The Issue Whether respondent committed gross negligence, incompetence, or misconduct in connection with the construction of the Lagos home; Whether respondent failed to properly supervise the job site activities during the construction of the home; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to this complaint, respondent was a registered residential contractor in the State of Florida, having been issued license number RR0030014, and served as the qualifying agent for John C. Greer, Incorporated. Respondent is now a certified contractor holding license number CB-C035168. In December, 1984, or January, 1985, John C. Greer, Inc., completed construction of a residential home located at 13907 Shady Shores Drive in Tampa, Florida. The respondent was the qualifying agent for John C. Greer, Inc., during the construction of the home and as such was responsible for its proper construction. On September 28, 1985, approximately nine months after the home was completed, Peter N. Lagos and Carol B. Lagos signed an agreement to purchase the home from John C. Greer, Inc., for $225,048.80. Respondent was not involved in the sale of the home. Indeed, respondent had left John C. Greer, Inc., in late May or early June of 1985 and Cathy Greer, respondent's wife and a certified residential contractor, was in charge of the business operations. The home is a two-story house consisting of 2700 or 2800 square feet of living space and a two-car garage. The first floor is concrete block construction and the second floor is frame construction with cedar siding. At the rear of the house on the first floor there is a lanai, or porch, which is covered by a flat-deck roof system. One end of the flat-deck roof system serves a dual function. It is the roof for the lanai and for a portion of the breakfast nook which extends into the lanai, and it is the floor for the balcony, or deck, which is connected to the second floor master bedroom. Sliding glass doors provide access from the master bedroom onto the deck. The portion of the roof which also functions as a deck was installed and intended to be perfectly flat with a zero pitch so that the deck could be utilized. The remainder of the roof system has a slight pitch. Before purchasing the home, Mr. Lagos noted that there were one or two fist-sized holes in the lanai ceiling and smaller holes in the breakfast nook ceiling by the air conditioning duct. He also observed stains on the ceiling by the recessed lights in the breakfast nook. The second floor deck had standing water near the sliding glass doors and also in a corner of the deck. Mr. Lagos was advised that a sheetrock man would repair the holes and everything would be corrected. Mr. Lagos reinspected the home prior to closing and was apparently satisfied with the repair work that was done. The Lagos' closed on the house on October 23, 1985, and moved in the next day. On the first night the Lagos' were in their new home it rained and water came out of the air conditioning register and through the lights in the breakfast nook. Mr. Lagos contacted John C. Greer, Inc. to correct the problem. Repairs were made in the first week of November, 1985, and the leaking stopped. The Lagos' had no apparent problem with leakage between November of 1985 and December of 1986. At the end of December, 1986, there was a substantial amount of rain. Mr. Lagos noticed that the ceiling in the lanai started to show signs of strain and buckling, and intermittently a small amount of water would seep through the breakfast nook ceiling near the lights. Mr. Lagos notified the Greers of the problem. By December, 1986, when Mr. Lagos notified the Greers of the problem, John C. Greer, Inc., had been dissolved. The corporation had built its last house in 1985 and had been dissolved after the one-year warranty period on the homes built by the corporation had expired. Therefore, when the problem with the Lagos house occurred there was no corporation, no qualifying agent, no liability insurance and no workers compensation insurance. Since there was no way for the corporation itself to correct the problem, the Greers advised Mr. Lagos to contact some contractors and get estimates of what it would cost to correct the problem. 1/ Mr. Lagos contacted Joseph Belt and Glen Kirkland, who are both certified general contractors, to provide estimates for the cost of repair. However, the repair work was ultimately performed by George Phillipson in 1988 at no cost to the Lagos'. There has been no further leaking and Mr. Lagos testified that Phillipson did "a beautiful job." 2/ There were several potential causes of the leak: (1) water ponding on the second story flat deck lanai roof; (2) improperly installed flashing; (3) water intrusion through the cedar siding and the lack of a vapor barrier behind the cedar siding. Initially, it was thought that there might be a leak in the roof itself or that the leak was caused by improper drainage of water from the roof. In March of 1987, 3/ Mr. Peter Scott, a professional engineer, inspected the flat deck roof while he was at the Lagos home to perform other work. Although it hadn't rained for two or three days before Mr. Scott observed the roof, there was still standing water on the roof deck. Regardless of any leaking, standing water on a roof is a problem because eventually the water will cause the roof membrane to deteriorate. Whether the form of the roof construction is ridge, pitch or flat, water should run to a drainage point where it will be collected and conveyed to the ground. Mr. Scott was of the opinion that a contractor building a flat deck should be especially concerned about storm water drainage. Besides the eventual destruction of the membrane, if water continues to collect on a roof it can rise above the flashing and cause leaking. However, in this case there was no evidence to establish that the standing water ever rose to that level. Although the ponding of the water on the second floor roof deck presented a problem, it was not the cause of the leak. The roof was tested by flooding and no leaking occurred. Mr. Kirkland testified that it appeared that some flashing had been improperly installed However, Mr. Kirkland admitted that when he inspected the roof deck area, someone had already taken apart the wall section and flashing. Therefore, he did not necessarily observe the flashing as it originally had been installed. Mr. Belt, who had the cedar siding removed to make an inspection, testified that there was no problem with the flashing and that the flashing appeared to be in reasonable shape. Mr. Phillipson also found that there was no problem with the flashing. Other than Mr. Kirkland's testimony that some flashing had been improperly installed, which testimony is rejected, there was no evidence suggesting that there was a problem with the flashing. The evidence established that the leakage of water into the house was caused by rainwater coming through the cedar siding. The cedar siding was attached directly to the wood frame. Both Mr. Kirkland and Mr. Belt were of the opinion that a vapor barrier should have been installed behind the siding. A vapor barrier is a film or sheeting that is placed over the frame and above the flashing. However, there was no code provision requiring that a vapor barrier be used in conjunction with the siding; the only code requirement was that the wall be moisture tight. George Phillipson inspected the Lagos home in early January, 1988. He observed standing water about a half an inch deep in an area approximately two feet by three feet in one corner of the deck roof. There was some siding separation, and the ceiling of the lanai showed indications of leakage. The ceiling was made of sheetrock, or greenboard. There was a brown stain about a foot in diameter on the ceiling, and in front of it the tape seam had separated. Because there were no signs of buckling, which would have been present if there had been a great deal of water intrusion, Phillipson concluded that he should look for a minor defect or irregularity as the source of the leak. Phillipson removed a two-foot by four-foot section of the sheetrock and examined the area of leakage from below. He also had the roof pulled back to check the plywood base. The plywood showed no signs of damage and the integrity of the built-up roofing was good. From his investigation of the house, Mr. Phillipson concluded that the leak was due to water coming through the cedar siding. Mr. Phillipson was of the opinion that the cedar had shrunk to some degree causing the caulking at the joints to separate. In a driving rain, water could get through the siding and into the wall cavity. When the deck was constructed a sill was placed on the plywood, including the inside of the wall cavity, and nailed down. Mr. Phillipson concluded that the water coming through the siding worked its way down to a nail which had pierced the sill and plywood and dripped down through the nail hole to the ceiling below. Mr. Phillipson concluded that the standing water on the roof deck had nothing to do with the leak. The standing water was located across the deck, approximately ten feet from the area where the leak occurred. From the location of the standing water, Mr. Phillipson concluded that it might have been caused by a ceiling joist failing to settle. Phillipson explained that often a piece of lumber is slightly bowed. The board is placed with the arch up, so that the middle will be higher. Normally, the board will settle or level itself. Sometimes, however, due to a knot in the center of the board or some other reason, the board does not settle and the area above the middle of the board remains slightly elevated. George Phillipson's testimony regarding the cause of the leak was the most persuasive of all the witnesses. He examined the problem areas more thoroughly than either Mr. Kirkland or Mr. Belt and he provided an analysis of the problems. Mr. Kirkland didn't do an in-depth analysis of the problem, and there was no need for him to do so. Although he looked at the house and prepared an estimate for Mr. Lagos, he admitted that his estimate was not based on any analysis of what was necessary to correct the problems, but was based on "all the things that Pete [Lagos] had requested us to perform." (T-62) When Kirkland was asked whether all the work included in the estimate was necessary he responded, "It would have brought the house up to the standards that Pete was looking for. At the time he explained to me what he'd wanted . . . . I don't think that it would have been necessary to do that to correct just that leak problem, to do everything that the proposal had covered. But he did ask me specifically for that. He pointed out exactly what he wanted me to do." (e.s.)(T-64) Since Mr. Lagos told Mr. Kirkland exactly what was to be done, there would have been no reason for Mr. Kirkland to analyze the source of the leakage or the reason for the ponding. Indeed, at one point Mr. Kirkland indicated that the leak was coming from the area of the roof where water was ponding, and he also suggested that there was a problem with the flashing. The totality of the evidence shows that Mr. Kirkland was incorrect on both of these theories. Further, Mr. Kirkland admitted that his opinion that work had not been completed properly was based on information relayed to him by Mr. Lagos rather than his own observations. (T-55) Mr. Belt's and Mr. Kirkland's testimony concerning the correct pitch for the roof is not accepted. Mr. Belt was of the opinion that the roof was improperly constructed because it did not have a minimum slope of 1/4" to one foot. Mr. Belt believed that this slope was required by code. However, the code section requiring a minimum slope of 1/4" to a foot referred only to liquid applied coatings. With other roofing materials a zero slope is acceptable. A liquid applied coating was not used on the Lagos roof, and it was not improper to construct the roof with a zero pitch. Nevertheless, there was clearly a problem with the drainage on the roof. Although the roof was intended to be a flat roof with zero pitch, at least a portion of the roof had a negative pitch slope back toward the house. Water did not drain properly. Respondent testified that the amount of ponding fell within industry standards and testified that the Home Buyers' Warranty Booklet (REx.#1) and the Home Owners Warranty Corporation Insurance/Warranty Documents (REx.#2) were the commonly relied upon performance standards in the industry. However, the Home Buyers' Warranty Booklet states that "[s]tanding water on flat built-up roof" is a deficiency and that the construction standard is that "water should drain from flat built-up roof, with minimum collecting." The Home Owners Warranty document states that "[s]tanding water on flat roof" is a possible deficiency and that the performance standard is, "[w]ater shall drain from flat roof except for minor ponding immediately following rainfall or when roof is specifically designed for water retention." The ponding water on the roof deck was a persistent problem. Mr. Scott observed standing water two or three days after it had rained. There was water ponding on the roof when Mr. Lagos first looked at the house in 1985 and there was a standing pond of water on the roof when Mr. Phillipson inspected the house at the beginning of 1988. The area of negative pitch was observed by Mr. Kirkland and Mr. Belt. The standing water on the roof was a deficiency and did not meet construction performance standards. With closer supervision this deficiency could have been prevented or corrected. The other problem with the house was that it leaked. The leak was a minor leak and was sporadic. It did not cause any damage except the staining of the lanai ceiling. Had vapor barriers been installed behind the cedar siding, the leak probably wouldn't have occurred. Nevertheless, there was no requirement that vapor barriers be installed behind the cedar siding. Cedar is quite suitable for an exterior wall and normally would be sufficient in and of itself to prevent the intrusion of water. Further, the placement of a vapor barrier directly behind the cedar siding could result in the cedar deteriorating more quickly. At the time of construction, it was not foreseeable that the leak which ultimately occurred would occur. Therefore, the installation of the cedar siding directly over the studs does not reflect incompetence or negligence in the construction of the home. Respondent's practice was to be on every construction job for which he was responsible at least once a week. Although this amount of time, in the abstract, may be sufficient to properly supervise construction activity, in this case the construction activities were not supervised as closely as they should have been. Respondent's own testimony revealed that he was not fully aware of the manner in which the house was constructed. He stated that he did not "know for a fact" whether or not the siding was installed directly over the studs. (T-105) He stated that he had not seen it. Although respondent stated that there was an effort to ensure that the deck would be flat, so that it could be utilized to the maximum, it is apparent that respondent failed to supervise the work closely enough to ensure that there was no negative pitch to the roof and that water would drain properly. At the time of the hearing, respondent had been selected Home Builder of the Year in Hillsborough County by the 1200 member builders' association. There was no evidence that respondent had ever had any prior complaints made against him or any disciplinary action taken against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent failed to properly supervise the job site activities of John C. Greer, Inc., in the construction of the Lagos home and reprimanding respondent for this offense. DONE AND ORDERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988.
Findings Of Fact The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company. On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000. The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction. The Respondent designed the Ciolli home, and his draftsman prepared the plans. During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder. Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters. The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose. Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile. The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper. The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows. The roof trusses, as installed, were inadequate: A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.) The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed. One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails. At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member. Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches. It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above. As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application. As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6. The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house. As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets. Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind. The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction). Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed. Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued. On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000. The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000. The Respondent has not paid the Ciollis judgment. The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies. The Respondent was of the opinion that the defects discussed above were cosmetic. The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects. The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent. The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from $50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year. The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed. The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
Recommendation Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000. DONE and ENTERED this 15th day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: 6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The allegation that the linoleum was peeling is not in the administrative complaint. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point. 14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through. The degree of spalling of exterior stucco was not proven by clear and convincing evidence. Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference. 14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. This proposed finding of fact is not supported by clear and convincing evidence. This proposed finding of fact is not supported by clear and convincing evidence. 21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing. 22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. Findings of fact proposed by the Respondent: 2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence. 5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic. Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record. The lack of hurricane anchors is a life safety defect. The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound. The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A. 1825 South Riverview Drive Melbourne, Florida 32901 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Findings Of Fact Arthur A. Noriega, Respondent, was issued a residential contractor's license, No. RR0026713, which reflects his address as c/o Noriega Construction, Inc., 5600 South Winter Beach Road, Box 111, Winter Beach, Florida 32971. Respondent's license required renewal, but as of June 30, 1981, he had failed to renew his registration with the Petitioner. Respondent was also required by law to notify Petitioner of any change of address from that listed on his license. He failed to do so. Arthur A. Noriega was issued a certificate as a Class III Contractor by the City of Vero Beach, Florida, by Certificate of Registration No. 270, on January 9, 1976, based on his passing the H. H. Block Examination, as certified by the Director of Building and Construction of Brevard County, Florida, per Certificate No. 2096, issued on December 5, 1975. A Class III Contractor is authorized by law to construct one and two- family residential buildings, and is not authorized to perform commercial construction. On August 21, 1981, Respondent entered into an agreement in writing with the Vero Mall to install two Class B fire doors with jambs, thresholds, and panic handles at the mall facility at 1255 U.S. Highway 1, Vero Beach, Florida, for a total sum of $1,160, to be paid in two segments: one half down at signing of the agreement, and the remaining half upon completion of the project. This work is classified as commercial, and is not within the scope of Respondent's license. The work was completed in December, 1981, except for the closers (panic bars); however, the Respondent was paid in full by check by Jim Wilson & Associates, owners of the Vero Mall. Indian River County Ordinance No. 80-17, effective on April 28, 1980, et seq., requires, at Section I, Paragraph 3, by amending Section 105.1(e) of Indian River County Ordinance No. 74-11, that all construction except ordinary, minor, nonstructural repairs not exceeding in cost of $100 be commenced only upon the approval of the building official and with a permit. The permit from Indian River County, upon the application of the Respondent, to cover the work called for as the Vero Mall, which had been at least partially accomplished in December, 1981, was not issued until February 26, 1982, approximately two months after the work was accomplished. The permit was applied for and granted by mistake after a citation had been issued to the Respondent for working without a permit because county officials failed to check what the status of the Respondent was at the time of the application. Had they checked, the permit would not have been issued because Respondent was not certified for commercial construction. When the permit was issued, however, a double fee was charged because of the fact that it was applied for after work was begun. On October 25, 1982, an Administrative Complaint was filed in this case by the Secretary, Department of Professional Regulation, on behalf of the Construction Industry Licensing Board, containing allegations consistent with the above Findings of Fact. This complaint was served on the Respondent by hand delivery by Mr. Thomas G. McAndrews, an investigator for the Department of Professional Regulation, at 956 13th Avenue, Vero Beach, Florida. This address, at which the Respondent was doing business, is different from that listed on his application for a Certificate of Registration and from that last appearing on the records of the Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's contractor's license be suspended for a period of six months. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983. COPIES FURNISHED: Jane Heerema, Esquire Roberts, Egan &. Routa, P.A. 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. Arthur A. Noriega Post Office Box 2303 Vero Beach, Florida 32960 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue for consideration in this hearing is whether Respondent's license as a professional engineer in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency responsible for the licensing of professional engineers in this state. Respondent, James B. Whittum, was licensed as a professional engineer by the Board under License No. PE 0027689, dated March 9, 1979. He is a consulting engineer dealing primarily in aluminum structures - mostly pool enclosures. Starting in 1990, Respondent did a number of designs, some thirty to fifty a year, for Paglino Aluminum, an aluminum contractor located in Tampa, which might also have had offices in Miami. The company is now out of business. Sometime in 1992 Respondent approved plans for Paglino for a residence for Mr. and Mrs. Marrero. These drawings were for an aluminum enclosure. He did not personally make the drawing which had been done by Mrs. Paglino. He did not know where the Marrero residence was but claims that at no time did he do or approve any drawings which he believed would be utilized for construction in Miami. In order to save clients money, Respondent had established a practice with Paglino and with a number of other clients by which he would train them in how to design and draw the pool cages. Respondent would provide the clients with a design booklet and instruction on how to use it. The client would bring drawings to the Respondent who would check them over to make sure that everything was done according to the design basis. A copy of the design guide was furnished to Paglino. Once Respondent received the drawings from the client, he would go through the whole design procedure himself to be sure that the drawings conformed to the code. In order to place his signature and seal on drawings, he had to have an identification of the site (either the name of the owner or the address of the site), the dimensions of the slab on which the structure is to be built, and the orientation of the structure with reference to the existing building to which it was to be attached. With regard to the specific plans in issue, Mr. Whittum did not know the structure was to be built in Dade County. The plans he saw bore the Marreros' name but not their address. He never spoke to the Marreros except for one call from Mrs. Marrerro, after the structure was built, complaining about it. Before signing the plans, Respondent checked in the Tampa phone book for listings for Marrero and found twenty-five or thirty listings for that name. He assumed the Marreros for which these plans were drafted were one of those families listed. It is not Respondent's practice to know the street address for every design he signs and seals. He inquired of several other engineers designing aluminum structures to see if they did the same as he proposed before signing and sealing these plans. He found that they have either the name of the owner or the street address, but not necessarily both. Included in those with whom Respondent spoke concerning this issue were engineers in Sarasota and Cape Coral. This testimony by Mr. Whittum as to the practice of other engineers is hearsay, however. Most counties in Florida, except Pinellas County, do not allow the use of standard plans as submittals for the purpose of permitting. However, an engineering firm has drawn a set of master drawings for the design of aluminum structures. These drawings were done for the Pinellas Chapter of the Aluminum Association of Florida, and each aluminum contractor in that county files them with the Pinellas Building Department. Thereafter, when plans are submitted, the Department official examines the plans with reference to the standard and decides whether or not to issue the permit. If the plans submitted by the contractor conform to the master design no engineer's signature or seal is required. This procedure has no bearing on any other county in Florida, however, and Respondent does not contend he believed at the time that the plans he signed would be used for construction in Pinellas County. It was not Respondent's practice to require a street address for the plans he signed and sealed for Paglino Aluminum. It was his understanding, however, that the instant structure was to be built in Hillsborough County because all the other jobs he had done for that company were, without exception, built in Hillsborough County. At no time did Paglino ever seek Respondent's permission to transfer these drawings to Dade County. By the same token, nobody asked him if the design he drew would be appropriate for Dade County. Had they done so, he would have told them the drawings were not suitable to meet the South Florida Building Code where the structural design standards are, in many ways, more stringent than in the Standard Building Code. As a result of this incident, Respondent has changed the procedure he follows. He now requires the drawings include a statement of who purchased the plans and who the proposed permitting authority is. This is not required by rule but is a precaution he takes. In his opinion, the drawings in issue were site specific. They showed the dimensions of the slab the structure was to be built on which determines the design for the size of the beams and their spacing. They also showed the orientation to the house where the structure would be connected. This was, he contends, all he needed to know to do the calculations for construction under the Standard Building Code. These calculations generally do not vary from county to county, with the exception of Dade and Broward County, where the South Florida Building Code is used. The plans Respondent signed and sealed did not indicate where the structure was to be built at the time he signed and sealed them. The plans called for a structure that could be put up anywhere in the state, except for Dade and Broward Counties. The fact remains, however, that at the time he signed and sealed these plans, Respondent did not know where the structure was to be built. His supposition that it would be built in Hillsborough County, while perhaps reasonable for a lay person, was not reasonable for a licensed professional engineer. According to James O. Power, a consulting structural engineer and expert in the practice of engineering, a structural engineer, in signing and sealing plans, accepts responsibility for the integrity of the design, certifies that the plans are good for their intended purpose, and asserts that the structure will be safe. A sealed plan may be necessary, depending on the building code and enforcement agency. The code leaves it up to the building official to require what he feels is necessary. Depending on the agency, permits may be issued on the basis of non-sealed plans. The seal carries with it the added imprimatur of the engineer's expertise. Properly sealed plans should: (1) identify the project; (2) identify the drafter; (3) identify the Code used; and (4) indicate limitations on responsibility the engineer has taken. Aluminum screen enclosures are generally similar and simple. Standard drawings can be developed for them. However, the standard plan, by itself, will not support a permit. To support the issuance of a permit, the plan must be site specific. This is a universal concept. For that purpose, additional drawings must be accomplished which consider and treat the specifics of that project. Frequently, plans are issued with a statement by the engineer limiting the degree of his or her responsibility, such as "only treating one issue" or "plans are standard and not site specific." No such limiting language was placed on the drawing in issue except, "This design is specific to this job. It is not valid if filed as a standard." In July, 1994, Mr. Power was contacted by the Department to evaluate the allegations against the Respondent in this case. In doing so, he reviewed the investigative report, portions of the transcript of the meeting of the Probable Cause Panel, the drawings in issue, and affidavits by Respondent and by the Dade County building official, but did not speak with any of them. Respondent's plans in issue bear the notation that the design is "job specific" and not valid if filed as a standard. This means that the plan should identify the job for which the plans were drawn and bear details pertinent to it. Here, the Respondent's plans refer to the "Marrero" job, and who the contractor was. In Power's opinion, this is not complete and it is not enough for the engineer to say he had the specifics in his mind. The plans must be complete and stand by themselves. Mr. Power admits he has not designed any pool enclosures. He also did not inquire whether Respondent had an office in Dade County or what the permit requirements of counties in the state are. However, in his opinion, it is universal that standard plans do not support the issuance of a permit. Respondent's design includes connection details, slab details and wind load requirements. However, the name of the owner, alone, is not site specific information. While the exact street location is not required, an identification of the area in which the project is to be built, at the very least by county, is. Respondent's expert, Mr. Sterling, is less critical of Mr. Whittum's performance. In his opinion, it is not common within the profession for signed and sealed drawings to have an address or a name or contractor's name on them. Having reviewed Respondent's drawings, Mr. Sterling does not see anything else he would need to know to properly design the structure. He does not agree with Mr. Power with respect to having the address on each and every drawing. To him, what is important in looking at the drawing from a structural point of view are the design criteria that were applied to that particular structure. To his knowledge there is no professional requirement, statute or regulation that would oblige one to provide additional information. He admits, however, that there may be different practices or rules being applied in Dade and Broward Counties with respect to structure of this type. By Final Order dated April 3, 1992, the Board disciplined Respondent's license for negligence in the practice of engineering by signing and sealing plans for an aluminum screened pool enclosure which the Hillsborough County Building Department found failed to meet acceptable engineering standards. The penalty imposed included an administrative fine of $500, a reprimand, and probation for one year under conditions designed to insure technical and professional enhancement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued finding Respondent guilty of negligence in the practice of engineering; imposing a fine of $1,000.00 and revoking his license, but that so much of the penalty as provides for revocation be suspended for a period of two years. RECOMMENDED this 31st day of May, 1995, 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 31st day of May, 1995. APPENDIX TO RECOMMENDED ORDER 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. Accepted and incorporated herein. 2 - 11. Accepted and incorporated herein. 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted, but primarily a restatement of testimony. 17. - 22. Accepted, but these are primarily restatements of witness testimony. FOR THE RESPONDENT: - 4. Not Findings of Fact but statements of procedure followed. Unknown. - 9. Not Findings of Fact but comments of the evidence. Accepted and incorporated herein. - 13. Accepted. 14. - 17. Accepted and incorporated herein. - 21. Accepted and incorporated herein. Rejected as surmise of witness, not knowledge. - 25. Accepted. - 28. Accepted. Not a Finding of Fact but a restatement of the issue. & 31. Not Findings of Fact but restatements of testimony. Not a Finding of Fact but a comment on the evidence. - 37. Accepted. Not a Finding of Fact but a restatement of the evidence. & 40. Not Findings of Fact but restatements of testimony. - 44. Accepted. Not a Finding of Fact but a restatement of testimony. More a comment by one witness on the testimony of another witness. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Mary Ellen Clark, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles S. Stephens, Esquire 1177 Park Avenue, Suite 5 Orange Park, Florida 32073 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Section 489.227(1)(f), Florida Statutes, for the reasons stated in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting in the State of Florida. The Department of Business and Professional Regulation has jurisdiction over the unlicensed practice of contracting pursuant to Section 455.228, Florida Statutes. At no time material hereto was Respondent duly registered or certified to engage in the practice of contracting pursuant to Part I, Chapter 489, Florida Statutes. Augustine Weekley and Marilyn Weekley, the homeowners of a residence located at 2619 Bayshore Boulevard, Tampa, Florida, sought to remodel specific areas of their home. Initially, Mr. Weekley hired Wedgewood Contractors ("Wedgewood"), a licensed contractor, to perform the construction work. In the fall of 1999, Wedgewood obtained a building permit and commenced work on the Weekley project, but was eventually terminated by Mr. Weekley for unsatisfactory work. Mr. Weekley, a licensed contractor, then hired Respondent to take over the construction work. Mr. Weekley and Respondent entered into an oral contract whereby Respondent would complete work on the Weekley home and he would be paid as the work progressed. Between November 6, 1999 and June 16, 2000, Respondent sent invoices to the Weekleys totaling nearly $30,000 for labor and materials related to the construction work he performed, which amounts were paid in full by the Weekleys. The scope of the work performed by the Respondent as evidenced by the invoices, when considered as a whole, required either licensure or permitting. Admittedly, a building permit cannot be obtained by Respondent because he is not licensed. The building department records of the City of Tampa show that Respondent was never identified as the contractor of record for the Weekley project. The Weekleys became concerned when Respondent failed to deliver certain building materials that they had paid him to provide. On June 16, 2000, Respondent abandoned the Weekley project. Thereafter, Mr. Weekley hired another contractor to complete the work required for the project. Although Mr. Weekley is licensed as a general contractor, he did not determine whether Respondent was licensed. At no time did Respondent represent that he was a licensed contractor. The Department's investigative costs for this case total $350.62.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 489.227(1)(f), Florida Statutes, imposing an administrative fine in the amount of $1,000, and requiring Respondent to pay costs of the Department's investigation in the amount of $350.62. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 30th day of July, 2002. COPIES FURNISHED: John R. Bishop 2212 Spyglass Hill Circle Valrico, Florida 33594 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Patrick L. Butler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues in this matter are those raised by an Administrative Complaint brought by the Petitioner against the Respondent charging the Respondent with violations of Chapter 489, Florida Statutes. In particular, these allegations pertain to services performed by the Respondent as a roofing contractor, for the benefit of one Dale Weich. These offenses are more completely described in the Conclusions of Law section to this Recommended Order.
Findings Of Fact At all relevant times to this case, Respondent Rex Alaniz was a registered roofing contractor having been issued license number RC0042021 by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Within that time sequence, Alaniz also served as the qualifying agent for Rex Alaniz Roofing and Remodeling Co. On July 27, 1983, Respondent entered into a contract with Dale Weich to effect repairs to Weich's home. That residence was located in Jacksonville Beach, Florida. The substance of the repairs primarily dealt with leaks in a built- up flat room over the garage at the Weich residence, as it joined the house. The main part of the house had a pitch roof covered with terra-cotta tiles. Work was also to be done on the terra-cotta roof. The work on the garage area, where the flat roof was found, included the placement of tar and gravel and the replacement of certain timbers in the garage structure. The roof was leaking in four distinct locations. A copy of the contract may be found as Petitioner's exhibit number 7 admitted into evidence. That contract is in the amount of $860.00 which has been paid to the Respondent in exchange for the work. The work was warranted, per the contract, for a period of one year. On July 28, 1983, Respondent commenced work. When the Respondent showed up for work and began the process, he had not obtained a building permit from the City of Jacksonville Beach. A permit was obtained before the work was completed on July 28, 1983. In failing to obtain the permit initially, Respondent was knowingly or deliberately disregarding the requirements to obtain it, in that he had frequently done work at Jacksonville Beach and was aware of the need to pull the permit before commencing the work. Under the circumstances, the failure to obtain the permit before commencing the work is not found to be an oversight by Respondent. On the same date the work was done, it rained and the roof leaked in the same places it had leaked before repairs were made. There ensued a number of trips on the part of Respondent and his employee to attempt to correct the circumstance. This included adjusting the tiles on the roof to the main house; placing additional tar on the built-up roof over the garage; placing water on the roof by the use of a garden hose, at which time the roof did not leak, and plugging up a small opening at the edge of the roof. On one of the visits by the Respondent following the work of July 28, 1983, it was raining and the roof was leaking and these leaks were observed by the Respondent. Weich tried to contact the Respondent after the events described immediately above, in an effort to get the Respondent to correct the problems. He received no response from Alaniz. Sometime around September 1983, Weich saw the Respondent in a store and told the Respondent that the roof was still leaking and asked that the Respondent return to fix the leaks. Respondent agreed to return to the job, but has yet to honor that agreement. This discussion in the store was not one in which Weich agreed to pay the Respondent additional money to return to the job, as was testified to by the Respondent in the course of the final hearing. At the time of the final hearing, the roof still leaked in those places for which Respondent had contracted to complete repairs.
