The Issue Whether Petitioner is entitled to attorneys? fees and costs as a prevailing small business party pursuant to section 57.111, Florida Statutes, and if so, in what amount.
Findings Of Fact On or about January 14, 2011, an application to construct a swimming pool and spa with screen enclosure was filed with the City of Deland by Bill Coody Custom Pools (Coody), a construction contractor. The application was reviewed by Mr. Joe Crum, a Deland building official involved with construction permit approval. Mr. Crum rejected the application because the design criteria and details for the design of the screen enclosure appeared to constitute a master design manual, but did not indicate that the documents had been peer-reviewed and did not indicate the required training for users of the manual. A master design manual is a generic engineering package prepared by a licensed engineer or architect, which provides engineering guidance for construction when used along with a contractor?s own site-specific design drawing. The documents submitted to Mr. Crum included generic load and span tables for various framing elements and generic construction details for screen enclosures, and appeared to leave selection of various elements to contractors depending on the site-specific design. The documents had been provided to Coody by Mr. Frank Cleaton, P.E. Mr. Crum contacted Mr. Cleaton on or about January 24, 2011, about the failure of the documents to meet the requirements for master-design-manual engineering. After Mr. Crum?s inquiry, Mr. Cleaton prepared a letter dated January 26, 2011, authorizing Coody to use “my sealed engineering set of design criteria and details for the design of aluminum structures.” The letter further provided in relevant part: In accordance with Florida Statute 489.113(9), this sealed engineering set is intended to be used as a reference in conjunction with the contractor?s own site- specific design drawing. The contractor?s drawing is not required to be sealed by me as the engineer of record as per FS 489.113(9). It is only required to be in compliance with what is set forth in my sealed design set. Design documents for the 135 Birchmont Drive screen enclosure were also signed and sealed by Mr. Cleaton on January 26, 2011, after the inquiry from Mr. Crum. These included only one site- specific document. All other drawings contained the same generic load and span tables, with some elements of those tables circled or otherwise identified for incorporation into the Birchmont structure. The site-specific drawings for the Birchmont screen enclosure were submitted with a permit application filed by Coody. According to the drawings of the Birchmont screen enclosure, the structure is less than 1,200 square feet in area and less than one story in height. The Florida Engineers Management Corporation (FEMC) provides administrative, investigative, and prosecutorial services to the Board of Professional Engineers. On or about February 9, 2011, FEMC received an e-mail from Mr. Crum alleging that Davis and Cleaton Engineering was providing a master design manual for aluminum structures that did not meet statutory requirements for the use of master design manuals. The following day, Ms. Wendy Anderson,1/ an investigator for FEMC, requested additional information from Mr. Crum. On or about February 11, 2011, at about 11:47 a.m., FEMC received an e-mail from Mr. Crum referencing "improper master file engineering." Attached to the e-mail was a copy of the permit application package for the screen enclosure located at 135 Birchmont Drive, Deland, Florida, that had been submitted to the Deland Building Department by Coody. The permit application package included documents signed and sealed by Frank Cleaton, P.E. The documents provided to FEMC by Mr. Crum did not identify any third-party peer reviewer or detail the training requirements for those using the manual. The determination that there was enough information to open an investigation was made by Ms. Anderson in consultation with the FEMC prosecutor, Mr. John Rimes. FEMC had reasonable cause to believe that Mr. Cleaton had violated section 489.113(9), Florida Statutes (2010), based upon the e-mails from Mr. Crum and the documents he provided. After receiving the copy of the "file with the improper master engineering," Ms. Anderson opened a Complaint File with FEMC, Case No. 2011007349. On March 22, 2011, Ms. Anderson provided notice of the investigation to Mr. Cleaton. The only formal pre-Probable Cause Panel notification given to Mr. Cleaton of any pending complaint regarding the design for the Birchmont project was the letter sent on March 22, 2011. The March 22, 2011, letter from Ms. Anderson advised Mr. Cleaton that he had the option to submit a written response to the complaint for consideration by legal staff and the Probable Cause Panel (PCP) of the Board. It also advised him that he could submit a written request for a copy of the investigative file that would be provided to him once the investigation was complete. Mr. Cleaton never requested that he be provided a copy of the investigative file. A letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson was received by FEMC on or about April 11, 2011. The letter stated that Mr. Cleaton had “clearly and specifically told the building department” that the package was not to be considered a master design manual. The response also stated that a “signed and sealed drawing” had been provided “as if it were” a site-specific project. The letter concluded by saying that no further “packages” would be issued until the matter was resolved, and that if necessary, Mr. Cleaton would “participate in a peer review.” The construction documents that had been given to Coody appeared to be a master design manual to the Deland building officials, FEMC staff, and later to members of the PCP. Mr. Joseph Berryman is a licensed professional engineer experienced in the design and analysis of commercial and industrial structures. Mr. Berryman has never supervised construction or conducted a final inspection of an aluminum patio shelter or screen enclosure. Mr. Berryman is an expert in structural engineering. He was well known to the members of the PCP as a consulting expert for the Board. He had rendered expert opinions to the Board in several recent license discipline proceedings involving aluminum screen enclosures. At Ms. Anderson?s request, Mr. Berryman reviewed the e-mail correspondence from Mr. Crum to FEMC, the correspondence from Mr. Crum to Coody, the January 26, 2011, authorization letter from Mr. Cleaton for Coody, the two-page permit application, and a one-page drawing showing the framing plan and elevations for the Birchmont screen enclosure. In a letter to Mr. Rimes dated April 15, 2011, Mr. Berryman concluded that the statements in the Coody authorization letter were consistent with the definition of master design manual system as addressed by section 489.113(9). He further concluded that if Mr. Cleaton wanted to continue to utilize a master design manual, he would need to obtain peer review and comply with the other requirements set forth in that statute. On or about May 31, 2011, Mr. Crum sent an e-mail to Ms. Anderson with an attached copy of an unsigned Uniform Complaint Form, which is utilized by the Board to document complaints. The e-mail stated that Mr. Crum thought he had sent the complaint form earlier, but then realized he had not done so. The e-mail asked if FEMC needed him to fax another copy of the Uniform Complaint Form with his signature on it. The complaint form outlined Mr. Crum?s earlier allegation that Mr. Cleaton was providing a master design manual for aluminum structures that did not meet the third-party peer review or training requirements of section 489.133(9), Florida Statutes. There was no evidence that FEMC ever contacted Mr. Crum in response to his inquiry about the need for another copy of the complaint form with his signature. Mr. Crum never provided a signed copy of his complaint to FEMC. There was no evidence of any prejudice to Mr. Cleaton resulting from the fact that the complaint was not signed. In light of Mr. Cleaton?s April 11, 2011, representation to FEMC that the documents were not being utilized as a master design manual, FEMC decided to “take him at his word” and consider the documents to have been prepared as signed and sealed engineering for a site-specific project. FEMC staff decided to investigate the engineering in the documents that had been provided to them, and asked Mr. Berryman to review them as part of the investigation. FEMC had no reasonable cause to believe that there was anything wrong with the engineering contained in the documents for the screen enclosure. Ms. Anderson did testify that, in her experience, a high percentage of construction plans for aluminum screen enclosures contained engineering flaws, but she was not familiar with either Mr. Cleaton or the Birchmont structure and did not have any information suggesting that these particular engineering documents were deficient. FEMC?s decision to investigate the engineering contained in the documents that had been given to them in connection with the complaint did not initiate a new investigation, but instead continued the investigation that had already begun, albeit taking that investigation in a new direction. Mr. Cleaton was not informed by FEMC of this change in the direction of the investigation. Mr. Berryman completed calculations for his review of the construction plans for the screen enclosure prior to June 20, 2011, but he did not provide a copy of those calculations with his report. In a letter addressed to Mr. Rimes dated June 20, 2011, Mr. Berryman identified various omissions of required information as well as flaws in the engineering designs and design assumptions contained in the construction documents, including the identification of several overstressed elements and violations of the Florida Building Code (FBC or the Code). Mr. Berryman concluded that, “As indicated above, Mr. Cleaton has failed to utilize due care in performing in an engineering capacity and has failed to have due regard for acceptable standards of engineering principles.” The June 20, 2011, report from Mr. Berryman was a competently prepared and adequately sourced engineering opinion. Any procedural errors or irregularities in the investigative stage did not impair Petitioner?s defense. Based substantially upon Mr. Berryman?s report, a proposed Administrative Complaint was prepared. Four counts alleged that the engineering documents for the Birchmont structure failed to include required information (counts 4A through 4D); three counts alleged that specific elements used in the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4E through 4G), alleging, for example, that the “2x5 SMB roof beam elements of the subject structure are significantly overstressed at 2007 FBC (Table 2002.4) prescribed design loading”; four counts alleged elements in column and beam schedules that were not utilized for the Birchmont structure were overstressed at 2007 FBC prescribed design loading (counts 4H, 4J, 4L, and 4M); two counts alleged that elements contained in column and beam schedules, only some of which were used in the Birchmont Structure, were overstressed at 2007 FBC prescribed design loading (counts 4I and 4K); and the two remaining counts (4N and 4O) contained generic allegations that the elements of the screen enclosure and the elements in the span tables were not engineered in accordance with the strength requirements of the 2007 FBC. On September 20, 2011, the PCP of the Board of Professional Engineers found probable cause to charge Mr. Cleaton with violating section 471.033(l)(g), Florida Statutes, by being negligent in the practice of engineering. The transcript of the probable cause proceeding shows that Mr. Rimes summarized the case for the members of the PCP and that they did not discuss the allegations prior to their vote finding probable cause. Mr. Rimes incorrectly stated that FEMC had received a complaint with regard to the quality of the work. Each member indicated that he had thoroughly read and reviewed the materials provided prior to the meeting. The transcript also shows some discussion of the facts of the case, but only after the vote. Mr. Rebane?s questions showed that he was aware that at different times during the investigation, issues regarding both master design omissions and deficient engineering in the signed and sealed engineering documents had been considered. Mr. Hahn?s comments showed he was aware that Petitioner had asserted that the drawings were signed and sealed documents for the Birchmont structure and even indicated that he believed Petitioner “made things worse for himself” by doing so. The members of the PCP were generally familiar with the extensive materials that were provided to them, the details of the case, and Mr. Berryman?s opinion. The PCP had previously been provided copies of the Issue Analysis and Staff Recommendation; the Investigative Report; the letter from Mr. Crum to Coody regarding the plans for the Birchmont screen enclosure; several e-mails between Ms. Anderson and others, including Mr. Crum, Mr. Rimes, and Mr. Cleaton; the authorization letter for Coody from Mr. Cleaton; the Application for Permit submitted for the Birchmont structure to the City of Deland; the engineering drawings for the structure; the letter dated March 31, 2011, from Mr. Cleaton to Ms. Anderson in response to the original complaint; the April 15, 2011, opinion letter from Mr. Berryman to Mr. Rimes, but without the second page; the unsigned Uniform Complaint Form submitted by Mr. Crum on or about May 31, 2011; the second opinion letter from Mr. Berryman to Mr. Rimes, dated June 20, 2011; and a draft of the proposed Administrative Complaint. The missing second page from the April 15, 2011, opinion letter continued a list of the documents that had been reviewed by Mr. Berryman, set forth the allegations made by Mr. Crum, and contained the following statement: “The problem at the building department was apparently resolved by the submittal of signed and sealed site-specific engineering for the project by Mr. Cleaton.” The missing page did not contain Mr. Berryman?s opinion and contained no information contradictory to the conclusions in the opinion letter. While Petitioner argues that the above-quoted sentence dispelled “any scintilla of justification” for the investigation, this conclusion is rejected. In fact, notwithstanding Mr. Cleaton?s statement to the building department that the documentation was not to be considered a master design manual, the opinion letter goes on to conclude that this statement of Mr. Cleaton?s was inconsistent with other statements he made and that the documents fail to include elements required by section 489.113(9). The absence of the missing page was not a material flaw in the probable cause proceedings. First, the two pages that were provided to the PCP accurately represented the entire opinion letter. Second, the April 15, 2011, opinion letter addressed Mr. Crum?s original allegations as to the failure to comply with the requirements of section 489.113(9), relating to master design manuals, which was not the ultimate basis for the Administrative Complaint. It was Mr. Berryman?s subsequent opinion letter dated June 20, 2011, also provided to the PCP, which provided the basis for the Administrative Complaint. Mr. Berryman?s calculations were not included among the materials given to the PCP. An Administrative Complaint reflecting the September 20, 2011, findings of the PCP was issued on September 30, 2011, and was subsequently served upon Mr. Cleaton. The Administrative Complaint was styled “Florida Board of Professional Engineers v. Frank Cleaton, P.E.” It was accompanied by an Election of Rights form, headed with “State of Florida, Florida Engineers Management Corporation,” advising Mr. Cleaton of his right to request an informal or formal hearing within 21 days of receipt of the Administrative Complaint. The complaint was filed by FEMC on behalf of the Board. The Department of Business and Professional Regulation (the Department) played no active role in the investigation or prosecution of the case. FEMC did not notify the Deland Building Department or the owner of the screen enclosure of its finding of "17 serious material deficiencies." Pursuant to Mr. Cleaton?s demand, an evidentiary hearing under sections 120.569 and 120.57(1), Florida Statutes, was scheduled to be heard on September 25, 2012. On or about March 2, 2012, Mr. Berryman submitted to FEMC the calculations he had performed prior to his June 20, 2011, opinion letter to FEMC, so that they could provided to Petitioner. Mr. Cleaton?s expert, Mr. Thomas Campbell, submitted a report dated September 12, 2012, which was provided to FEMC the following day. Mr. Campbell concluded that the Birchmont screen enclosure plans met the “evolving” FBC (2007-2010)2/ and the Aluminum Design Manual (2005). He concluded the screen enclosure was adequately built and safe. His report asserted that any errors in the engineering tables that were not actually used in constructing the Birchmont structure should be considered irrelevant. The report stated that all maximum member moments were “well below allowable” and all member interaction ratios (axial and bending) were well below 1.0, with one exception. The 2 x 2 section exceeded that ratio by less than 9 percent and was in tension. The report concluded that this was well within the acceptable range for the conservative evaluation that was conducted. Mr. Berryman reviewed Mr. Campbell?s report and concluded that his analysis failed to determine allowable stresses for the aluminum framing members in accordance with the 2005 Aluminum Design Manual, as was required by the FBC. Mr. Berryman found that Mr. Campbell?s opinions did not comply with accepted engineering practice and that his analyses were unreliable and replete with errors. However, Mr. Berryman also examined some load test results for self-mating beams that had been prepared for “Aluminum Enclosures Suppliers Council” and “Town and Country Industries, Inc.,” aluminum manufacturing companies in the State of Florida, which had been supplied along with Mr. Campbell?s opinion. These test results were proprietary information that was not available to Mr. Berryman prior to Mr. Campbell?s report. While these data were incomplete and had not been verified by industry professionals and regulatory authorities, Mr. Berryman concluded that they suggested at least the possibility of an alternate method of determining allowable stresses that might be helpful to Mr. Cleaton?s designs. Although the data in the test reports diverged from the design methodology described as acceptable in the FBC, the Code allows some departures from these standards when an alternative analysis has been reasonably justified. Mr. Berryman therefore recommended that many of the charges in the Administrative Complaint should not be pursued until the proprietary data could be validated or invalidated. On September 21, 2012, Respondent filed an unopposed Motion to Cancel Hearing, Relinquish Jurisdiction and Close File. An Order Closing File was issued by the administrative law judge on September 21, 2012. On September 27, 2012, Respondent filed a Motion to Dismiss Administrative Complaint and Close File with the Board. Petitioner did not respond to the Motion. On November 7, 2012, the Board entered its Final Order dismissing the Administrative Complaint filed against Petitioner. Mr. Cleaton is a prevailing small business party within the meaning of section 57.111, Florida Statutes. On November 9, 2012, Petitioner filed a Motion for Attorney Fees and Costs with DOAH seeking attorneys' fees and costs under the provisions of section 57.111. Mr. Cleaton incurred attorneys? fees and costs in defending his license against the Administrative Complaint initiated by the Board. Attorneys? fees in the amounts of $11,456.25 for Sheppard, White, and Kachergus, P.A., and $30,247.50 for McCabe Law Group, P.A., are reasonable. Mr. Cleaton retained the services of Mr. Campbell to be his expert witness. Mr. Campbell in turn enlisted the services of NuVision, an engineering company he owns, to assist in preparations for his testimony. Mr. Campbell is an expert in structural engineering. Mr. Campbell and NuVision are based in Pennsylvania. The claimed expert witness fees of $48,037 are excessive. This amount reflected some 176 hours spent by three engineers, 16 hours for their administrative support, and $22 for travel expended at NuVision, as well as an additional 65 hours of time spent by Mr. Campbell, 30 hours of administrative support for him, and $715 in travel spent by Mr. Campbell?s firm, TEC Enterprises. Testimony offered by Mr. Campbell indicated that the claimed hours represented only about half of those actually expended, and that none of the claimed costs were for time spent in learning specific requirements unique to Florida, such as the FBC. A reasonable cost for Petitioner?s expert witness was $15,000. Mr. Berryman credibly testified that 100 hours of time would have been ample for the engineering work; that $250 per hour for a supervising engineer, $200 per hour for a senior engineer, and no more than $100 per hour for an entry-level engineer were reasonable rates; and that senior engineers were not required to do the necessary calculations. Allocating 25 hours to Mr. Campbell as supervising engineer and 75 hours for entry-level engineers to make the calculations, and applying the hourly rates mentioned in this paragraph would be reasonable. Adding another 5 hours of Mr. Campbell?s time at the supervising engineer rate for the final preparation of his testimony and actual hours at the deposition is reasonable. No special circumstances exist that would make an award of fees and costs unjust. The documentation provided to the PCP was not misleading, was not missing critical information, and contained required allegations of fact. The PCP?s finding was supported by expert opinion and had a solid basis in law and fact. The PCP?s actions in directing the filing of an Administrative Complaint were substantially justified.
Findings Of Fact Gary Smith d/b/a Sirmons Roofing Company is a roofing contractor registered with the Florida Construction Industry Licensing Board. Smith does not hold any license issued by local construction licensing boards which does not license roofing contractors. Smith admitted that he had commenced construction projects without acquiring the appropriate building permits from the local building officials. Calvin Smith identified a contract, Exhibit 2, which he had entered into with Gary Smith d/b/a Sirmons Roofing regarding the repair of the roof of his house. This contract called for the replacement of bad wood, which was understood by the parties to refer to rotten wood planking and rafters. Calvin Smith stated that after construction commenced and the old roof had been removed, his house had suffered rain damage although Gary Smith had advised him that the roof had been dried in. Gary Smith explained that he had in fact laid the requisite felt paper on the roof but that a severe wind and rain storm and occurred immediately following which had destroyed the felt paper. Smith stated that a crew was on the job during the storm at all times trying to keep the felt nailed down and maintain the water-tight integrity of the roof. There were no delays following the removal of the roof in replacing the felt and diligently proceeding with the re-roofing. Several days after the storm the roof had been finished, the plywood ceiling of the family room of Calvin Smith's house was partially removed to permit the insulation to be replaced. At this time Calvin Smith discovered rotten wood which Smith felt should have been removed and replaced by Gary Smith pursuant to their contract. Gary Smith stated that he had found one rotten rafter, but that he had advised Calvin Smith of the fact that it was there and that Calvin Smith realized that he was not replacing it. Gary Smith stated that he had removed and replaced all the rotten wood in the roof and that the rotten wood discovered by Calvin Smith was on that portion of the family room roof which was under the eaves of the pre-existing roof of the house where it could only be seen upon removal of the family room ceiling. Gary Smith further testified that subsequent to finding the rotten wood, Calvin Smith had not permitted him to correct the job and that he had not personally seen the rotten wood, pictures of which Calvin Smith had identified. Calvin Smith identified photographs of the interior and exterior of the roof as repaired by Gary Smith. These photographs were received as Exhibits 3 and 8. Exhibits 7 and 8 were photographs of the exterior of the roof. Exhibit 8 is a photograph of a shingle which was not properly installed. Gary Smith admitted that the shingle was not properly installed but stated that it would have been corrected prior to finishing the job. Exhibit 7 is a photograph showing a course of shingles which does not have the proper overlap. Gary Smith explained that this short run of shingles was necessary to even up or balance the runs on both sides of a hip in the roof because the distance from the eave to the top or peak of the hip was not the same on both sides. Gary Smith also pointed out that in both photographs the shingles are laid so that the bottom of the upper course of shingles comes to or overlaps the lower course of shingles to the top of the tab, causing good contact between the shingles and the adhesive strips. Contrary to the assertion of Calvin Smith that the shingles had been laid in such a manner that the adhesive strips did not touch. Calvin Smith had identified Exhibit 6 as photograph of roof flashing on the family room roof which he asserted was improperly installed. Gary Smith stated that the flashing in Exhibit 6 was installed in accordance with the manufacturer's recommendation and that the roof on the family room had the requisite number of layers of felt and tar as required by the building code. Gary Smith stated that he could not identify the purported location of the underside of the roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he could not identify the purported location of the underside of roof depicted in Exhibit 5 and identified by Calvin Smith as being in the middle of the family room. Gary Smith stated that he had shown the rotten beam indicated in Exhibit 4 to Calvin Smith and that Calvin Smith had known that he was not replacing the bean because replacement would have required the removal of the family room ceiling as well as the sheeting on the roof over the beam. Gary Smith stated that the wood shown in Exhibit 3 was not rotten but water stained and that the beam was sufficiently solid to hold the weight of the roofing materials on top of it and to nail the new sheeting into. Tommy Thompson, construction inspection supervisor of the City of Jacksonville, inspected the roof of Calvin Smith's home. Thompson found that the shingles had not been lapped properly, that some shingles had been laid so that the ceiling strips would not adhere properly, that rotten rafters and wood had been left, that the correct number of nails had not been placed in the shingles, that metal flashing around the chimney had not been installed in accordance with the manufacturer's specifications, and that one, twelve inch hold had been left in the roof sheeting. Thompson identified the Building Code of the City of Jacksonville and those portions of the code relating to installation of roofing materials. Thompson stated that the items mentioned in the paragraph above constituted violations of the code. Thompson also pointed out that it was a violation of the code to commence construction or repair of a roof without obtaining the requisite building permit. J. R. Bond, Executive Director of the Construction Trades Qualifying Board of the City of Jacksonville, stated that the board did not certify roofers. The ordinances of the City of Jacksonville empower the Construction Trades Qualifying Board to hear complaints against state registered but unlicensed contractors. However, the board lacks authority to take direct action against persons who are state registered but unlicensed. The board may only request that the city building official not issue the individual any further building permits. The building official must exercise his own independent authority and judgment in determining whether to suspend an individual's right to obtain building permits. The building official suspended Smith's privilege to obtain permits without a hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that Smith's registration as a roofing contractor be suspended for a period of one year. DONE and ORDERED this 3rd day of January, 1979, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Telephone: 904/488-9675 COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Tallahassee, Florida 32304 Gary A. Smith Sirmons Roofing Company 3845 Edidin Drive Jacksonville, Florida 32211 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. CASE NO.: 78-1780 GARY A. SMITH d/b/a SIMMONS ROOFING CO., RC 0030047, 3845 Edidin Drive, Jacksonville, Florida 32211, Respondent. /
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 to this proceeding Respondent was a registered building contractor in the State of Florida having been issued license number RB 0009164. At no time material to this proceeding was Domingo Alonzo (a/k/a Domingo Alonzo) registered, certified or otherwise licensed by the Florida Construction Industry Licensing Board. Respondent and Alonzo signed and submitted a proposal to Myron M. Gold and Roberta Fox for remodeling and additions to their residence located at 1550 Zuleta Avenue, Coral Gables, Florida in accordance with plans prepared by Frese - Camner Associates on file with the City of Coral Gables, Florida, File No. 2897 for a contract price of $65,940.00 with draw schedules attached. On December 6, 1982, Myron M. Gold and Roberta Fox (Homeowners) accepted the Proposal (Contract). On December 6, 1982, the Homeowners paid Respondent and Alonzo jointly $3,297.00 in accordance with the contract whereby they were to receive 5 percent of the contract amount as a down payment upon signing. The draw schedule provided for a 10 percent retainage from each draw which was to be paid to Respondent and Alonzo upon completion and the issuance of a certificate of occupancy. On December 21, 1982 the Homeowners paid Respondent and Alonzo jointly $2,025.00 which represented a draw on Schedule I - Item 3 for $1,350.00, Schedule II - Item 2 for $360.00 and Item 5 for $315.00. On December 17, 1982 the Homeowners and Respondent filed the affidavit required by ordinance with the City of Coral Gables for the purpose of having a building permit issued covering the work under the contract. 9. On January 19, 1983 Respondent using his building contractors license applied for building permit to cover the work anticipated under the contract and on the same day was issued building permit, No. 28214. Under the contract the Homeowners were to pay for the building permit and the bond required by the city. On January 26, 1983 the Homeowners paid Respondent and Alonzo jointly $3,000.00 which along with a payment on January 27, 1983 of $500.00 and January 31, 1983 of $544.60 represented a draw on Schedule I - Item 2 for $405.00, Item 5 for $1,260.00, Item 6 for $1,547.10 and Item 13 for $832.50. All payments from December 6, 1982 through January 31, 1983 under the contract by the Homeowners totaled $9,366.50 and were paid jointly to Respondent and Alonzo. On February 4, 1983 Respondent and Alonzo entered into an agreement, prepared by Myron Gold in the law office of Gold and Fox, whereby the Homeowners were to pay the balance of the funds remaining under the contract to Alonzo individually. After this date all payments were made to Alonzo. It was the Homeowners understanding after the February 3, 1983 agreement that Respondent would still be responsible for the supervision of the construction although they never saw Respondent again until October 1983. Edward Borysiewicz testified that he dealt with Respondent during March 1983 when he made the floor slab inspection on March 3, 1983 and the columns inspection on March 14, 1983. The record is clear that shortly after the agreement on February 3, 1983 Respondent no longer came to the construction site and supervised the work of Alonzo. On February 8, 1983 the Homeowners paid Alonzo $3,060.00 which represented a draw on Schedule I - Item 1 for $810.00, Item 5 for $1,417.50 and Item 13 for $832.50. On February 28, 1983 the Homeowners paid Alonzo $3,155.40 which represented a draw on Schedule I - Item 4 for $1,705.50 and $729.90 for extras apparently not covered by the contract but whether the balance of check No. 1161 (Pet. Ex. 13) of $720.00 was for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 18, 1983 the Homeowners paid Alonzo $1,000 which represented a draw on Schedule I - Item 9 for $819.00. Again whether the balance of check No. 1206 (Petitioner's Exhibit No. 13) of $181.00 is for payment under the contract or for extras is not shown in Petitioner's Exhibit No. 15. On March 21, 1983, the Homeowners paid Alonzo $6,400.00 which represented a draw on Schedule I - Items 10, 11, 12, 14 and 15. On March 21, 1983 the Homeowners paid Alonzo $2,166.90 but Petitioner's Exhibit No. 15 does not list check No. 1210 as being a payment under the contract or for extras. On March 31, 1983 the Homeowners paid Alonzo $4,230.00 which represents a draw under Schedule I - Item 7 for $2,520.00 and a payment for extras not covered under the contract in the amount of $1,710.00. On April 21, 1983 the Homeowners paid Alonzo $5,207.40 which represented a draw Schedule I - Items 1, 5, 6, 9 and 14. On June 24, 1983 the Homeowners paid Alonzo $5,788.00 which represented a draw on Schedule I - Item 12 for $667.00, Item 14 for $3,024.00 and payment for extras not under contract for $2,097.00. After March 14, 1983 Respondent was not seen on the job site and there was no longer any apparent supervision of Alonzo by Respondent. After Respondent left the job site there was no licensed building contractor involved in the construction. After Respondent left the construction site the Homeowners soon realized that Alonzo did not know how to proceed with the work and experienced problems with the pace and manner in which the work was being accomplished. On July, 1983, Alonzo stopped working altogether. Although the Homeowners were aware of the problems that Alonzo was having with the construction and that Respondent was not on the job, the record does not reflect that they ever attempted to contact Respondent after the meeting on February 3, 1983. On August 1, 1983 the Homeowners notified Respondent and Alonzo that the contract had been terminated. The Homeowners paid Respondent and Alonzo $42,174.20 total under the contract (pages 1-5, Petitioner's Exhibit No. 15) and paid Alonzo $10,766.37 for extras (Pages 6- 10, Petitioner's Exhibit No. 15). On August 31, 1983 the Homeowners paid Edward Bryant, plastering contractor the sum of $3,100.00 for plastering performed by Edward Bryant. This was for work under the contract that had not been completed or work necessary to correct problems that were already completed. Roberta Fox testified that there were no extras on plaster, however, page 7, line 11 and page 9, line 21 of Petitioner's Exhibit 15 indicates that there was extra plastering. On August 29, 1983 and September 29, 1983 the Homeowners paid Southwest Plumbing Services, Inc. the total amount of $4,875.00 for work contemplated under the contract that had not been completed or needed correction. Homeowners had paid Alonzo $3,591.00 for plumbing under the contract. Both Alonzo and Southwest Plumbing, Inc. were paid for extra plumbing not covered by the contract in the amount of $567.00 and $391.50, respectively by the Homeowners. From September 13, 1983 through June 13, 1984 the Homeowners paid Charles Brueg, Jim Brueg, Charles Buffington and Dan, Inc. the total amount of $4,192.91 for electrical work contemplated under the contract that was not completed or required correction after Alonzo left the construction site. Page 6 lines 6 and 11 of Petitioner's Exhibit No. 15 indicate that there were extras not covered by the contract. The total amount for electricity contemplated by the contract was $3,649.00. Alonzo was paid $2,627.10 under the contract and $1,710.00 for extras. The Homeowners were required to obtain the services of an air conditioning contractor to complete the work contemplated under the contract after Alonzo left the job site and as a result were required to pay Cameron, Inc., the air conditioning contract the amount of $5,181.60 between August 16, 1983 and January 24, 1984. The total amount contemplated under the contract was $3,600.00 of which $1,134.00 had been paid to Alonzo. Debris was dumped in the swimming pool requiring the Homeowners to pay $7,000 to refurbish the swimming pool. This amount included the repair contemplated under the contract and the extra work caused by Alonzo. The contract contemplated $2,300.00 for repairs of which none had been paid to Respondent or Alonzo. The Homeowners paid $1,150.00 to a painting contractor to finish the painting contemplated under the contract. Alonzo had been paid $1,125.00 for painting. (Petitioner's Exhibit No. 15) The contract provided $2,500.00 for all painting required under the contract. Respondent failed to notify the building department that he was no longer responsible for the construction. After the Homeowners terminated the contract due to Respondent's and Alonzo's nonperformance, the Homeowners had to expend a substantial amount of extra money to complete the construction. The evidence is insufficient to determine an exact or approximate amount. Roberta Fox's testimony was conflicting with regard to her understanding as to whether or not the Respondent would continue to supervise the construction after the meeting in the Homeowners' law office on February 3, 1983 when Respondent and Alonzo entered into this agreement. Myron Gold testified that it was his understanding that Respondent would continue to supervise Alonzo after the agreement. However, the Homeowners action in this regard subsequent to February 3, 1983, in making no effort to bring the matter to a "head" and requiring Respondent to supervise the work or terminate the contract and in continuing to deal with Alonzo although Homeowners were aware shortly after February 3, 1983 that Alonzo could not perform without Respondent's supervision and that they knew Respondent was not on the job, tends to show that they were aware or should have been aware that Respondent was no longer involved in the day to day supervision of the construction. Alonzo installed a fireplace pursuant to the contract that the building department determined to be a fire hazard and recommended against its use. The Homeowners applied for and were granted a "owner/builder" permit on September 1, 1983 and requested cancellation of the building permit issued to Respondent which was cancelled on September 6, 1983. They have not received a certificate of occupancy because the building department has not performed the following inspection: electrical final; plumbing final; air conditioning final; roofing final and public works final. The building department would have issued a "stop-work order" had it been aware that Respondent was not supervising the construction and would have required the Homeowners to obtain another licensed building contractor or proceed as a owner/builder. The plans prepared by Frese-Camner Associates that were made a part of the contract by reference were not introduced into evidence with the contract and thus the record is insufficient to determine what was required to meet the specifications of the plans and thereby determine if the specifications had been met. There was a permit issued for the septic tank and drain field which work was started in December, 1982. The construction of the house itself was started in January 1983. The first inspection (foundation) on the house was made by the building department of January 21, 1983.
Recommendation Based on the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(h)(k)(m), Florida Statutes (1981) and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $500.00 and suspend the Respondent's contracting license for a period of three (3) years, provided, however, that if Respondent submits to the Board competent and substantial evidence of restitution to Myron Gold and Roberta Fox within one (1) year from the date of the final order herein, then the suspension shall be stayed and Respondent placed on probation for the balance of the suspension. Respectfully submitted and entered this 6th day of February, 1986, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-2529 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. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 but clarified. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12 except clarified as to the last date on construction site. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17 but clarified. Adopted in Finding of Fact 15 but clarified. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 21. Adopted in Finding of Fact 11. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Findings of Fact 22 and 23. Adopted in Finding of Fact24 but clarified to show correct amount paid under contract as indicated by Petitioner's Exhibit 15. Adopted in Finding of Fact 25 but clarified to show that extra plastering not under contract was required. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29 but clarified. Adopted in Finding of Fact 30 but clarified. Rejected as immaterial. Rejected as not supported by competent substantial evidence. Rejected as not supported by substantial competent evidence. Adopted in Finding of Fact 31. Rejected as immaterial. Adopted in Finding of Fact 32 but clarified to show that the record does not support a figure that approximate $32,000.00. Rejected as not supported by substantial competent evidence even though the Homeowners' testimony supported this fact because the Homeowners' actions with regard to Respondent after February 3, 1983, was to the contrary. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 36. RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: No Findings of Fact was submitted by the Respondent. COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Douglas Beason Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. George J. Soler, Pro Se 3315 S.W. 96th Avenue Miami, Florida 33165
