The Issue The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals. On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified. When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace. In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage. When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer. The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work. The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection. According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December 9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp." Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of $155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection. Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix. The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00. DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 24643-5116 Bret Hill 4904 Headland Hills Avenue Tampa, Florida 33625 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), and 489.129(1)(m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Brown holds a current, active Florida State Certified General Contractor License number CG C062829. He is the owner and qualifying agent for Churchill’s Construction Co., Inc. (Churchill’s). Sometime in 2003, Churchill’s entered into two contracts with Walcott Allen to construct two homes in Charlotte County, Florida. Mr. Allen was a friend of Mr. Brown. Mr. Allen had had a contractor’s license, but the license had been revoked by the Department. Mr. Brown decided to make Mr. Allen vice president of operations for Churchill’s. The purpose was two-fold. First, Mr. Brown did not think that he would be able to be present at the construction sites of Mr. Allen's homes very often, but Mr. Allen would be at the construction most of the time. By making Mr. Allen a vice president of the company, Mr. Brown felt that the building inspectors would be satisfied that Churchill’s had a presence at the construction sites. Additionally, Mr. Brown was hopeful that Mr. Allen would be able to generate business through some of his business associates. Sometime in 2003 or 2004, Mr. Brown and Mr. Allen went to the real estate office of Debbye Fitzpatrick concerning the purchase of some lots. In 2004, Hurricane Charlie struck the Port Charlotte area and did considerable damage, including damage to the residence of John and Debbye Fitzpatrick. Debbye Fitzpatrick knew that Mr. Allen had done some construction work in the past and approached him about repairing the damage to her home. Mr. Allen advised Mr. Brown that the Fitzpatricks were interested in Churchill’s repairing the damage to their house. Sometime before December 15, 2004, Mr. Brown and Mr. Allen went to the Fitzpatricks' home to look at the damage. Neither Mr. Brown nor Mr. Allen advised the Fitzpatricks that Mr. Allen could not enter into a contract on behalf of Churchill’s. Mr. Allen gave the Fitzpatricks a business card indicating that he was the vice president of operations for Churchill’s. On December 15, 2004, the Fitzpatricks entered into a contract with Churchill’s to make the repairs to the Fitzpatricks' home. The contract was not written on the form usually used by Churchill’s. Mr. Allen signed the contract on behalf of Churchill’s. The contractor license number listed on the contract was Mr. Brown’s. The total contract amount was $65,728. Based on the contract, Churchill’s was to remove existing drywall ceilings and insulation and replace with new insulation and sheetrock, remove existing drywall and insulation for the walls and replace with new sheetrock and insulation, lay floor tiles, paint the ceiling and walls, replace all the electrical fixtures, and power wash and paint the exterior of the house. Churchill’s applied for a building permit for the repairs to the Fitzpatricks’ home. The permit application was signed “Winston Brown” and was notarized. Mr. Brown contends that he did not sign the application and that the signature is a forgery by Mr. Allen. To a layperson, the signature on the permit application for the Fitzpatrick house does differ significantly from the signature on other documents submitted by Mr. Brown, which documents he testified bore his signature. Mr. Allen commenced work on the Fitzpatrick house. On February 17, 2005, Debbye Fitzpatrick wrote a check for $7,500 made payable to Wally Allen as the initial payment for the construction work. Mr. Allen had asked Debbye Fitzpatrick to make the check payable to him rather than to Churchill’s. Debbye Fitzpatrick did not think it was out of the ordinary for the check to be made out to Mr. Allen, and she complied with his request. On March 29, 2005, Debbye Fitzpatrick wrote another check to Mr. Allen for $10,000 as a draw on the contract amount. On June 23, 2005, she wrote another check to Mr. Allen for $11,601.77. The work on the project did not go well according to the Fitzpatricks. Some of the tiles that were laid were cracked, and some of the tiles gave out a hollow sound when tapped with a wooden implement. Some of the tiles were not grouted. Some of the grout in the tile work was not sealed. Insulation was not replaced in some of the ceiling areas. Patches to the sheetrock on the walls and ceiling were visible. The texturing of the paint was not consistent, with some areas having too much texture and some areas not having enough. The workers were careless with their painting and got paint on the carpet, furniture, floors near baseboards, windows, window frames, soffits, and front porch. The workers also damaged some of the furniture and kitchen appliances during the performance of their work. The front entry door was not installed properly. The garage door was not primed and the paint peeled. The vanity top in the master bedroom was not installed properly and had to be redone by another contractor. In July, Mr. Allen and his workers stopped coming to the job site. No notice was given to the Fitzpatricks that work was going to be stopped. No one from Churchill’s ever came back to work on the project, and the work on the project was not complete and was unsatisfactory. The Fitzpatricks had to pay an electrician $1,500.00 to do work that was supposed to be included in the contract with Churchill’s. Although there was unrebutted testimony that the Fitzpatricks had to pay other contractors to repair the damage done by Churchill’s, there was no evidence presented to quantify the amounts paid and the damage sustained other than a payment to the electrician. Additionally, some of the work not completed by Churhill’s had not been done because the Fitzpatricks lack the funds to complete the work. Again, no effort was made to quantify the amount of money necessary to complete the work. Mr. Brown claims that he did not know anything about the project and that Mr. Allen acted without authority to bind Churchill’s to a contract for the project. Mr. Brown’s testimony is not credible. Mr. Brown made Mr. Allen a vice president of the company and went with Mr. Allen to the Fitzpatricks’ home to look at the work that was needed. According to Mrs. Fitzpatrick, “Mr. Allen did most of the talking as to what was to be done and what the procedure was to be and he [Mr. Brown] didn’t speak very much, but he did nod and go along with what the plan was.” One of the reasons that Mr. Brown made Mr. Allen a vice president of the company was to garner additional business. If Mr. Brown had not wanted Mr. Allen to act on behalf of Churchill’s, Mr. Brown should not have made Mr. Allen a vice president of the company. Mr. Brown knew that any work that Mr. Allen was able to secure would have to be done using Mr. Brown’s license because Mr. Allen’s license had been revoked.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(j) and 489.129(1)(m), Florida Statutes, and did not violate Subsection 489.129(1)(g)2., Florida Statutes; placing Respondent on probation for two years; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; and requiring Respondent to make restitution to the Fitzpatricks in the amount of $1,500.00. DONE AND ENTERED this 14th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of March, 2008.
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
Findings Of Fact A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an] electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspended respondent's certificate of registration for sixty (60) days. DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task. Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch. COPIES FURNISHED: Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building Tallahassee, Florida 32302 Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, a State agency, Complainant, vs. DOAH CASE NO. 77-2224 CLARENCE L. KIMBALL, Registrant. /
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
The Issue The ultimate issue to be decided in this proceeding concerns whether the Petitioner C & M Building Systems, Inc. should be granted certification as a minority business enterprise. In order to make that determination it must be decided whether Maxine R. Chentnik, the president of the Petitioner corporation, and its minority group member owner, controls the management and daily operations of C & M Building Systems, Inc.
Findings Of Fact The Petitioner, C & M Building Systems, Inc., was incorporated in Florida on October 15, 1975. The Petitioner at that time operated under the name of Homes Unlimited, Inc. and was primarily engaged in residential construction contracting. Since that time, the name has changed to the present name of the Petitioner corporation and since at least the mid-1980's the primary business of the corporation has been commercial construction contracting. The net worth of the Petitioner corporation is under a million dollars and 60 percent of its stock is owned by Maxine R. Chentnik, an American female. Forty percent of the stock is owned by her husband Chester G. Chentnik. Mr. Chentnik has over 33 years experience in the construction business as well as a doctorate degree in business administration. For some twelve years he taught business management courses at Florida State University. Mrs. Chentnik has a bachelor of science degree in education and attended business college for approximately one year. Additionally, she has taken approximately 15 hours of college level courses in the fields of interior design and architectural drafting. Mrs. Chentnik's experience in the construction industry began when she and her husband built their own home in 1974. They served as their own contractors and Ms. Chentnik was most involved in that construction project since her husband worked full time at the university. This allowed her to gain experience in hiring and negotiating with subcontractors, arranging for payment of them, in ordering materials and supervising the construction of the home. She and her husband were in need of extra income and therefore she conceived the idea of starting their own residential construction business. When their Corporation, Homes Unlimited, Inc. formed, Mrs. Chentnik was unemployed and, since her husband was still employed at Florida State University, she devoted the majority of the time of the two owners and officers, to the operation of the business. After building their own home, various friends and other customers began engaging them to do residential building projects. Thus, from 1974 until 1982, they built approximately 12 residences. Some of these were built for speculation purposes. Mrs. Chentnik did part of the initial design of the homes, obtained prices from subcontractors, exercised supervision at the job site as to the manner of construction and maintained the books and records of the business. Mrs. Chentnik has never held a contractor's license herself. All of these projects were built using Mr. Chentnik's license. He did the estimating of materials needed, material and labor costs involved and arrived at prices to charge the owner or customer. He had similar managerial duties to those of Mrs. Chentnik. The supervision of the home construction was a joint project because Mr. Chentnik had more technical construction knowledge than Mrs. Chentnik due to his years of experience in construction. He had many years of construction experience working with his father prior to obtaining his college education. In 1982, Mr. Chentnik left his employment with Florida State University and engaged in the construction business full time. From 1983 to 1985, Homes Unlimited, Inc. was associated with Paragon Builders, a corporation which was owned by Mr. and Mrs. Chentnik and another couple. Paragon entered into a consultant agreement with Homes Unlimited by which Homes Unlimited was responsible for estimating material and labor needs, as well as job costs, for bidding purposes, and assembling, preparing and submitting bids. It was also charged with performing job site supervision of Paragon's construction projects. Mr. Chentnik performed under this consulting agreement for Homes Unlimited. Mrs. Chentnik was less active in the business operations at that time due to her child rearing duties. In 1985, the relationship between Homes Unlimited and Paragon Builders came to an end and Paragon Builders, Inc. was dissolved. Homes Unlimited had become primarily a commercial construction contracting company and as a result the name was changed to that of C & M Building Systems, Inc. in November, 1985. The initial directors of Homes Unlimited and C & M Building System corporation were Chester G. Chentnik and Maxine R. Chentnik. The articles of incorporation provide that there should not be less than two directors. The articles also provide that the initial bylaws of the corporation must be adopted by the Board of Directors, and that the Board has the power to amend them. Article 3 Section 2 of the Bylaws at present, provides that the number of directors shall be two and that the affairs of the corporation shall be managed by the Board of Directors. The Bylaws provide that the Board of Directors shall be elected by the shareholders at the annual meeting. Section 12 also provides for cumulative voting for election of the Board members, meaning that at each election of the Board, each shareholder shall have the right to vote the number of shares owned by him for as many persons as there are directors to be elected or he may accumulate his votes by giving one candidate as many votes as the number of directors to be elected, multiplied by the number of his shares, or by distributing those votes on the same principle among any number of candidates. The Bylaws provide that a majority of the directors constitutes a quorum for the transaction of business. Article 4 Section 1 of the Bylaws provides for a president, vice president, a secretary, and treasurer. All must be elected by the Board of Directors. The president is the chief executive officer of the corporation, subject to control by the Board. The president may execute contracts or other documents which the Board authorizes, as can the secretary or other officers. In January, 1986, the Board passed a resolution providing that estimates of the costs of work proposed to be done by the corporation are to be prepared by the president or secretary and that any proposal submitted by the corporation must be prepared, examined by and submitted to the president or secretary. It is also required that all orders for materials are to be given in writing by the president and secretary or by either of them acting with the consent of the other. No order is valid unless signed by the president or secretary. Contracts for the performance of work are valid only when signed by the president or vice president and by the treasurer or secretary. In April, 1986, C & M, by resolution of its Board, entered into an agreement with CGC Company whereby CGC would thereafter provide "all bidding, on-site management, and "special administrative services" (subject to the ultimate management power being vested in C & M's Board of Directors). CGC is to be compensated for these services at the rate of $1,000 per month, plus a performance fee at the end of each fiscal year, as determined by C & M's Board of Directors, based upon C & M's profitability during the preceding fiscal year. Chester Chentnik is the president of CGC Company and performs the services involved in construction site management, preparation of bids and the like. Mr. and Mrs. Chentnik have alternated at being president of C & M since its incorporation (under its original name) in 1975. Mr. Chentnik was first elected president and Mrs. Chentnik was elected vice president, as well as secretary- treasurer. Mr. Chentnik was president in 1976, 1978, 1980, 1982, 1984, 1986 and 1987. Mrs. Chentnik was president on alternate years beginning in 1977 and was president in 1988 and to the present. Mr. Chentnik explained that the alternating presidencies were intended to more evenly divide the workload involved in signing documents. Mr. Chentnik is currently the vice president and secretary-treasurer of the corporation. In 1986 and 1987, Mrs. Chentnik was employed with a real estate firm and Mr. Chentnik primarily ran C & M operations by himself. The Petitioner is currently working on construction projects involving the Florida A & M University President's residence, the Department of Transportation building; the computer room in the Carlton Building, a bus washing facility for the Leon County School Board, as well as a renovation project for the Florida Bar. Those projects are being performed under Mr. Chentnik's license. Mr. Richard Farrell was employed with C & M as a building superintendent and placed his contractor's license with C & M. His license was not used for any contracts presently being performed by C & M, however. Mr. Farrell is no longer an employee and is not performing work for C & M. Mr. Farrell now manages a related mill-work manufacturing company owned by the Chentniks, but is not performing any construction work or supervision for C & M. The decision to hire Mr. Farrell was a joint one by both Mr. and Mrs. Chentnik. His direct supervisor was Mr. Chentnik, although both Mr. and Mrs. Chentnik had supervisory authority over him. In any event, Mr. Chentnik's license is now the license qualifying the company as a construction contractor for purposes of Chapter 489, Florida Statutes, and the authority of the Construction Industry Licensing Board. Mr. Chentnik does the estimating for the company, prepares bids for jobs, is responsible for supervision of the construction details of the business, as well as for construction site management. On those bidding situations when he does not prepare the entire bid, he generally prepares the cost estimate portion of it and the remainder of the bid, concerning the addition of "overhead", and profit increments, are prepared jointly with Mrs. Chentnik. He also deals with the architects, engineers, and subcontractors, especially at the job site, and, since Mr. Farrell's departure, has taken over his job site supervision responsibilities. Mr. Chentnik has signed contracts for the company, executed change orders, pay requests, contract amendments, purchase orders and has prepared and submitted bids on behalf of the corporation. Mr. Chentnik signed the Department of Transportation contract in June, 1988 and an amendment to that contract in December of 1988. He also signed signed certain change orders to the Florida Bar contract in both September and November, 1988. The Carlton Building computer room bid was signed by Mr. Chentnik in September, 1988, as well as a change order for the Florida A & M University project which he signed in November, 1988. Mrs. Chentnik does not hold a contractor's license herself. She does all the bookkeeping for the company, pays the bills, and deals with the banks; in terms of checking and savings account deposits, withdrawals, as well as arranging credit. She has signed certain notes and lines of credit herself. She orders supplies and takes care of the insurance needs of the business and monitors which construction projects are coming up for bid, and obtains plans for them for the company to consider. She also contacts subcontractors for prices, attends bid openings, and arranges for bonding for the company for the jobs it undertakes. She assists in preparation of bids, especially the supplying of figures for overhead and profit on bids the company submits. She shares in the supervision of employees with her husband and directly supervises one employee, a part-time clerical helper. The company secures a great deal of its business by competitive bidding. Cost estimating is an important part of the bidding process. This estimating is performed primarily by Mr. Chentnik. Mr. Chentnik also developed the computer program to assist the company in its bidding efforts. The bidding program contains a range of percentages of overhead and profit which the company can add to the cost estimates on its bid to arrive at its most advantageous bid price. Mrs. Chentnik typically chooses a percentage for overhead and profit from the ranges set by the computer program. Mrs. Chentnik does not prepare entire estimates or bids herself. In all nearly cases her husband has assisted her. Mrs. Chentnik did prepare an entire bid for a flagpole project, valued at approximately $3500. In essence then, the decisions concerning which projects the company bids and which it declines to bid on have been joint decisions of Mr. and Mrs. Chentnik. They have usually jointly prepared bids, with Mr. Chentnik doing the greater part of that effort in providing the cost estimates. Both of them have historically negotiated prices with subcontractors in order to obtain figures for costs for a given project, in the course of preparation of a bid, however. The company has a checking account, a money market account and holds certificates of deposit. Both the Chentniks have equal drawing rights on all the accounts. The decision as to what amount of money to be placed in certificates of deposit is usually a joint decision. Both Mr. and Mrs. Chentnik have previously signed as personal guarantors on debt instruments for the company. Although Mrs. Chentnik does most of the banking business on behalf of the company, neither Mr. nor Mrs. Chentnik has sole control or authority over the bank accounts and the banking relationships of the corporation.
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 denying the request for certification as a minority business enterprise of C & M Building Systems, Inc. DONE and ENTERED this 5th day of September, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2758 Petitioner's Proposed Findings of Fact (The rulings below relate, by number, sequentially, to the unnumbered paragraphs of the Petitioner's proposed findings of fact) Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely comporting with the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not, in itself, dispositive of material issues presented. Respondent's Proposed Findings of Fact 1-15. Accepted Rejected as unnecessary and not dispositive of material issues. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 25-29. Accepted. COPIES FURNISHED: James O. Shelfer, Esquire Gardner, Shelfer & Duggar 1300 Thomaswood Drive Tallahassee, Florida 32312 Susan B. Kirkland General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
