Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter its final order: Finding the Respondent guilty of Count One of the Administrative Complaint by (a) violating section 489.129(e), Fla. Stat. (1981), by aiding and abetting an uncertified and unregistered person to evade the licensing provisions of the Contracting Act, and (b) by violating section 489.129(1)(f), Fla. Stat. (1981), by knowingly combining and conspiring with an unregistered and unlicensed person with intent to evade the provisions of the Contracting Act. Finding the Respondent not guilty of the allegations in Count Two of the Administrative Complaint. For the violations of Count One, imposing a fine of five hundred dollars ($500). DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin F. Mann 2216 Bayshore Garden Parkway Bradenton, Florida 33507 Simon Rosin, Esquire Pflugner, Rosin & Hendricks Post Office Box 1918 Sarasota, Florida 33578 James Linnan, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee,, Florida 32301
The Issue Whether petitioner suffered age discrimination for which Black & Veatch is answerable, when an employee of Black & Veatch objected to petitioner's becoming the safety engineer for M. A. Mortenson Company, the general contractor on a project for the Orlando Utilities Commission for which Black & Veatch was construction manager?
Findings Of Fact Since 1940, petitioner Jack Keels has been in the construction business, "95 percent of it would be . hydroelectric dams along the Columbia and Snake Rivers." (T.13) He has worked as a laborer, carpenter, an iron worker, a craft superintendent, a shift superintendent, a general superintendent, a craft foreman, a shift foreman and a general foreman. Aside from a wealth of practical experience, he has taken "probably 200 or 250 hours of classes on safety and first aid." (T. 13, 14) He has "been acting safety director on five or six jobs" (T.14) and once was responsible for the safety of 300 men. When he began work for M.A. Mortenson Company (Mortenson), however, on the Curtis H. Stanton Energy Center job (Stanton) , a coal-fired plant Mortenson was building for the Orlando Utilities Commission (OUC), Mr. Keels was a crane Coordinator without "assigned responsibility for safety." (T.93) But Mr. Keels offered suggestions about how to improve safety and spoke to Mortenson's Bill King regularly on such topics as safety latches for the hooks, proper nets, electrical splices, man baskets that were not regulation, and the like. When a new crane arrived on the site, Mr. Keels asked the general superintendent where the blocks were to test the crane and was told there were none and they had not been testing the cranes. There were other "flagrant violations" of safety regulations including widespread disregard for the rules requiring workmen to wear hard hats and forbidding them to bring glass containers onto the construction site. Although another contractor at Stanton, Babcock & Willcox, seemed to be doing worse as far as safety, Mortenson's practices were below average in Mr. Keels' opinion. This was also the impression key personnel at Black & Veatch had of Mortenson's performance. As the owner's representative at Stanton, Black & Veatch had invoked OUC's right under "option BC. 4. 1. of the . . . contract," Respondent's Exhibit No. 6, to require Mortenson to appoint a full-time safety engineer, in May of 1984. Bill King was Mortenson's safety director or designated safety engineer, when Mr. Keels started. Bill King left the job in February of 1985, and Mortenson's Mr. Barbato suggested replacing him with petitioner Keels. Mortenson did not propose this formally in writing, but Mr. Barbato explained to Richard F. King, Black & Veatch's project loss control manager at Stanton, that the work had reached a point that Mr. Keels' services as crane coordinator were no longer needed and that naming him safety engineer would make it possible to keep him on. He never told anybody at Black & Veatch about Mr. Keels' considerable background in construction safety. Petitioner and Black & Veatch's Paul William Weida had twice differed with each other on issues of safety: Once Mr. Weida objected to work on a generator pedestal going forward without a handrail in place. At the time, carpenters working for Mortenson were installing concrete forms on top of the pedestal, some distance above ground. Mr. Keels pointed out that they were wearing safety belts, and argued that a handrail could constitute a hazard as they moved around bolting and nailing the forms. The other dispute about which both men testified had to do with a bent crane lattice. The lessor of the crane told petitioner there was no need to replace that section of the lattice, but a representative of the manufacturer told Mr. Weida replacement would be best. Over petitioner's strenuous objection, Mr. Weida insisted that the damaged lattice be replaced. These confrontations left Mr. Weida with the impression that petitioner would be difficult to work with and also made him skeptical about petitioner's commitment to safety, a skepticism to which petitioner vehemently and perhaps justifiably objects. Under the contract between OUC and Mortenson, Black & Veatch had the right, as OUC's representative, to veto any candidate for safety engineer. The agreement provided, "During the life of the contract, replacement personnel will also be subject to interview and approval by the Owner." Respondent's Exhibit No. 7. Mr. Weida objected to Mr. Keels, and Richard F. King backed him up. Neither Mr. Weida's nor Mr. Richard King's opposition to Mr. Keels' being named safety engineer was in any way related to Mr. Keels' age, which, incidentally, was not proven with any specificity. After receiving indications from Black & Veatch that Mr. Keels would not be an acceptable safety engineer at Stanton, Mortenson laid him off, in February of 1985. By November of 1985, Mortenson had finished its work at Stanton.
The Issue Whether Respondent's license to practice architecture should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 481, Florida Statutes, and Chapter 21B-12, Florida Administrative Code, as set forth in the Administrative Complaint, dated July 22, 1981. The Complaint herein alleges that Respondent William L. Juhn should be disciplined for negligence, misconduct, and failing to perform legal obligations in the practice of architecture in that he prepared deficient architectural drawings and specifications for a condominium building at Cocoa, Florida in 1980 which contained inconsistencies, were not in conformity with provisions of applicable laws, and did not clearly and accurately protect the user against misunderstanding with regard to the structural design and other essential parts of the work. It further alleges that the Respondent failed to review the work of the structural engineer and coordinate the architectural and structural drawings and specifications. These deficiencies are alleged to have constituted violations of various provisions of Chapter 481, Florida Statutes, and Chapter 21B-12, Florida Administrative Code. At the commencement of the hearing, the parties submitted a prehearing stipulation (Exhibit 24) wherein Respondent admitted the allegations in paragraphs 1-3 and paragraphs 5-13 of the Administrative Complaint, and agreed that the issues to be tried were those stated in paragraphs 14 and 15 of the Complaint. At the hearing, Petitioner presented the testimony of 13 witnesses and called Respondent as a witness. Respondent testified in his own behalf and presented the testimony of one witness. The parties stipulated to the admission of Exhibits 1-13, and Exhibits 14-25 additionally were received in evidence. Proposed Recommended Orders filed by the parties have been fully considered, and those portions thereof not adopted herein are considered to be either unnecessary or irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent William L. Juhn, Cocoa Beach, Florida, received a bachelor's degree in architecture from Ohio State University in 1951, and has been a registered architect in Florida for a period of 19 years. He also holds an inactive general contractor's license in Florida. He received additional design training as a graduate student at the University of Florida for a period of one and one-half years in the early 1960's, and thereafter opened his office in Cocoa Beach. (Testimony of Respondent, Exhibits 1, 24) For the past ten years, the greater portion of Respondent's work has been in the design of apartment and condominium buildings. For the last five years, Respondent has prepared architectural plans for some twelve projects involving about twenty high-rise buildings, for Univel, Inc., a general contractor in Cocoa Beach. All except one of the buildings were constructed with shear or load-bearing walls as opposed to a structural system calling for "flat plate" slabs and supporting columns. (Testimony of Respondent, Alles) Respondent's usual contractual arrangement with Univel, Inc. was to prepare preliminary and final architectural drawings, but not to hire other professionals such as structural engineers, mechanical or electrical subcontractors, or to supervise construction. Univel's practice was to separately hire all of such professionals for more expeditious preparation of plans and to coordinate and provide overall supervision of the final product. Univel had used Respondent as an architect and certain other professionals on a continuing basis for a number of projects, and plans on these prior buildings had been substantially similar. It was Respondent's practice under his contracts to prepare architectural plans and drawings and furnish copies to the structural engineer for preparation of structural drawings. Any changes in the type of construction were made by Univel and this information passed back to Respondent and other professionals concerned. (Testimony of Respondent, Alles) At an undisclosed date, Univel, Inc. was employed by Palm Harbor West to build a condominium project known as "Harbour Cay" in Cocoa Beach. Univel entered into further contractual relations with Dynamic Construction Company headed by Lawrence Stoner in connection with the project. The owner of Palm Harbor West was Towne Realty, and its representative, Jack Bennett, was assigned to the project to deal with contracts, pricing, and schedules. (Testimony of Alles, Bennett, Stoner) On January 11, 1980, Respondent entered into a contract with Univel wherein he agreed to draw the plans for a five-story, 45-unit, apartment building at Harbour Cay for $4,200. The contract specifically excluded various types of work, including structural, electrical or mechanical engineering, inspection of construction or any involvement in the construction phase of the building. It also provided that conferences with persons other than the representatives of Univel, Inc. were to be excluded from the scope of contractual services, but that the architect would "cooperate with the engineers for the building". Although the contract provided that the plans would be submitted to the "undersigned" for approval as work progressed and on or before each payment request is made, the intent of this provision was relative to the architect's submission of plans to Kenneth Alles, Vice-President of Univel, Inc., rather than submission of other plans to the architect. (Testimony of Respondent, Alles, Exhibit 5) Pursuant to his contract, Respondent commenced work and exchanged information with Harold Meeler, the structural engineer hired by Univel, frequently during the preparation of the architectural plans and structural drawings. Preliminary drawings provided to Meeler showed the height of the building, wall openings, general arrangement of apartments, and the size of the building "envelope" or overall dimensions of the structure. Prior projects that Respondent and Meeler had worked on involved load-bearing masonry walls for exterior walls and masonry partitions between the apartments. Respondent therefore assumed that the method of structural support for the Harbour Cay building would be the same as had been the case in prior projects, and drew his plans accordingly. (Testimony of Respondent, Meeler, Exhibit 9) It was the original intent of Univel, Inc. and the owner, Towne Realty, to construct Harbour Cay using a load-bearing masonry structural system. However, soil testing at the site revealed that the ground was not stable enough to support load-bearing walls unless existing soil was removed and fill placed in the area. It was therefore determined by Alles and Bennett that the structural system should consist of a "two-way" flat plate slab and reinforced concrete columns with no shear walls or masonry interior walls. Respondent's drawings had also anticipated that spread footings would be used, but the change in the structural system led to the use of pilings and pile caps as the most suitable foundation method. It was also decided that metal stud unit partition walls would be used to separate the apartments. Meeler was advised of the required changes and he prepared his structural drawings accordingly. The structural drawings were dated August 10, 1980. Meeler submitted them to Respondent for assembly with the architectural plans, and mechanical and electrical drawings. Structural calculations were prepared by A. M. Allen, an engineer hired by Meeler. (Testimony of Respondent, Alles, Meeler, Bennett, Allen, Exhibits 9, 11, 12) Although not within the scope of his agreement with Univel, Inc., Respondent prepared the mechanical drawings in addition to the architectural drawings at the request of the builder. About the time the plans were completed, Respondent became aware that the structural system had been changed. His only concern at this time was whether the columns would fit within party walls and, after being assured by the structural engineer that they would do so, Respondent did not see the need for changing the architectural drawings since there would be no interference with the fire wall separating apartment units, no interference with plumbing, and no need to rearrange rooms, thereby obviating the need for other than minor changes to the architectural drawings. It was Respondent's intention that the structural changes, as well as any subsequent changes to the original plans would be incorporated into "as built" drawings at the end of construction. However, no revised architectural drawings were ever received by the Cocoa Beach building department. It is not unusual for frequent changes to be made in building plans as construction progresses, but major changes in structural design which are known by the architect prior to submission of plans for a building permit should be incorporated into the basic architectural design. (Testimony of Respondent, Straub, Washer, Exhibits 9, 25) Respondent assembled the various plans and drawings and signed and sealed his architectural and mechanical drawings and specifications on September 24, 1980. The structural drawings and calculations were signed and sealed by Meeler on the same day. The building plans were delivered to the building department of Cocoa Beach at an undisclosed date thereafter for preliminary review. The plans were thereafter approved, subject to changes required in a "plan check" issued by the chief building inspector of the department on October 6, 1980. There were eight items listed by the building inspector, three of which related to the architectural drawings, and three relating to the mechanical drawings. Discrepancies on the architectural drawings required recopying of Sheet 8 since dimensions were not clear on that page, and to provide the location of wood and metal external jams which were not shown on the drawings. Also, it was noted that wood storage enclosures on patios must be of fire treated lumber. The noted discrepancies on the mechanical drawings involved plumbing matters and indicated that a "clean out" was required at the base of the waste system on one sheet, that a three-inch waste stack should be changed to a minimum of a four-inch stack as required under the Standard Plumbing Code, Section 1305.1, and that energy cutoff devices on automatically controlled water heaters, as required under Sections 1213.2 and 1209.5 of the Standard Plumbing Code, had not been provided. Respondent's plumbing drawings were unacceptable to the building department unless the noted modifications had been made. However, the plumbing contractor later provided supplemental plumbing drawings which were used for Harbour Cay in lieu of Respondent's plans in that respect. The plumbing contractor had had similar difficulties on past jobs with plumbing drawings prepared by Respondent. The building official of Cocoa Beach described Respondent's plans as similar to others that Respondent had prepared, and that the Harbour Cay drawings were an "average set" from which a building could be constructed, but "you would have to know exactly what you were doing." (Testimony of Straub, Hollifield, Haber, Exhibits 8, 13, 14). On October 28, 1980, Dynamic Construction Company, by Lawrence Stoner, President, applied for a building permit from Cocoa Beach to construct the Harbour Cay condominium. On or about November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., the owner of Harbour Cay, whereby Univel agreed to construct a condominium project to be known as Harbour Cay. On December 5, 1980, the City of Cocoa Beach building department issued Permit No. B5263 authorizing construction of Harbour Cay. At the time the permit was issued, the 1979 edition of the Standard Building Code was in effect in Cocoa Beach, having been adopted by the City on October 18, 1979. (Testimony of Straub, Alles, Exhibits 4, 6, 7, 24). Construction commenced on the project thereafter and the basic structure had been substantially completed when, on March 27, 1981, the building collapsed, killing eleven persons and injuring approximately twenty-three persons. (Exhibits 10, 24) Respondent's drawings and specifications for the Harbour Cay building were reviewed in the summer of 1981 by Norman Washer, an architectural consultant employed by Petitioner. He determined that the plans and specifications were deficient and substandard in a number of respects under the requirements of Subsection 481.221(5), Florida Statutes. He further expressed the view that Respondent had provided little more than drafting services since he did not assume the leadership role in the coordination of architectural design, and that such failure was inconsistent with certain terms of his contract with Univel. Thereafter, on July 22, 1981 Petitioner filed its Administrative Complaint against Respondent, alleging various deficiencies and inconsistencies between the architectural drawings and structural drawings, and specifications. However, the specific inconsistencies and deficiencies were not set forth in the Complaint. (Testimony of Washer, Exhibit 17). The following findings relate to the various deficiencies and inconsistencies which Petitioner sought to establish at the hearing: Structural System - As heretofore found, major changes were made in the structural system after the architectural drawings had been prepared. Although it is not necessary that architectural drawings reflect minor structural detail, the basic type of framing system should be reflected in such drawings to ensure that the physical dimensions of the structural elements are shown for clarity to users of the plans, that the proper dimensions of structural elements are shown, and that the various parts of the building will fit together. In the case of Harbour Cay, Respondent, once apprised of the structural change, did not modify his architectural drawings to conform with the revised structural design. As a consequence, the plans submitted for permit depicted two different framing systems. Respondent did not show columns on his architectural drawings even though they were a part of the structural framing system. Columns should have been shown in order to make clear whether they would interfere with other elements in the building. His drawings further created confusion by the fact that he had used "shading" to depict masonry exterior and unit separation walls since this method had been used in prior designs for Univel, and was understood by the contractor. However, since Harbour Cay was not finally designed structurally to include load-bearing masonry walls, the use of masonry could have overloaded the structure and created a safety hazard. The structural calculations assumed that all interior walls would be constructed of dry wall on metal studs rather than masonry. In fact, the building contractor used columns in construction of the building and their location did not cause any particular difficulties resulting from their presence and location. The building contractors did not have any difficulty in using the plans and drawings because the structural drawings reflected the use of columns, and therefore it was recognized that interior walls would not be of the load-bearing type. The contractors rely on structural drawings to construct the building and when the frame, or skeleton, of the building is completed, they then find the architectural drawings to be important. The contractors had always used metal studs for buildings with columns because they were of lighter material than masonry. Respondent's architectural drawings reflected a note which disclaimed an intent to show structural information therein, and referred the user to the structural drawings. However, such a disclaimer cannot relieve an architect of his basic obligations to prepare accurate drawings. (Testimony of Power, Washer, Olson, Alles, Bennett, Stoner, Respondent, Exhibits 9, 12, 16) Roof Slope - A roof slope was shown on the architectural drawings, but there was no information as to the method of creating such a slope. Although the structural drawings also did not show such method, it could have been accomplished by sloping the concrete roof slab, or by means of urethane foam. The contractor originally planned to use concrete, but this was later changed to the use of foam by means of a foam machine of the contractor which had been used on prior occasions. To be complete, building plans should reflect the manner in which the roof slope is to be created because if accomplished by sloping of the concrete slab, the structural drawings should so reflect this fact. (Testimony of Bennett, Stoner, Olson, Washer, Power, Exhibit 12) Roof Hatch - Although the architectural drawings showed a detailed sketch of a roof hatch, they gave no information as to its location. Respondent was of the opinion that it could be located in the corridor, but the problem later became moot when field changes eliminated the necessity of a roof hatch and provided for a stairway to the roof. However, since such a roof opening would be made in the concrete slab, its location has structural significance and should have been shown in the architectural drawings. (Testimony of Stoner, Respondent, Power, Washer, Olson, Zeller, Exhibits 9, 12, 20) Roof Parapet - Respondent's architectural drawings show the size of an intended roof parapet, but do not show necessary details for support of the parapet, such as anchorage and reinforcement, or the material to be used in its construction. This is necessary information in order that the structural engineer can design the required support. (Testimony of Washer, Stoner, Wagner, Zeller, Power, Exhibit 12) Lintels - Respondent detailed only mailbox lintels in the architectural drawings, and not the lintels over windows and sliding glass doors. It is important to show the size of such openings in a load-bearing wall structure on the architectural drawings, but is not necessarily required to be on the structural plan if the walls are not load-bearing. The Harbour Cay contractor found no need for this type of detail on the plans in view of the fact that there was a standard practice of using precast "off-the- shelf" concrete lintels in Univel's projects. (Testimony of Meeler, Olson, Stoner, Wagner, Zeller, Washer, Respondent, Exhibits 9, 12) Miscellaneous Discrepancies Stairway and Balcony - Stairway and balcony details, to include handrail construction and attachment, were not shown on the architectural drawings. Respondent believed that since the stairs were shown on the structural drawings as made of reinforced concrete, this properly was a matter to be left to the structural engineer. However, in the opinion of experts, these are safety matters which properly should be shown in architectural drawings. (Testimony of Respondent, Wagner, Olson, Washer, Exhibits 9, 12, 21) Window Sizes - There was a variation in window sizes in the architectural drawings. This was due to a subsequent change by the builder from sliding glass windows to single hung windows, and it was contemplated that the changes would be reflected on "as built" drawings. (Testimony of Washer, Zeller, Stoner, Exhibit 12). Door Schedule and Location - Although Respondent showed details for both metal and wood doors in the architectural drawings, he did not include a door schedule to show the location and particular type of door to be utilized. Respondent left this up to the contractor who, based on prior experience, determined where and what kind of doors should be used at various locations. Although location of jam detail was not shown, Respondent intended that his door jam detail be applicable whether metal studs or wood studs were used. The lack of specificity in this regard was the subject of inquiry by the city building department on its "plan check". (Testimony of Washer, Wagner, Respondent, Burke, Olson, Exhibits 8, 9, 12) Incomplete Index of Drawings, Lack of Fixture, Finish, and Allowances Schedules, Closet Shelves - Respondent conceded that he had failed to provide a complete drawing index by omitting structural drawings due to the fact that tracing for the structural work was not given to him until the builder was requesting completed plans for submission to the building department. Omission of detail information concerning fixtures, shelves, cabinets, floor covering and appliances, was due to past practice between the architect and the builder whereby the cost and types of these items would vary depending upon desires of potential condominium purchasers and current economic conditions. This is not an unusual practice in the condominium building industry, in order to ensure profitability of sales. (Testimony of Washer, Respondent, Stoner, Zeller, Bennett, Exhibits 9, 12) Screen Supports - Types of screen supports were not shown in the architectural drawings because these were to be proprietary items predesigned by the manufacturer. In such a situation, it is preferable to show the type required for safety purposes, particularly with regard to handrails. (Testimony of Washer, Wagner, Zeller, Respondent, Exhibit 12) Roof Coating and Insulation - Respondent's plans called for a "tar and gravel roof". Although tar is infrequently used today, the term is generally acknowledged to include an option for either a tar or asphalt roofing system. Respondent noted two inches of roof insulation on his drawings, but did not specify the "R" value or type of material. The computations for such values were to be included under Respondent's contract, and he assumed that since Univel owned its own polyurethane foam insulation spray machine, that such material would be used on this project as it had in the past. (Testimony of Washer, Zeller, Stoner, Exhibits 9, 12) Specifications - Although Respondent's specifications, as his drawings, were prepared with a load-bearing structure in mind as originally contemplated, no revision was made to take cognizance of the changed framing system. Specifically, with regard to concrete strength and masonry wall reinforcing, they were not in strict accord with the structural drawings. However, the specifications stated that they were to be used only if there was no other indication of concrete strength. The structural drawings indicated vertical reinforcement of masonry while the specifications called for additional horizontal reinforcement. (Testimony of Washer, Respondent, Power, Exhibits 9, 12) Ordinarily, tradition and practice in the architectural profession provides that the designing architect of a particular building or project is to serve as the design coordinator among various other professionals who contribute to the overall design, including structural, mechanical and electrical engineers. The normal practice in such instances is for the architect to either employ the other professionals or to oversee their work and supervise construction to its conclusion. The purpose of this requirement is to ensure that the primary design professional who has specified the basic requirements for the building in question, and is therefore in the best position to ensure compliance with the basic design, can reconcile any conflicts or discrepancies among the various disciplines. The practice also ensures compliance with various local laws and building codes for the safety and welfare of the public. It is ordinarily necessary that all work be coordinated so that the various parts of the building are compatible and achieve an integrated and harmonious result. However, the extent of an architect's services properly can be limited by his contract with the owner or builder, particularly in the case of condominium projects. In a competitive economy, owners are desirous of controlling their own projects to the greatest extent possible in order to ensure expeditious design and construction, and to conserve costs. It is not uncommon in this field for an architect to provide only architectural drawings, with the builder providing for the procurement of engineering services and coordination of the overall result. In such instances, the engineering professionals are not subject to direct oversight by the architect. In fact, attempted control by an architect over other licensed professionals without contractual duties imposed for same can create friction and hamper successful completion of the project. In the final analysis, the building contractor is immediately responsible to the owner for proper construction, and the owner has ultimate control over all phases of the project. The arrangements for construction of Harbour Cay involved a somewhat unusual situation, whereby Respondent contracted with the contractor rather than the owner, and limited his services primarily to preparation of architectural drawings with the provision that he would "cooperate" with the engineers. The other professionals were hired directly by Univel who, together with the other contractor, Stoner, and the owner's representative, Bennett, coordinated the overall project. This arrangement was deliberately chosen in order to provide increased efficiency and speed in accomplishing the project. Although they considered that Respondent had some responsibility in the coordination of the original plans for Harbour Cay, a number of changes were made without always consulting him first. It is found that, although Respondent fulfilled his contractual obligation in "cooperating" with the various engineers in the preparation of design plans, he did not fulfill his basic responsibility to conform his architectural drawings to known changes in the building's structural system when it had been brought to his attention prior to submission of the plans to city officials for a building permit. (Testimony of Wagner, Washer, Burke, Zeller, Power, Olson, Alles, Bennett, Stoner, Respondent, Exhibit 15)
Recommendation That the Board of Architecture suspend the license of Respondent William L. Juhn as a registered architect for a period of six months. DONE and ENTERED this 29th day of April, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1982. COPIES FURNISHED: Wings Slocum Benton, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Herbert R. Kanning, Esquire 1500 American Heritage Life Building Jacksonville, Florida 32202 Herbert Coons, Jr. Executive Director Board of Architecture 130 North Monroe Street Tallahassee, Florida 32301
The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 30th day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
