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.
The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact The Respondent, Sergio J. Alcorta (Alcorta), is licensed by the Department of Business and Professional Regulation (Department) as a professional engineer, license number PE 0014464. Alcorta is not licensed by the Department as a contractor. Alcorta has a company called mrf building systems, inc. Alcorta d/b/a mrf building systems, inc. is not listed in the records of the Contractors Section, Dade County Building and Zoning Department as a certified contractor doing or contracting for work in the building trades in Dade County. Hurricane Andrew, which hit the Miami area in August, 1992, damaged the home of Kenneth and Elizabeth Quinn. A friend of the Quinns referred them to Alcorta for assistance. By letter dated September 15, 1992, Alcorta outlined a discussion he had with the Quinns. The letter stated: Per our discussion, I will assist you in dealing with your insurance carrier and other construction workers to ensure that all hurricane damages are accounted for and the work is properly performed. I will prepare an initial damage evaluation report of all damages for the insurance adjuster and facilitate on your behalf the transfer of funds from your mortgage holder to you and to any pertinent party. My fees will be $150 for the initial evaluation and $500 at the end of construction work where you require my assistance. By letter dated September 16, 1992, Alcorta advised the Quinns of his findings concerning the damage to their residence. The engineer's report was prepared on the letterhead of Nu-Tech Engineering Services. Alcorta contacted a general contractor to see if the contractor could perform the work required to repair the Quinn's house. The contractor advised Alcorta that only a roofing permit would be required for the job and that because of the work he was already committed to do, he did not know when he could complete the repairs. Alcorta and Mr. Quinn signed a proposal on mrf building systems, inc. letterhead dated September 29, 1992. The proposal provided: We propose to furnish all materials, labor, tools, and equipment to repair the storm damaged dwelling at the above referenced location as follows: Roof recovering with shingles and ply- wood sheathing repairs $7,500. Structural repairs to concrete columns, stucco repairs as necessary $2,500 Enclosing terrace with new exterior walls and french doors $7,500 Retiling terrace room and pool area $2,000 Securing cabinets and other interior damage $1,000 Removal, installation of solar collector $500 New terrace central air conditioner $2,000 Exterior fencing $3,000 Total repair estimate $26,000 TERMS: One third down payment upon execution of the contract. Partial payments upon completion of work segments. Estimated time for completion of job: 21 days. On mrf building systems, inc.'s letterhead dated September 30, 1992, Alcorta provided Ms. Quinn with an estimate for interior painting, taking off the roof mounted solar collector and reinstalling it on the new roof, replacing roof insulation, structural epoxy repair, and replacing torn vent screens. Alcorta was paid approximately $14,650 by the Quinns on this project. Alcorta in turn paid for some of the materials and labor used on the project. The checks from the Quinns were made payable to Alcorta, not to mrf building systems, inc. By letter dated October 2, 1992, on mfr building systems, inc., letterhead, Alcorta forwarded a copy of the contract with the Quinns to the Quinn's mortgage company advising them that the Quinns had given him a down payment of $4,000 and listing the anticipated completion dates for the various tasks to be performed. Alcorta bought supplies and had laborers come to the site to perform work. There was no licensed contractor on the job. The only building permit pulled on the project was obtained by Elizabeth Quinn, the homeowner. The building permit did not carry the disclosure statement required by Section 489.103(7), Florida Statutes. Alcorta witnessed Ms. Quinn's signature on the application for building permit. Alcorta did not advise the Quinns that they were to act as contractors per Section 489.103(7), Florida Statutes. The Quinns did not supervise the construction on the project but relied on Alcorta to supervise the work. Alcorta was not an employee of the Quinns. The Quinns experienced problems with the roofing work performed pursuant to the contract with mrf building systems, inc. The roof leaked, requiring the Quinns to have the roof replaced at a cost of $10,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Sergio J. Alcorta violated Section 489.127(1)(f), Florida Statutes (1992 Supp.), and assessing an administrative penalty of $3,000. DONE AND ENTERED this 20th day of November, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1996. COPIES FURNISHED: Donna Bass, Senior Attorney Department of Business and Professional Regulation Division of Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Sergio J. Alcorta Nisky Center, Mail Box 401 Charlotte Amalie St. Thomas, Virgin Islands 00802 Lynda Goodgame, Genral Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor. Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.
Findings Of Fact The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c). Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.
Recommendation Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved. DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986 COPIES FURNISHED: 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 A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maxwell G. Battle, Esquire 8204-A West Waters Avenue Suite 350 Tampa, Florida 33615 Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD MARGARET K. ROBERTS, License No. CB-C031970 Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL REGULATION Respondent. /
The Issue Whether Respondent's license as a Certified General Contractor should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set for the in the Administrative Complaint dated July 17, 1981. This case arises from an administrative complaint filed by the Department of Professional Regulation, seeking to take disciplinary action against Respondent Lawrence M. Stoner, a certified general contractor, for alleged derelictions in connection with the construction and subsequent collapse of a condominium at Cocoa Beach, Florida in March, 1981. Although this case was consolidated for hearing with the case of Department of Professional Regulation, Construction Industry Licensing Board v. Bruce Alles, Case No. 81-2057, the parties announced at the commencement of the hearing that they had elected to hear this case separately. This case was originally noticed for hearing to be held on November 2, 1981. Petitioner filed a motion for continuance of the hearing on October 23, 1981 based on additional information that had been received subsequent to the filing of the Administrative Complaint. However, the matters sets forth in the motion were not considered to constitute good cause for continuance and the motion was denied. The petition alleges that although a firm named Univel, Inc. entered into a contract with another company, Palm Harbor West, Inc. to construct the condominium project in question, Univel hired Respondent to pull the building permit in the name of the corporation for which he was the qualifying agency, Dynamic Construction Company, Inc. It further alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it alleges that Univel supervised the construction of the building and that Respondent exercised no such function. Further, it is stated that the building collapsed in March, 1981 killing eleven persons and injuring twenty- three others, and that violations of the Southern Standard Building Code in the improper placement of steel rebars in columns, and inadequate thicknesses of floor slabs contributed to the collapse. Thus, the petition alleges grounds for disciplinary action against Respondent for acting as a contractor in the name of another, failing to notify Petitioner of his affiliation with another business organization, and failure to supervise the project. It also predicates discipline upon willful or deliberate disregard in violation of the applicable building codes in covering reinforcing steel without an inspection and deviating from approved plans and drawings. In his answer to the complaint, Respondent averred that pursuant to an agreement between his firm and Univel, Inc., his services were provided to Univel to serve as the general contractor for the project and that he did so, exercising proper supervision over construction, and that the building was built according to its engineering plans and drawings and applicable codes. The parties entered into a pre-trial statement of the issues as follows: Was there a duty under Florida Statutes 49.119(3)(b) for LAWRENCE M. STONER to notify the Department of Professional Regulation that he intended to affiliate with Univel, Inc. to do the Harbor Cay job? Did LAWRENCE M STONER act in the capacity of a contractor under any name other than the names set forth in his contractor's certificate? Did LAWRENCE M STONER have a duty to supervise and be responsible for the Harbor Cay project and, if so, did he supervise it and was responsible for that job? Did LAWRENCE M STONER willfully or deliberately disregard Section 108.2 of the Southern Standard Building Code by covering steel in concrete columns on the Harbor Cay job prior to inspection, or did he willfully and deliberately disregard Section 114 of the Southern Standard Building Code by failing to follow plans and specifications calling for an eight inch slab thickness and/or by improperly placing the steel rebar in the concrete columns? At the hearing, Petitioner presented the testimony of fourteen witnesses and submitted fourteen exhibits in evidence. Respondent called three witnesses and submitted five exhibits. Respondent's Exhibit 5 is a late-filed exhibit received by agreement of the parties. A Proposed Recommended Order filed by the Petitioner and Respondent's Summation have been fully considered and those portions thereof which have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact Respondent, Lawrence M. Stoner, is a certified general contractor holding license numbers CG C005313 and CG CA05313, and was so licensed at all time pertinent to this proceeding. He is the qualifying agent for Dynamic Construction Company, Inc., and Atlantic Contracting, Inc., Cocoa Beach, Florida (Testimony of Respondent, pleadings, Petitioner's Exhibit 4) Respondent has been the president of Dynamic Construction Company, Inc. since 1973. He formed Atlantic Contracting, Inc. in 1980, but it has been inactive and has never done business as a general contractor. Respondent is the sole employee of Dynamic Construction Company, Inc. Dynamic occupies one office in the offices of Univel, Inc., a general contracting firm in Cocoa Beach, Florida. Dynamic does not pay rent for the office, does not display company signs, nor does it have a telephone in its name. For the past three or four years, Dynamic has been associated with Univel according to an arrangement between Respondent and Kenneth Alles, Vice President of Univel, whereby Dynamic provided Respondent's services to Univel for the general supervision of construction projects. Under their oral agreement, the owner of a particular project would pay Dynamic a weekly sum through Univel for Respondent's services, and bonuses upon completion of a particular job for good performance. Respondent and Alles considered this arrangement to constitute a joint venture between the two general contracting firms. During the period Respondent was affiliated with Univel, he devoted his full time to its work which consisted of about a dozen projects. After approximately the first year of their association, Respondent began pulling the construction permits for the various jobs in the name of Dynamic Construction Company, Inc. Univel had a certified general contractor, David Boland, as its qualifying agent during that period until some time in late 1979. Additionally, Bruce Alles, a certified general contractor who is the son of Kenneth Alles, became a qualifying agent for Univel in the summer of 1979, but was inactive from about April, 1980 to April, 1981. In fact, from the time he became the qualifying agent, Bruce Alles did not perform any work as general contractor for Univel except one small remodeling job. Respondent has been in the construction business for approximately twenty years. The records of the Construction Industry Licensing Board fail to reflect that Respondent ever applied to be a qualifying agent for Univel, Inc., nor did he ever inform the Board of any intended affiliation with that firm. (Testimony of Respondent, K. Alles, B. Alles, Petitioner's Exhibits 4, 8) On November 1, 1980, Univel, Inc. entered into a contract with Palm Harbor West, Inc., whereby Univel agreed to construct a 118-unit condominium project to be known as Harbour Cay Condominiums at Cocoa Beach, Florida. The work was to be conducted in three phases, the first phase consisting of 45 units, the second 55 units and certain villas, and a third phase consisting of 18 villas. Completion of the work was scheduled for April 30, 1982. The contractual cost of the Phase I portion of the project was set forth in the contract as $2,283,670, including a contractor's fee of 12% of such cost. The contract provided that payment of the contractor's fee was contingent upon provisions for payment of Towne Realty, Inc. under a separate agreement between that firm, Palm Harbor West, Inc., Ken Alles, and Scott Alles. Article 16 of the contract provided that each party shall approve the cost of the other to be charged to the project and in the event one party objected to such cost, the objecting party should be allowed to substitute its subcontractor, personnel or material supplier at a lesser cost, provided it did not delay completion of the project. On February 27, 1981, Dynamic and respondent as "Contractor" entered into an agreement with Palm Harbor West, Inc., Kenneth Alles, individually, and other corporations as "Developers" wherein it was agreed that the "Developers" would hold the "Contractor" harmless from third party claims arising from work performed by the Developers; personnel or agents on various projects, including Harbour Cay. (Petitioner's Exhibit 3, Respondent's Exhibit 5, Testimony of K. Alles) On October 28, 1980, Respondent applied to the City of Cocoa Beach, Florida for a building permit in the name of Dynamic Construction Company, to construct a five-story, 45-unit condominium whose owner was listed as Palm Harbor west. The listed project name was "Harbour Cay" and the architect or engineer was shown to be William Juhn. The building department, City of Cocoa Beach, issued the requested permit number B5263 on December 5, 1980. Permit conditions included the statement "All construction shall conform to the Southern Standard Building Code and other requirements of the City of Cocoa Beach, Florida." (Testimony of Respondent, Straub, Petitioner's Exhibits 7, 11) By Ordinance No. 608, dated October 18, 1979, the City of Cocoa Beach adopted the Standard Building Code as promulgated by the Southern Standard Building Congress International in 1979. Section 1601 of the Standard Building Code provides that all structures of reinforced concrete shall be designed and constructed in accordance with he provisions of Building Code Requirements for Reinforced Concrete, ACI 318 issued by the American Concrete Institute. Although Section 114 of the Standard Building Code purports to make it a misdemeanor for any person to violate the code or construct a building in violation of a detailed statement or drawing submitted and approved under the code, the Cocoa Beach Building Code, Article 1, Section 6-3 provides for penalties under a separate city ordinance for violating provisions of the standard building code or of the city building code. (Testimony of Straub, Petitioner's Exhibits 5B-C, 6, 14) Section 106.5 of the Standard Building Code provides that whenever the work to be covered by a permit involves construction under conditions which, in the opinion of the building official, are hazardous or complex, the building official shall require that the architect or engineer who signed the affidavit, or made the drawings or computations, shall supervise such work and be responsible for its conformity with the approved drawings. Pursuant to this provision, the building official of Cocoa Beach determined that the Harbour Cay project was complex and that he did not have sufficient personnel to provide inspection services. Accordingly, he made arrangements with Respondent and the owner's representative at the site, Jack Bennett, to have the project's structural design engineer, Harold Meeler, perform such services and provide daily inspection reports to the City. Meeler assumed such functions under an oral agreement with Univel, Inc. He had either inspected or assisted city inspectors to inspect all Univel projects since 1977. (Testimony of Straub, Meeler, Respondent's Exhibit 4) Two field superintendents supervised the on-site work at the Harbour Cay project One of these, Fred W. Rustman, was employed by Univel, Inc. and had fifty years experience. The other field superintendent was Patrick T. Alles, brother of Kenneth Alles, who was employed as a site superintendent by Towne Realty, Inc. a firm which owned Palm Harbor West, Inc. His immediate supervisor was Jack Bennett, also employed by Towne Realty, Inc., who served as the "owner's representative." Alles' function was to supervise the concrete and form work, and Rustman coordinated the balance of the job and approved vendor's bills. Rustman looked upon Bennett and Kenneth Alles as his immediate supervisors. Bennett primarily did office work such as pricing, insurance matters, time schedules, and the like. He described himself as the "anchor man" of the project who could always contact the other supervisory personnel because he stayed in place. Bennett conferred with Respondent on a daily basis and was of the view that Respondent had ultimate responsibility for the project because he was the general contractor. Kenneth Alles felt that he had ultimate responsibility for construction decisions for Univel, Inc. on the project, but looked to Respondent as having ultimate overall construction responsibility. (Testimony of Rustman, Bennett, K. Alles, Henderson, Petitioner's Exhibit 12, Respondent's Exhibit 1) Respondent's functions with respect to the Harbour Cay project were varied. Although he relied upon the field superintendents for immediate supervision of construction, he conferred with them periodically for resolution of problems. Ordinarily, general contractors do not perform immediate supervisory functions at the construction site. Respondent reviewed subcontractor bids and recommended awards to be made by Univel, Inc. Univel, Inc. supplied construction personnel for the project. Respondent arranged for rental of equipment, and coordinated with the project engineers, architect, and city officials. He approved payments to subcontractors, and ensured the payment of other bills submitted by suppliers which had been approved by the field superintendents. Problems that arose were usually resolved by joint decisions of Bennett, Kenneth Alles, and Respondent. Respondent's office was approximately 1,000 yards from the job site and he made it a practice to visit the site at least three times a week. (Testimony of Respondent, K. Alles, Bennett, Rustman, Lilley) Harold Meeler conducted frequent inspections of the project and rendered periodic reports reflecting such progress, commencing with garage construction in October, 1980. He was not aware of the identity of the general contractor and generally dealt with Bennett and the field superintendents. His general practice was to inspect in the late afternoon and dictate his reports in a tape recorder on site. The reports were later transcribed and submitted to Bennett. The city building officials expected these reports to be rendered on a weekly basis to him, but they were frequently slow in reaching his office. None of the reports included any indication of construction deficiencies, but merely related when the various construction stages had been completed. Testimony of Meeler, Bennett, Rustman, Straub, Respondent's Exhibit 3) The construction schedule followed at the Harbour Cay site was to prepare reinforcing steel bars for the columns on Mondays and Wednesdays by securing them with steel stirrups on the ground. They were then placed in position within the forms for the columns. Although the specifications and drawings did not show how to place the bars, the number per column ranged from 4 to 8 bars as called for in the design specifications. It was noted by the reinforcing steel subcontractor that the columns were too narrow to adequately space 4 bars per column. However, the only way in which they could be and were placed was to align 4 bars down each side of the column. Generally, the design drawings for a construction project show detail as to spacing. It was noted that some of the bars at the Harbour Cay site were overbent. Meeler inspected the bars on the ground and after the concrete columns had been poured, but noted no deficiencies in his reports. However, he did give instructions on many occasions on placement and addition of bars. He was able to check the position of the bars in the concrete columns by reason of the fact that they extended out of the column into the next floor. The concrete floor slabs were poured two days a week after the steel had been set and the columns poured. Section 108.2(e) of the Standard Building Code provides that reinforcing steel of any part of a building shall not be covered or concealed without first obtaining the approval of the building official, the designing architect, or engineer. (Testimony of Rogers, Meeler, Bennett, P. Alles, Petitioner's Exhibits 1-2, 5a) Patrick Alles, one of the field superintendents, did not start on the job until March 9, 1981, at which time the building had been completed through the third floor. On that day he observed hairline cracks in the slabs at the top and bottom of the columns. He was concerned and notified Meeler and Bennett of the existing condition. Meeler discussed the matter with A.M. Allen, a structural engineer who had actually done the design drawings, who joined him in an inspection. Allen told Meeler that there appeared to be no structural damage, but Alles thereafter added an extra line of 4 x 4 limber supports between the floors to reshore the building. Respondent was made aware of the problem but did not actually participate in the inspection and subsequent remedial work. (Testimony of Meeler, P. Alles, Respondent) On March 26, 1981, a surveyor for A. M. Allen who had worked on the Harbour Cay building "layout", was on-site and observed that several of the building columns between the fifth floor and the roof line appeared to be deflected, and that one of the columns had a sag. He called this to the attention of Patrick Alles and they estimated the amount of deflection. Alles was of the opinion that one corner column was about 3/4" out of vertical on the north corner, and the surveyor estimated a 1 1/4" deflection. No action was taken with regard to the condition of the columns (testimony of P. Alles, Adams) Meeler's last report, dated March 28, 1981, noted that on March 27th the roof slab was being poured. Subsequently the building collapsed and, shortly thereafter, Petitioner employed a registered professional engineer to conduct an investigation into the cause of the collapse. The engineer, Oscar Olsen, was accepted as an expert in structural engineering. He commenced his investigation several days after the collapse, at which time most of the debris had been removed from the job site. He inspected the broken slabs, columns, positions of rebar, thickness of slabs, and the steel stubbed out of the floor from the foundation and column locations which were still intact to determine the placement of steel, and number and size of bars. Comparing these with the specifications, he made an analysis of the design. He concluded that the primary cause of the building's collapse was a punching shear failure of the slab around the columns due to insufficient thickness of the slab, in combination with rather small columns. He attributed this deficiency to design failure. Although the design called for 8" thick slabs he found that in most cases the slabs were under the required eight inches varying from approximately 7 1/2 to 7 5/8". "Shear" is a tendency for the slab to separate from the column and just slide down it. Although the slabs did not all meet the thickness requirements of the specifications, this fact would have had only a small influence on the building failure. The actual shear stress exceeded allowable tolerances by two to three times and therefore the slabs should have been designed to be about ten inches thick. Steel bars in the columns coming out of the first floor level in several cases were considerably out of position in that they were too closely grouped, and in some cases, they were located completely over to one side of the column and in contact with the form. Such improper spacing violated Section 7.6.3 of the American Concrete Institute Building Code Requirements for reinforced concrete (ACI 318-77) in that the clear distance between longitudinal bars was not at least one and a half times the diameter of the bar, or one and a half times the diameter of the bar, or one and a half inches. The spacing also violated Section 7.6.4 of the Code which requires that the clear distance limitation between bars applies also to the clear distance between a contact lab splice and adjacent splices or bars. This violation is based on bars projecting out of the slabs that lapped bars in the column cage that came down from above, and did not maintain the same clear distance between adjacent groups or bars. The ACI Code, in Section 1.1.1, states that the Code provides minimum requirements for design and construction of reinforced concrete structural elements of any structure erected under requirements of the general building code, of which ACI Code forms a part. The improper placement of the reinforcing bars in the columns was not the initial cause of the building collapse, but could have aggravated the situation to some degree. Three of the columns were designed in such a manner that it would have been impossible for a contractor to meet the required ACI specifications, but the rest of them could have been done properly, although it would have been difficult to do so. Although the spacing problems can arise from the size of the reinforcing bars as designed by the engineer, it is normally the contractor's ultimate responsibility to ensure that the steel is properly placed and, if a problem in placement arises, he should call the matter to the attention of the engineer. The fact that the Harbour Cay building had some variation in the plumb line on the fifth floor was not a contributing cause to the building's failure. (Testimony of Olsen, Hunter, Petitioner's Exhibits 10, 13-14) The holes left by some 30 random concrete cores taken from slabs at the Harbour Cay site were measured by Warren Deatrick, Chief Engineer and Vice President of Universal Engineering and Testing Company, who is also the President of Orlando Concrete Contractors, Inc. The measurements showed that only three of the 30 cores were less than eight inches in thickness, being 7.5", 7.8", and 7.9" respectively. He noted that a number of other cores had been taken by others in the balcony areas which were designed to be approximately 1/2" less thick than the main floor slabs. Some of the main floor core holes measured more than eight inches in thickness, up to 8.4". Of the three situations involving less than eight inches in width, only the 7.5" core holes represented an excessive tolerance within reasonable construction practices, and it could have been caused by an inadvertent deflection or depression at the particular point. Due to the manner in which concrete settles in the forms and is troweled, there are always areas that tend to produce an uneven surface. Concrete contractors uniformly point out problems in steel placement to the design engineers and follow his instructions as to whether or not to change its position because he is the person who knows what is necessary according to the design, and is familiar with the basic allowable tolerances. (Testimony of Deatrick) On October 13, 1980, prior to the issuances of the building permit for the Harbour Cay project, the city engineer of Cocoa Beach reviewed the structural calculations for the project and found that they were in accordance with Chapter XII of the Southern Building Code Congress. (Respondent's Exhibit 2)
Recommendation That the Construction Industry Licensing Board suspend the certified general contractor's licenses of Respondent Lawrence for a period of six months pursuant to Section 489.129(1)(j), Florida Statutes, for violation of Section 489.119(2)(b), Florida Statutes. DONE AND ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. Post Office Box 1386 Tallahassee, Florida 32302 Elmo R. Hoffman, Esquire 215 East Central Boulevard Orlando, Florida 32801 Mr. James K. Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32301
Findings Of Fact The Respondent Frank H. Suesz is a licensed general contractor having been issued certificate number CG C020463. On July 21, 1981, the Respondent Suesz submitted an application to the Petitioner Department of Professional Regulation to take the certified contractors' examination as a general contractor. On the application, the Respondent Suesz stated that he had four (4) years of construction experience, one (1) year of on-the-job-supervisory experience, and some experience in the construction of buildings in excess of three(3) stories in height. The Respondent's work experience' was verified by Ethel C. Douglas, his mother-in-law and a building owner. Douglas' verification on the Respondent's application was notarized. The experience claimed by the Respondent on his application involved his prior position with Steel Systems Construction Company, a seller and erector of pre-engineered metal buildings. Steel Systems is owned by Richard Spinnenweber, who is also the Respondent's cousin and the complainant in this case. Steel Systems holds the franchise for American Steel Buildings while the Respondent's company, ABCO Construction, Inc., has acquired the franchise for Pre-Engineered Steel Buildings. Since the Respondent's resignation from Steel Systems, his relationship with his cousin has been anything but cordial. The Respondent and Spinnenweber have engaged in litigation concerning the termination of their former relationship and are now active business competitors through their respective companies. 1/ The Respondent's company sells and erects pre-engineered, prefabricated steel buildings that are built in a factory, shipped to the job site and erected. One witness for the Petitioner analogized the construction of these buildings to "erector sets". (See Tr. at 43) Since being certified in 1981, the Respondent's company, ABCO Construction, Inc. has successfully completed approximately 40 construction projects including a 45,000 foot roof for Pan Am at Miami International Airport, a 10,000 square foot marina warehouse in Key Largo, and has worked for the U.S. Customs Service and the Air Force. No evidence was presented that any of the Respondent's jobs completed since he became certified, were substandard or present a threat to the public health, safety and welfare. Permits were pulled on these projects and building inspections were passed when required. Prior to moving to Florida, the Respondent Suesz had varied construction experience which including supervising the construction of building additions, a shipping storage warehouse and a factory for Beckley Perforating Company, which is headquartered in Garwood, New Jersey. This testimony is corroborated by a letter dated May 13, 1982, from Frank P. Marano, President of Beckley, which also noted the Respondent's ". . .unusual competency in all areas of responsibility as to construction, maintenance and expansion." [See Petitioner's Exhibit 3(x).] Additionally, the Respondent has some construction experience in excess of three stories, which dates from his work with his father on apartment buildings located out of state. The extent of the Respondent's experience which dates from the 1940s, is set forth in detail in Respondent's Exhibit 2. Although his position at Steel Systems was primarily sales, the Respondent Suesz also worked in the field when necessary. 2/ While employed by Steel Systems, the Respondent supervised construction of two large dock roofs in 1978 and 1979, plus three buildings in 1980 and 1981 for the Homestead Tomato Packing Company, Inc. By letter dated May 13, 1982, Rosario Strano, company owner, commended the Respondent for his work and stated that he intended ". . .to negotiate with him for all future requirements for buildings, dock roofs, etc." [Petitioner's Exhibit 3(y).] In early 1989, the Respondent Suesz built an addition to the Hialeah factory of Brice-Southern, Inc. His supervision of the project included pouring and finishing the floor slab. Philip H. Brice recommended the Respondent's work via letter dated May 13, 1982, and stated ". . .that he would give him the opportunity to do our future requirements." Petitioner's Exhibit 3(z).] According to Gerald Antel, Trustee, Sunshine Skateway, the Respondent supervised the construction of a $250,000 roller rink. [Petitioner's Exhibit 3(aa).] Finally, in late 1980 and 1981, the Respondent supervised construction of a 16,800 square foot building for Woal Wholesale Plumbing Supply, Inc. His work on this project was observed and recommended by Randy S. Woal. [Petitioner's Exhibit 3(bb).]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Frank H. Suesz, be dismissed. DONE and ORDERED this 15th day of August, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.
The Issue The issue is whether Respondent's license as a registered building contractor should be disciplined for the acts alleged in the Administrative Complaint, as amended?
Findings Of Fact Respondent, Robert Tucker, is a registered building contractor holding State of Florida license number RB 0033063 (Ex. 7). Respondent was licensed as a building contractor by the State of Florida in September 1978, and has remained licensed at all times material hereto (Ex. 7). Since September 20, 1978, Respondent has held a local Building Contractor's License issued by the Leon County Contractor Licensing and Examination Board (Ex. 7). Respondent's license with the Department has been delinquent since July 1, 1985 (Ex. 7). In July 1983, Respondent made an oral agreement with Violet Gladieux to erect a carport for her at a cost of $1,350 (Ex. 3). Ms. Gladieux's residence is located at 2321 Belle Vue Way, within the city limits of Tallahassee. Jay Gladieux, Jr. became acquainted with Mr. Tucker from his position as an employee of Mr. Tucker on a prior construction project. Mr. Gladieux introduced his mother, Ms. Gladieux, to Mr. Tucker for the carport construction. It was orally agreed that Ms. Gladieux would pay Mr. Tucker for supplies as they were needed. Mr. Tucker began erection of the carport approximately one week after July 11, 1983, when he received the first payment of $300. On July 29, 1983, Mr. Tucker received final payment of $350 so that he could complete the carport (Ex. 3). Approximately two weeks after July 29, 1983, Respondent completed the carport. A permit for the erection of the carport was required by Section 7-63, Buildings and Construction Regulations (The Building Code) of the City of Tallahassee. The language of that ordinance has not changed since 1957 (Ex. 1). No building permit was ever obtained by Mr. Tucker for erection of the carport. Approximately two weeks after completion of the carport, it collapsed after a heavy rainfall (Ex. 4 and 5). Mr. Tucker returned to repair the damaged carport. He erected center studs and was to return later to complete the damage repair. Mr. Tucker has failed to return to complete the damage repair after requested to do so by Jay Gladieux. When an administrative complaint has been filed against a contractor, personal service of the complaint is attempted upon the contractor at his last address of record. If personal service cannot be effectuated at the contractor's last address of record, further attempts are made to locate the contractor. The building departments, both City and County, the telephone company, utility company and post office are contacted. The building departments are contacted to determine if the contractor has obtained any permits, for the permits would list the contractor's address. The telephone company is contacted for prior and new telephone listing(s) with address(es). The post office is contacted for forwarding address(es). The utility company is contacted for new utility service which would contain a new address (es). If the contractor cannot be located after using these avenues, a diligent search affidavit is executed by the investigator who is attempting to serve the contractor. In September 1978 and at all times pertaining to the construction of the carport, Respondent's address of record with the Department was 1515-21 Paul Russell Road and P.O. Box 20234, Tallahassee, Florida. Respondent had not notified the Department of Professional Regulation, Construction Industry Licensing Board of any change in his address (Ex. 7), other than by the new address revealed on the Election of Rights form he filed in response to the administrative complaint. The Department attempted to personally serve Mr. Tucker at his listed address and could not locate him there. On May 21, 1984, Robert E. Connell, an investigator for the Department of Professional Regulation, executed a diligent search affidavit concerning service of the Administrative Complaint upon Mr. Tucker in this proceeding (Ex. 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of the charges in count one of the Administrative Complaint, as amended; that counts two and three be dismissed; and that he be fined $250.00. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert Tucker P.O. Box 10218 Tallahassee, Florida 32302
Findings Of Fact Roger Newbold was employed by Allen Electric Company, Inc., as a laborer working on its contract with the State. Newbold was employed during two different periods. The first time was prior to January 1, 1977, and the second, from March 13, 1977, to May 22, 1977. The addition to the Polk County Correctional Institution was bid in two phases; the first for heavy construction for site preparation, and the second, the actual building construction. Allen Electric Company, - Inc., had a contract from the general contractor during the first phase to install the main electrical distribution facilities on the site. All of this work was not associated with and carried on prior to the commencement of building construction. The heavy construction was in progress during Newbold's first period of employment with Allen Electric Company, Inc. Allen Electric Company was also a subcontractor with Delta Electric Company on the second phase of construction; however, Allen Electric Company did not do any building construction. They subcontracted with Delta to install secondary distribution lines and perimeter fence lighting on the site. See Delta Electric Company contract, late filed exhibit No. 7. Allen Electric Company did not go into the building with their workmen because their contract called for them to stop five (5) feet outside the building with the secondary distribution lines. All work and wiring done from this point into the building was carried on by Delta Electric. Newbold's job during his entire employment with Allen electric was to dig ditches and lay conduit. The conduit runs then were reinforced with concrete poured over reinforcing steel. During his entire employment, he was involved in digging the necessary ditches, setting the reinforcing rods, and pouring the concrete. The rate for heavy construction laborers under wage rate 398-W filed as a portion of late filed exhibit No. 7 was three dollars and thirty-six cents ($3.36) per hour. The wage rate for laborers working on building construction pursuant to wage rate 397-W also filed as a portion of late filed exhibit No. 7 was six dollars and fifteen cents ($6.15) per hour. Wage scale 397-W specifically states that it is applicable to nonresident building construction. All of the skills listed on the wage rate apply specifically to building construction except the general term "laborer." The record shows that the work done by Allen Electric Company, Inc., in the building construction phase was the same type of work undertaken by Allen Electric in the heavy construction phase. In both phases, Newbold was engaged in exactly the same duties. Newbold did not work on building construction but on laying conduit for secondary distribution systems and perimeter lighting systems during the second phase. All of this work took place outside of the building.
Recommendation The Hearing Officer recommends that the claim of Roger Newbold be dismissed by the agency. DONE and ENTERED this 5th day of 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marvin Woods, Esquire 440 S. Florida Avenue Post Office Box AR Lakeland, Florida 33801 David A. Perry, Esquire Corporate Officer Allen Electric Company, Inc. 1271 LaQuinta Drive Orlando, Florida 32809 Mr. Luther J. Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive Fast Tallahassee, Florida 32301
