The Issue The Florida Construction Industry Licensing Board, Petitioner herein, seeks to revoke the general contractor's license of Roy G. Runken, Respondent herein, based on allegations set forth in specific detail hereinafter, that he (Respondent) engaged in acts and/or conduct violative of the Code of Metropolitan Dade County, Chapter 10, Sections 10-22(a)(g), which amount to specific violations of Chapter 468.112(2)(a) and (e). Based on the entire record compiled herein including the demeanor of the witnesses while testifying, I make the following:
Findings Of Fact Roy G. Runken (Respondent) holds certified general contractor's license no. CGC002558 which is presently current and inactive. On September 21, 1973, Respondent, d/b/a Triple "R" Construction entered into a contract with Mrs. Lydia E. Walker to build a funeral home at 11000 SW 216th Street, Goulds, Florida. Mrs. Walker applied for and secured a construction mortgage loan from the First National Bank of Homestead, Florida, in the amount of $105,000. She additionally deposited $7,000 of her funds into the construction draw account of which approximately $103,701.55 was withdrawn either by Respondent or by the bank to satisfy bills which were paid directly to suppliers by the bank. When construction was completed, the entire funds available in the construction draw account were exhausted plus an additional $600. which was paid by the owner (Mrs. Walker). (Testimony of Shirley Pluto, Vice President and senior loan officer of First National Bank of Homestead) Mrs. Walker testified and indicated that she met Respondent through one of his former employees who had served as a building code inspector. She testified that she entered the construction agreement with Respondent because she was desirous of obtaining quality construction work and Respondent enjoyed a good reputation in the community as a quality builder. The proposal submitted to the bank by Respondent and Mrs. Walker contained an agreed upon contract price of $114,500. A later executed agreement contained an amount of $72,980. (See Petitioner's Exhibits 4 and 5). Sometime during May, 1974, Respondent advised Mrs. Walker that his National Guard company was being reactivated and that he was leaving the area. Fred Runken, Respondent's son, took over the project and Respondent advised Mrs. Walker that his son (Fred) was as qualified as he. (Testimony of Mrs. Walker). She learned approximately one year later that Respondent's son was not "qualified". During the course of the construction, Mrs. Walker voiced numerous complaints concerning the quality and progress of the construction. (See Petitioner's Composite Exhibit 7). As an aside, it was noted that Mrs. Walker received a judgement from Respondent in the amount of $25,000 plus costs. (See Petitioner's Exhibit 8). During April, 1974, Respondent was issued a permit to construct the funeral home for Mrs. Walker. On May 6, 1974, the foundation was poured without incident. During July, 1974, the Dade County Area encountered a steel strike which created a problem for Respondent in obtaining "bar joists". During the construction of the funeral home, Respondent's son served as job foreman under the supervision of two licensed certified general contractors (Messrs. Benton and Habday [phonetic]). The evidence reveals that the plan as submitted by Mrs. Walker had to be modified in several aspects including joist beams, store front plans, all of which had to be revised by an architect. Respondent expressed difficulties with Mrs. Walker respecting allowances and selections and that when selections were made by Mrs. Walker, she failed to diligently pursue which in some instances resulted in price increases. He further testified to changes in brick work, cabinetry and the air conditioning systems. Additionally, the evidence reveals that all liens and/or notice of intent to file liens were satisfied. As best a can be determined by the record herein, it appears that Mrs. Walker only paid an additional $600 over and above the agreed upon price which in terms of the changes submitted to Respondent, would appear to be minimal. Moreover, it is uncontroverted that the contractor was forced from the building before construction was completed and that all draws were made per agreement with Mrs. Walker and the bank. Finally, there was no testimony or evidence of any municipal code violations. 1/ Based on the foregoing, I shall conclude and recommend that insufficient evidence was offered to establish that the Respondent engaged in any acts and/or conduct violative of Chapter 10 of the Code of Metropolitan Dade County or Chapter 468, Florida Statutes, as alleged.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 10th day of February, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact At all times material hereto, Respondent was the holder of general contractor's license number CG C007235, and certified residential contractor's license number CR C006769. On or about January 6, 1976, Respondent entered into a Building Agreement with Walter and Ellen Scott (hereinafter "owners") for construction of a residence to be located at 10244 Deerwood Club Road in Jacksonville, Duval County, Florida. Among the provisions contained in this agreement was the following: [Respondent] will construct house for actual Construction Costs plus $10,000 profit. Addendum to contract Number 19 contains construction estimate sheet and allowance sheet which is guaranteed by [Respondent] not to exceed $85,000, plus $10,000 profit. All construction costs above $85,000 will be absorbed by contractor resulting from faulty workmanship or incorrect overall estimate. Additional costs resulting from exceeding allowances or phases not covered by estimate, (Wallpaper, Light fixtures, etc.), will be paid by purchaser. [Respondent] will be compensated at $2,500.00 out of each of the last four construction draws. Purchaser will be refunded in difference of construction under $85,000.00. Purchaser has the right to examine cost of construction at any stage to determine how close cost [sic] are running to estimate. (Emphasis added.) In addition, the Building Agreement contains a listing of allowances for various items such as carpet, flooring, wallpaper, doors, fireplaces, appliances, plumbing fixtures, wiring and windows. These provisions of the contract deal with standard items to be included in the construction, absent some request and agreement between the parties to specific changes. With respect to changes, the agreement provides specifically that: Should the Purchaser at any time during the progress of said residence require any alterations to or deviations from, additions to, or omissions, in said Agreement, which are acceptable to the Contractor, they shall have the right and power to make such change or changes when practicable, and the same shall in no way make void the Agreement; but the differences shall be added to, or deducted from the amount of the Agreement as the case may be, by a fair and reasonable evaluation . . . (emphasis added.) Finally, the Building Agreement also provides that Respondent was to use his best effort to deliver the completed residence on or about 180 days from the start of construction, which, by terms of the agreement, is defined as the date on which footings are poured or the day rough plumbing was begun. Although Respondent obtained a building permit for construction of the residence, from the City of Jacksonville, Florida, dated February 5, 1976, there is nothing in the record of this proceeding on which a firm determination can be made as to when construction actually started. Although the actual starting date for construction is unclear, it is obvious from the record that Respondent and the owners began to experience problems from the outset. The owners received a notice of lien soon after the slab for the residence was poured. In addition, there appears to have been some miscalculation with respect to the size of the slab for the structure to which some additions had to be made. Respondent apparently failed to pay for the initial treatment for subterranean termites at the time of the pouring of the slab, and the termite bond on the residence was cancelled. In addition, the slab appears to have been poured in such a fashion as to require adjustments in the construction of the driveway to avoid rainwater runoff entering the residence. One of the more difficult problems in the initial stages of construction involved leaks in the roof of the structure. When it appeared that efforts to repair the leaks had not been entirely successful, the owners requested that Respondent delay work on the interior in order that repairs on the roof might be accomplished before proceeding in order to avoid interior damage. After an extended delay occasioned by an unusual period of dry weather which prevented a determination as to whether the roof would continue to leak, work on the interior was recommenced, only to discover that the roof had not been sufficiently repaired. As a result of continuing problems with the roof, work which had been completed in the interior of the structure was damaged by rainwater. In fact, as of the date of final hearing in this cause, it appears that final repairs to the roof had still not been accomplished. It appears from the record that construction delays attributable to roof leaks in the residence set the tone for the remainder of the business dealings between Respondent and the owners. From this point forward, the relationship between Respondent and the owners became virtually adversary in tone. This state of affairs was complicated by an extensive series of changes or substitutions in the original plans and specifications by the owners. As indicated above, the original Building Agreement contained provisions concerning allowances for various portions of the work, and optional items which could be added at additional charge to the owner. Unfortunately, the record is unclear as to exact dollar amounts attributable to extras selected by the owners, as well as to amounts actually received by Respondent in the course of construction draws on the original contract. However, it is clear that extras selected by the owners totalled between $20,000 and $25,000. These items, which were not contained in the original contract, included ceramic tile flooring; double oven; wooden window frames; extensive extra bricking work, including brick more expensive than that described in the original contract; a larger driveway; burglar alarms; simulated marble vanities, tubs and sinks instead of cast iron fixtures as originally contemplated; crown moldings and interior door moldings throughout the interior of the residence; more expensive plumbing fixtures; extensive parquet flooring; larger closet areas; and extensive changes in the location of plumbing fixtures and electrical outlets. In addition, what appears from the evidence to have been a handmade stairway was substituted at an additional cost of approximately $5,000. The construction of the staircase not only included additional expense, but for some reason not entirely apparent from the record, caused additional delay in construction of other areas in the residence. Respondent apparently did not maintain a separate checking account for construction draws on this project, instead comingling disbursements on the construction loan with other funds in his general checking account. Additionally, no documentation was submitted by either Petitioner or Respondent to establish dates on which draw requests were either submitted by Respondent to the owners or the financial institution financing construction, or the dates on which any such draw requests were funded, either in whole or in part. As a result, it is virtually impossible from the record in this proceeding to determine the basis for disbursements from the construction loan account, or the disposition of those sums once disbursed. Although there was some general testimony about the filing of liens by various subcontractors, no documentation of these liens was submitted into evidence. What is, however, apparent from the record is that in early 1977, almost one year after initial disbursement of construction funds to Respondent, almost the entire $95,000 constituting the construction account was depleted. At that time the residence was approximately 90 percent complete. Thereafter, by Agreement dated February 18, 1977, Respondent and owners agreed that an additional $25,000 would be necessary to complete construction of the residence. Respondent acknowledged that he was in default under the terms of the original Building Agreement, and agreed to reimburse owners for the additional $25,000 needed to complete construction of the residence, subject to certain adjustments. Respondent agreed to complete construction of the residence within 40 days, and further agreed that the financial institution holding the mortgage on the residence was authorized to disburse the additional $25,000 directly to subcontractors, materialmen and laborers for work performed for services rendered on the property. Respondent executed a note in the amount of $25,000, secured by certain property belonging to him as evidence of his obligation to complete construction. However, shortly after execution of the February, 1977, Agreement, Respondent and owners had a dispute over payment of certain laborers. As a result, Respondent was advised by owners not to return to the job site. After this notification, evidence in the record establishes that Respondent contacted the financial institution which held the mortgage on the property and advised them that he would not be completing construction of the residence. It is clear from the record that the owners had more than ample cause for dissatisfaction with both the quality of workmanship and the timeliness with which work was performed by Respondent. Those matters are not, however, at issue in this proceeding. It is also abundantly clear that both Respondent and owners conducted their dealings with one another in a most informal fashion. With the exception of the original Building Agreement, and the February, 1977, agreement, most of the dealings between Respondent and the owners were verbal. Additionally, the absence of detailed documentary evidence makes resolution of many of the factual disputes in this proceeding difficult at best. However, the record clearly establishes that Petitioner failed to request that official notice be taken of any of the provisions of the building codes or other laws of the City of Jacksonville, and that none of these codes or laws were offered into evidence in this proceeding. As a result, a motion to dismiss that portion of the Administrative Complaint alleging violation of applicable building codes was granted by the Hearing Officer at the close of Petitioner's case. Further, although the owner testified as to his belief that certain building materials were "floating" between the project which is the subject of this proceeding and other projects being constructed by Respondent, there is no direct evidence to establish that Respondent, in fact, diverted any funds or property improperly. Finally, as to the question of abandonment, it appears from the record that the owner dismissed the Respondent prior to the expiration of the 40-day period contemplated in the February, 1977, Agreement, and that Respondent advised both the owner and the financial institution financing construction of the project that he would not complete construction of the residence as contemplated in the various agreements between the parties.
The Issue The issue for determination is whether Respondent negligently practiced engineering in the preparation of construction plans for a residential structure and airplane hanger.
Findings Of Fact At all times pertinent to these matters, Respondent has been a licensed engineer in the State of Florida, having been issued license number PE 37862. Respondent is the engineer of record for the residential and airplane hanger project (Rutman project). On Sheet 6 of 8 of the drawings prepared for the Rutman project, Respondent failed to reference sections or details found in the plan for the project. Specifically, Sheet 6 indicates the floor truss layout for the ground and second floors, but fails to indicate what the framing members are supported upon, a very significant fact, in that one who is reading the plan would not be instructed in how to construct that portion of the work. On Sheet 5 of 8, which indicates the layout of the framing members of the roof, no specific information is provided showing how to construct, support or connect the members and no reference is made to any other parts of the plans. Respondent's drawings fail to specify or indicate anywhere on the plans the proper reinforcing for the masonry column. On Sheet 2 of 2 - Hanger, and on Sheet 1 of 3 - Floor Plan, Respondent has called for a 24-inch by 24-inch reinforced masonry column that supports a W24 x 55 Steel I-beam that is 48 feet 8 inch long. There is no specification for column ties, which are reinforcing bar loops that are to be placed around the vertical steel within a column, as required by the American Concrete Institute's Code (ACI) provision 530. ACI 530 is used by all engineers in Florida that design masonry columns. These technical codes for concrete have been provided by ACI since 1904. ACI 530, Section 5.9.1.6(a), relating to lateral ties, provides that longitudinal reinforcement shall be enclosed by lateral ties at least 1/4 inch in diameter. Respondent's drawings fail to provide the required lateral ties. According to ACI 530, Section 5.9.1.4, vertical column reinforcement must not be less than .0025 times the nominal area of the column or approximately 1.44 square inches of steel. Respondent's drawing provides only 1.24 square inches of steel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Professional Engineers enter a final order reprimanding Respondent for negligence in this matter, and placing him on probation for a period of two years. DONE AND ENTERED this 28th day of October, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 28th day of October, 2003. COPIES FURNISHED: David P. Rankin, Esquire The Law Offices of David P. Rankin, P.A. 14502 North Dale Mabry Boulevard, Suite 300 Tampa, Florida 33618 Douglas Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Nancy Campiglia, General Counsel Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulations 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267
Findings Of Fact At all times material to these proceedings, Respondent Farrall was licensed as a certified general contractor in Florida, and held license number CG C040234. In addition, the Respondent was licensed as a certified roofing contractor and held license number CC C024398. Mr. Farrall was the qualifying agent for Sunmaster Roofing Company. On May 25, 1987, Sunmaster Roofing Company entered into a contract with Clarence A. Miller and Emily Miller to reroof their residence in Naples, Florida. After the project was completed, Mr. and Mr. Miller filed a complaint with the Collier County Contractors' Licensing Board on December 7, 1987. Essentially, the complaint alleged as follows: 1) that the contractor abandoned the job without adequately completing construction; 2) that the roof materials were incorrectly installed; 3) that the contractor failed to obtain a building permit; and 4) that the contractor failed to adequately perform the contract due to his failure to correct faulty workmanship on the job. On December 11, 1987, copies of the complaint and a notice of hearing was sent to Respondent Farrall by certified mail to two different addresses. The items were promptly received at both locations. On January 15, 1988, the Respondent acknowledged that he was personally aware of the hearing scheduled for January 20, 1988. The Respondent requested a continuance until after January 29, 1988, because he had to attend to urgent family matters which required his presence in Canada. A continuance was not granted, and the hearing proceeded as scheduled. The Respondent was aware that the hearing was not continued prior to his departure for Canada. On January 20, 1988, a hearing was held, and the local board received evidence regarding the Miller complaint. As a result of the hearing, the local board found that the Respondent violated specific county ordinances in the following manner: by abandoning the job without legal excuse; disregarding or violating the building code by failing to obtain a building permit; and by failing to make good, faulty workmanship obviously performed in evasion of performance of the contract. The Respondent was disciplined by the Collier County Contractors' Licensing Board on January 20, 1988. His permit privileges were suspended in Collier County until the contractor makes restitution and appears before the Board for reinstatement. The Respondent was given fifteen days to appeal the decision. The Respondent personally received a copy of the disposition of the hearing by certified mail on January 28, 1988. An appeal was not taken of the decision.
Recommendation Based upon the foregoing, it is recommended that the charges set forth in the Administrative Complaint against the Respondent, John W. Farrall, in Case No. 89-3291 be DISMISSED. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3291 The proposed findings of fact set forth in Petitioner's proposed recommended order are addressed as follows: 1. Accepted. See HO #1. 2. Accepted. See HO #2. 3. Accepted. See HO #1 and #2 4. Accepted. See HO #8 and #9. 5. Accepted. See HO #8. Rejected. Irrelevant to the charges filed. Rejected. Irrelevant to the charges filed. The proposed findings of fact filed by the Respondent are addressed as follows: Accept the first two sentences. See HO #1. The rest of paragraph 1 is rejected as improper argument which is not based upon material evidence presented at hearing. Accepted. See HO #2. Rejected. The issue in this proceeding involves the discipline by the local government board and not the underlying facts upon which the board based its findings. Immaterial. 4. Rejected. Immaterial. See above. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Irrelevant. Rejected. Rejected. Irrelevant. Irrelevant. Rejected. Rejected. Rejected. Irrelevant. Irrelevant. Contrary to fact. See HO #6. Rejected. Rejected. Contrary to Irrelevant. fact. See HO #9. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 John W. Farrall 316-2 Tudor Drive Cape Coral, Florida 33904 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
