Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Harry Clinton Brackin, is a licensed registered roofing contractor holding license number RC0045880. Respondent was licensed at all times material to this action. Respondent is the owner and licensee for Brackin Roofing Company. Sometime around February 20, 1987, Respondent entered into a contract with Mrs. Arebelle S. Hughes, an elderly woman, to re-roof her house and remodel the front porch of her home located in Vernon, Florida. In addition to the work performed pursuant to the contract, there were verbal construction agreements between Mrs. Hughes and Respondent for the remodeling of the back porch, removing and closing out windows, replacing and framing doors, placing molding in the kitchen and various other carpentry repairs. Ms. Hughes asked Respondent to perform the additional work because she was well satisfied with the roofing job done by Respondent and she was unable to find a licensed contractor willing to come to Vernon and perform the work she wanted done. Respondent, in fact, informed Ms. Hughes he was not a contractor and in his opinion she needed a contractor. However, Ms. Hughes still wanted Respondent to do the additional work for the above reasons. Later, Mrs. Hughes became very dissatisfied with the quality of Respondent's remodeling work and advised the Respondent of her complaints. However, the evidence disclosed that her complaints were not well communicated and Respondent did generally try to meet Ms. Hughes' requests. None of Respondent's work constituted a hazardous condition and no evidence was offered which indicated an actual building code violation. The Respondent has not corrected the work. Mr. Harold Benjamin, an expert in the area of general contracting, reviewed the contract, the job site, the Respondent's license, and the pertinent Florida Statutes. Mr. Benjamin's expert opinion was that the Respondent's contracting job with Mrs. Hughes definitely exceeded the scope of Respondent's roofing license. Mr. Benjamin added that the carpentry work itself demonstrated an unfitness in the area of carpentry contracting and that Respondent's work did not in some respects meet the minimum carpentry standards for the industry. However, Respondent's work was not so bad as to constitute gross negligence in the area of contracting. This is particularly true since Respondent disclosed to Ms. Hughes that he was not a contractor and that the work she wanted done should be performed by one. Respondent's duty was thereby limited to a duty to perform reasonably given his abilities. Respondent did meet that duty. Respondent was disciplined for the same type of violation in 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Construction Industry Licensing Board impose an administrative fine of $2,500.00. DONE and ORDERED this 5th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2721 The facts contained in paragraphs 1, 3, 4, 6, 7 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 2 and of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are adopted except as to the finding pertaining to gross negligence which is rejected. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harry Clinton Brackin Route 1, Box 2470 Chipley, Florida 32428 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. 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 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
The Issue The issues to be resolved in this proceeding concern whether the Respondent's license as a certified building contractor should be subjected to disciplinary measures because of the allegations and violations of Section 489.129, Florida Statutes, alleged in the Administrative Complaint and what, if any, penalty is warranted.
Findings Of Fact The Respondent is a certified building contractor, holding License No. CBC016364, authorizing building contracting work in the State of Florida. The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulation of the licensure of certified building contractors and regulation of the practice of building contracting in the State of Florida in accordance with Chapter 489, Florida Statutes. The Respondent entered into a building contract with Barbara Clifton for the construction of a new home on or about November 1997. The home is located at 9450 Northwest 133rd Lane, Chiefland, Florida. The contract price agreed upon between the parties for the construction of the home was $68,953.00. During the course of the construction, the Respondent accepted $49,714.75 in construction "draws" from the owner. The Respondent engaged in construction of the home from late 1997, until March 1998. In March 1998, after a number of disputes arose between the Respondent and Ms. Clifton, she terminated the contract and ordered the Respondent to stay off the premises of the project. The Respondent had completed approximately 90 percent of the construction on the home at the time the contract was terminated and he was barred from the job site by the owner. The home contained a number of defects and alleged defects at the time construction ceased. Evidence of some of the defects was established by the testimony of Ms. Clifton, the owner, and especially by that of the Petitioner's expert witness, Mr. Abbott. Testimony and exhibits presented by the Respondent showed that in some instances the defects testified to by Mr. Abbott did not actually exist. The anchor bolts securing the bottom or sole plate to the slab/foundation wall, for instance, were shown to be in compliance with the building code by being three feet apart (on centers). Mr. Abbott had opined that they were 72 inches apart. Also, the photographic exhibits presented by the Respondent showed that the metal anchor straps securing the framing wall studs to the slab and foundation were indeed in place, although Mr. Abbott had opined that they were not. In any event, the testimony and evidence presented through Mr. Abbott as a witness established a number of plan deviations and structural defects in the home. The plan defects were as follows: Garage floor elevation: There was a differential between the finished interior floor level of the house and the garage floor. The plans called for a 16-inch differential. The differential between the two floor levels in the house as built, however, was 48 inches. This deviation was made by the Respondent within ten days after the start of construction. It was because of a significant slope on the lot on the site of the house which necessitated, at the garage site, that the floor be some four feet below the floor level of the interior of the house in order to achieve a level floor without the use of fill dirt. The owner maintains this was done without notice to her and that she had not approved the change in the floor level and was not consulted by the Respondent in this regard. The Respondent maintains that indeed he did explain the problem to the owner and that he offered the solution of "flipping" the garage portion of the house and plan to the other end of the house where less slope would be involved and the floor levels would more nearly approach the plan specifications. Alternatively, he recommended the use of fill dirt to raise the level of the garage floor at the specified location of the garage, to overcome the effect of the slope of the lot at that location. He maintains that the owner refused to approve that approach and that therefore he had no choice but make the garage floor level four feet below that of the interior floor level of the house. In any event, the weight of the evidence shows that the owner and the Respondent did discuss the matter, although they may not have agreed as to the solution. There is, however, no record or evidence of an approved written change order with the owner's assent or any notice to the lending institution of the change from the plan's specifications in this regard. Further, in this connection, the stair systems departed from the plan specifications. The stair system in the garage, of necessity, in order for the occupants of the house to be able to egress through the door opening into the garage, down to the garage floor had to use steps going down four feet. The steps and associated landing, constructed with pressure-treated lumber, extended a significant distance out into the floor area of the garage. This was not called for by the plans either. The garage stair thus obstructed the use of the garage and indeed denied access to housing full-sized vehicles in the garage. The Respondent should have foreseen this problem and at the very least, if the four-foot differential and floor height was necessary (which could have been alleviated by filling), should have re-oriented the stairs so that full-sized vehicles would not be barred from the use of the garage. Additionally, there was a variation in stair height at the entry stair to the house which exceeded code tolerances and constituted a "trip step" which was a safety hazard at the top of the stairs, where they were attached to the landing, where entry and egress to the house were to be effected. The attic stair, which was designed to fold up and down inside the garage evidently was constructed and installed according to specifications. This resulted in the attic stair, when folded down for use, being substantially above the lowered floor of the garage and therefore unusable. The Respondent should have foreseen this defect and taken steps to alleviate and accommodate it given his lowering of the garage floor, which was a departure from the plan specifications on the approved plans. In any event, the Respondent certainly should have had a written change order signed by the owner approving a change in the garage floor level or approving the use of fill dirt to raise the floor level to accommodate the 16-inch differential specified in the approved plans. Neither was done. In fact, it is apparent that although the Respondent and the owner discussed the garage floor level problem, that the Respondent proceeded to lower the garage floor-level before the owner actually had knowledge that the Respondent was going to carry out that approach. Ceiling height: The ceiling height was reduced from the nine feet specified in the plans to eight feet. The exterior eave heights established by specific dimensions in the plans were also reduced. The complainant owner indicates that she was not consulted prior to this change and denied approving it. The Respondent maintains that if he had intended constructing ceilings higher than an eight-foot ceiling, that a ten-foot ceiling dimension would have been employed since framing lumber is cut in standard eight, ten, or twelve-foot lengths and that it would be wasteful to cut ten-foot framing studs to construct a nine-foot ceiling. He maintains that the mention of nine feet for ceiling heights in the plans was an oversight or typographical error and that the parties actually intended eight-foot ceilings from the start of their discussions regarding construction of the house. He stated that the owner had never complained to him of the use of eight-foot ceiling heights. The evidence, thus, does not clearly show that the Respondent departed from the owner's actual wishes in this regard. At the very least, however, the Respondent should have secured an approved written change order and provided notice to the lending institution with regard to this change from the plan specifications. Chimney: The "architectural surround" device for the chimney was not installed. This is both a decorative and protective cover designed to surround the chimney flue and, in addition to being a decorative finish item for the roof of the house, to protect the chimney flue from wind forces which it was not designed to resist. This device should have been installed before the metal roofing was installed but that was not the case. The Respondent was forced to quit the job before the architectural surround device for the chimney had been installed. The Respondent maintains that he was at all times ready and willing to install it, even at his own expense, but the owner would not allow him back on the job site to finish this portion of the work. This left the metal chimney flue standing alone, exposed and not itself properly installed since it could be moved with slight pressure from the fingers of one hand some five to eight inches in deviation from the vertical position that it was supposed to occupy. This incorrect installation of the chimney flue could be a hazard to life or property. If the Respondent had installed the architectural surround for the chimney at the proper time, before the installation of the metal roofing, the chimney installation would have been completed before the Respondent was ordered to leave the job site by the owner. Structural Defects: The "stem wall" or foundation wall was specified in the plans to be three courses of eight- inch block, with a No. 5 steel vertical reinforcing bar embedded in the wall at 48-inch intervals (on centers). The Southern Building Code requires the vertical reinforcing bar to be hooked at the top and bottom where it connects to the concrete footing on the bottom of the stem wall or foundation wall and, on the top, where it hooks into the concrete slab. The code also requires that cells in block walls which contain the vertical reinforcing bars have to be filled solidly with poured concrete. The code also requires a horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab where it joins the top of the stem wall. The stem wall as it was actually built varies from three to six courses of block. The No. 5 vertical steel reinforcing bars were determined to be spaced at 64-inch intervals on center instead of the required 48-inch interval. They were not hooked at the top and it is not clear whether they were hooked at the bottom since Mr. Abbott was unable to view the bottom of the wall because it was already constructed. However, at least one of the cells which was torn into and exposed had a vertical reinforcing rod but was not filled with concrete. This was on a corner of the house where it is perhaps more critical that the reinforcing rod be hooked to attach to the slab and that its cell be filled with poured concrete, which was not done. The required horizontal No. 5 steel reinforcing rod or bar around the perimeter of the slab called for by the code was omitted. Exterior frame walls: Mr. Abbott opined that the building official considered SSTD 10-96 "check list" to be part of the permit package. It is more stringent in its requirements and supercedes the plans governing framing and anchorage requirements for exterior frame walls. The construction plans specified 2 x 4 framing for the walls, with metal connectors joining the studs and the bottom of sole plates together, with anchor bolts at six-foot intervals (on centers), securing the petition or exterior frame wall to the floor slab. Additionally, Mr. Abbott contends in his testimony that the "wind load checklist" requires the basic framing and the walls to be 2" x 6" material instead of 2" x 4" material, along with the framing clips where the studs join the top and bottom wood plates of the exterior wall partitions and that anchor bolts be spaced at 48 inches on center in securing that exterior wall partition to the concrete slab. The walls, as built, were made of 2" x 4" stud material with metal framing clips installed joining the members, as well as anchor bolts approximately three feet apart or better than the specifications and the code required. This is shown by the Respondent's testimony, corroborated by his photographs and evidence showing the location of the anchor bolts and the metal framing clips joining the vertical studs in the wall to the sole plate or bottom plate of the wall. Thus, it would appear that the wall complies with the wind load checklist requirements, except that 2" x 4" material instead of 2" x 6" material was used. It is not clear, however, that there is actually a mandatory requirement that 2" x 6" material be used. Apparently, such is not required by the Southern Building Code. Thus, clear and convincing evidence has not been adduced to establish that wind load requirements have not been met by the wall as built. The exterior siding installed on the walls, however, does not comply with the manufacturer's requirements or with the appropriate construction practice. The "hardie board" siding was called for in the specifications but some of the siding is hardie board artificial wood grain siding and some is Abco siding. The two different brands of siding resulted in two different wood grains or textures being used, which does not comply with the specifications and the owner's wishes. Moreover, the siding was installed in some places with the butt joints of two siding boards joining at a location other than over a wall stud, making for a weak improperly supported joint between siding boards. Because of this the nail pattern for the siding was somewhat incorrect as well. Metal Roofing: The metal roofing system employed on the house is Semco 5-V-Crimp manufactured by Southeastern Metals of Jacksonville, Florida. A complete, detailed manual for the product is part of the permit file. Absent specific standards in the building code, the manufacturer specifications govern the installation of the product and establish guidelines for inspection by the local officials. The cursory visual inspection by Mr. Abbott showed that the eave and valley connections and flashings at various penetrations are not as specified in the plans. Mr. Abbott established that the installation technique employed was shoddy and of poor quality, as evidenced by crowned and warped panels, potentially insecure flashing, and ill-fitted twisted crowned caps. Mr. Abbott opined that the sub-standard installation of the metal roof had not been subjected to a proper inspection and that the roof presented a potential danger to the property as constructed. Finally, the chimney construction also represented a structural defect, as well as a deviation from the plans, as described above, and for the same reasons as described in the above findings of fact also constituted a structural defect. The flue could easily be moved by light-hand pressure and was not braced to resist wind loads that might occur. In summary, the Respondent has evidenced a lack of due care and a failure to act in a manner consistent with a reasonable standard of practice in the above-found defective particulars, although, not all the allegations and related opinions of the Petitioner's expert witnesses were established. Moreover, there is no doubt based on the evidence of record, including the Respondent's testimony, that the Levy County Building Department performed the required inspections up until the time work ceased (hence no final inspection) and either missed or ignored certain of the defects which should have been readily apparent, such as the roof. The construction defects resulted in a home that can not, as built, be an entirely safe structure. It was not constructed in conformity with the applicable building codes, to the extent that it was completed before work was ordered stopped by the owner. Although the Respondent freely offered to correct the defects, if allowed to come on the premises to do so, the fact remains that the above- found defects were established and committed. During the course of this dispute, before the formal hearing, a civil action concerning the dispute, was filed by the owner against the Respondent. That action went to a mediation process, the result of which was, in part, that the Respondent agreed to purchase the home from the owner, the complaining witness Ms. Clifton.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a final order be entered by the Construction Industry Licensing Board finding the Respondent guilty of violating the above-referenced statutory provisions in the particulars found above; that the Respondent be required to pay investigative costs for this proceeding and an administrative fine in the amount of $1,500; and that the Respondent be placed on probation for a term to be determined by the Construction Industry Licensing Board. It is also recommended that the Respondent be required to pay restitution to Ms. Clifton for the cost required to repair the above-found defects or, alternatively, that he be required to repair the defects at his own expense, or thirdly, that he purchase the home from Ms. Clifton within 90 days of the entry of a final order herein. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 8th day of March, 2002. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Joseph Lander, Esquire Post Office Box 2007 Cross City, Florida 32628 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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
