contessa was owner and president of Cavalier Development and Building Corporation. In 1983, Charles Hill purchased a lot in Port Orange, Florida, more particularly described as Lot 29, Phase One, Cypress Grove. In June of 1983, Charles Hill wished to have a house constructed on his lot. Mr. Hill spoke with Contessa regarding the construction of the house. After reviewing plans with Contessa, Hill entered into a written Building Agreement with Contessa whereby Contessa agreed to construct a house for Hill for $50,000.00, plus extras. At the time he signed the Building Agreement, Hill believed that Contessa was a licensed building contractor. He based this belief upon representations made by Contessa to Hill that Contessa was a licensed building contractor. The Building Agreement, dated June 4, 1983, listed Cavalier Development and Building Corporation as the contractor and was signed by Contessa as president of Cavalier Development and Building Corporation. Contessa was not a licensed building contractor when he signed the Building Agreement. In order to have the house constructed as set forth in the Building Agreement, it was necessary for Contessa to hire a licensed building contractor. Contessa contacted Donald E. Welch, a licensed residential contractor. Contessa represented to Welch that Contessa's company, Cavalier Development and Building Corporation, was the owner of Hill's lot. Based on that representation, Contessa entered into a Building Agreement with Welch to have Welch construct the house for $42,500.00. Welch did not become aware that the lot in question was owned by Hill and not by Contessa or Cavalier Development and Building Corporation until October 25, 1983, when Welch attempted to pull a building permit. At that time, Contessa advised Welch that the owner's name was Charles B. Hill. Hill paid Contessa a total of $45,000.00 for construction of the house. In January 1984, Welch slowed construction on the house because Contessa did not pay him his construction draws when they were due. Until this time, Contessa had instructed Hill not to discuss construction with any of the workmen on the site, but to bring any concerns directly to Contessa. Additionally, Contessa had instructed Welch not to deal directly with Mr. Hill, but instead to discuss all construction matters directly with Contessa. Because of the slowdown in construction, Hill and Welch discussed the matter between themselves. It was at this time that Hill learned that Welch was the licensed contractor, and not Contessa. Hill then began dealing directly with Welch. Welch completed the construction upon payment of $8,842.00 paid directly by Hill to Welch. Contessa, in the name of Cavalier Development and Building Corporation filed a mechanics lien as a contractor against the Hill property on May 16, 1984.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Division of Real Estate, enter a final order suspending the license of Victor L. Contessa for a period of five (5) years and assessing an administrative fine against Victor L. Contessa in the amount of $1,000.00. DONE AND ENTERED this 13th day of August, 1985, at Tallahassee Florida. DIANE K. KIESLING 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 13th day of August, 1985. COPIES FURNISHED: James H. Gillis, Esquire Staff Attorney Department of professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Victor L. Contessa Box 566 Port Salerno, Florida 33492 Victor L. Contessa 101 Santa Lucia Avenue West Palm Beach, Florida 33492 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey, turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey." On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property. He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a $500 administrative fine. DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
Findings Of Fact The parties stipulated to the following matters which are incorporated in and made a part of the Findings of Fact: The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461. The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE 9th Street in Gainesville, Florida, for $32,000. The Respondent represented to the owners that the house would have a one-year warranty. On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street, and that based upon these violations a certificate of occupancy could not be issued. On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued. As of June 12, 1980, Respondent had not corrected all of the code violations. Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation. Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper. Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners. With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped. Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations. Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3. The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3. Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5. Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content. Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house. Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion. Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped. Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure. Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use. Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980. In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code. Johnson did not execute this written agreement. On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35). Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond. Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981. STEPHEN F. DEAN 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 27th day of October, 1981. COPIES FURNISHED: Charles T. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
