Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
The Issue The issues presented are whether Respondent signed and sealed negligent drawings for one single-family residence and provided plan review certification for two other projects designed by Respondent in violation of Subsections 471.033(1)(g) and 553.791(3), Florida Statutes (2002), and Florida Administrative Code Rule 61G15-19.001(6)(n).1
Findings Of Fact The Board of Professional Engineers (Board) is charged with regulating the practice of engineering pursuant to Chapter 455, Florida Statutes. Section 471.038, Florida Statutes, authorizes Petitioner to provide the Board with administrative, investigative, and prosecutorial services. Respondent is licensed in the state as a professional engineer pursuant to license number PE 54476. It is undisputed that Respondent is a private provider within the meaning of Subsection 553.791(1)(g), Florida Statues. On October 29, 2002, Respondent signed and sealed drawings for a single-family residence identified in the record as the Barnes residence. It is less than clear and convincing that the drawings for the Barnes residence are deficient. The testimony of Respondent's expert witness was credible and persuasive. The applicable standard of care does not require the relevant drawings to include multiple ridge heights in order to describe the nature and character of the work to be performed with sufficient clarity. It is less than clear and convincing that the ridge heights in the drawings are unequal. Additional ridge height information would have been non-critical information that may have been interpreted as specific construction requirements and lead to confusion, added costs, conflicting interpretations, and potential hazards in buildings. It is less than clear and convincing that the drawings for the Barnes residence insufficiently show heights of the eaves or lintels and sills. The plans can be easily understood by tradesmen and inspectors. The typical wall section at page 4 of the plans addresses eaves, lintels, and sills. The ridge height requirements in Manatee County, Florida (the County), are intended to ensure compliance with maximum height restrictions. The mean heights in the drawings adequately address the maximum local height ordinances. It is less than clear and convincing that the roof entry plan provided insufficient clarity. The roof was constructed according to the local code requirements without apparent exception. The evidence does not support a finding that the roof entry plan, the ridge heights, lintels, eaves, and sills were insufficiently clear to describe the nature and character of the work to be performed. Clear and convincing evidence does not support a finding that the wind uplift for roof trusses in the plans was incorrect or unclear. If the wind load calculations were found to be deficient, the specified fittings were sufficient to withstand wind loads that exceeded the calculations of Petitioner's expert by approximately 70 percent. Wind load calculations are intended to ensure a roof will sustain the load and will not blow off of the house. The fittings were sufficient to secure the roof against the projected wind load. Clear and convincing evidence does not support a finding that the drawings failed to specify the applicable masonry inspection requirements. The evidence is less than clear and convincing that special masonry inspections are required for single-family residences of two stories or less. A masonry inspection is required for such structures when a building inspector finds a need for such an inspection. It is less than clear and convincing that the drawings fail to adequately specify the splice lengths of the bond beam reinforcement for tension, compression, intersections, and corners. The requisite evidence does not support a finding that the plans deviate from the standard of care in the community. Clear and convincing evidence does not support a finding that Respondent failed to comply with applicable soil condition requirements. The County did not require soil conditions on plans at the time Respondent drew the plans. From sometime in the 1940s through November 2003, the County permitted engineers to assume soil conditions with a ground load of 2000 pounds per square foot. Respondent drew the plans for the Barnes project in 2002. The testimony of Petitioner's expert does not relate to facts in evidence. The expert did not know County allowances for soil conditions at the time Respondent drew the plans. The evidence is less than clear and convincing that the design of the concrete footings cannot be verified from the plans. Nor does the requisite evidence support a finding that the plans do not specify reinforcement of the thickened edge under a load bearing wood stud wall at the garage. The plans include two reinforcement specifications for the thickened edge under the load bearing wood stud wall at the garage. The specifications include welded wire mesh and reinforced steel bars. Clear and convincing evidence does not support a finding that Respondent supplied or submitted the Barnes plans for permit. Without such a finding, Respondent was not required to prepare, submit, or seal a site plan. A site plan for the Barnes residence exists in the file of the County Building Department (Department). A Department representative confirmed that the site plan is sufficient and that an engineer of record is not required to prepare, submit, or seal a site plan unless the engineer of record actually submits the plans for a permit. On February 24 and March 7, 2003, Respondent signed and sealed drawings for respective projects at 14815 Coker Gully Road, Myakka, Florida (the Coker project), and 705 50th Avenue, Plaza West, Bradenton, Florida (the Yonkers project). Pursuant to Section 553.791, Florida Statutes, Respondent entered into a contract with an entity identified in the record as Griffis Custom Homes (Griffis) to provide either building code plans or inspection services, or both. Prior to the commencement of the two projects in question, the Department expressly permitted an engineer to provide building code inspection services involving buildings designed or constructed by the engineer. Respondent prepared private provider affidavits, obtained additional insurance, had forms made, and prepared to provide inspections services. Respondent immediately ceased his activities when Department officials objected to Respondent's stated intention of providing "private provider" building code inspection services for the Coker and Yonkers projects. The separate owners of the two projects withdrew their applications as "private provider" projects. The Department processed the projects, performed all inspections, and issued a certificate of occupancy for each project. Neither the Department, Petitioner, nor the Board, ever served Respondent with a Notice of Non-compliance. If it were found that Respondent committed the alleged violation, the violation was minor. There is no evidence of any economic or physical harm, or significant threat of harm, to a person or to the health, safety, or welfare of the public. There is no evidence that Respondent has any prior discipline against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the alleged violations. DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 2nd day of May, 2006.
Findings Of Fact The Respondent, Thomas J. Embro holds two licenses issued by Petitioner. They are RG0021774, registered general contractor, and RC0021647, registered roofing contractor. He has held these licenses since 1974. Sometime in the fall of 1979 Respondent was hired by Richard F. Rogers to replace the roof on a residential structure located at 4119 N.W. 12th Avenue, Gainesville, Florida. At that time the house was for sale. Mr. Rogers, who is a real estate agent, wanted the roof replaced in anticipation of a Veterans Administration financed sale of the house to Mr. William Schrader. Prior to beginning work on the roof Mr. Embro did not obtain a building permit from the City of Gainesville for the job. On October 1, 1979 Mr. Schrader made a complaint to the Building Division of the City of Gainesville. His complaint stated that the roofing work performed by Respondent was unsatisfactory. Mr. Al Davis, a building inspector employed by Gainesville, reviewed the city records and determined that a permit had not been issued to Respondent for reroofing Mr. Schrader's house. On October 3, 1979 Mr. Davis wrote a letter to Mr. Embro which stated in its entirety: October 3, 1979 Mr. Thomas J. Embro 3816 SW 18 Street Gainesville, Florida Dear Sir: We have received a complaint from Mr. Bill Schrader of 4119 NW 12th Avenue on the reroofing that you performed on his residence. After receiving the complaint I investigated out records and the work performed by your company and found the following violations: Our records indicate that a permit was not issued to reroof the above address, this is a violation of Section 106.1 of the Southern Standard Building Code. The roof material was not installed correctly. Shingles shall be installed in accordance to manufacture [sic] re- quirements and some parts of the roof are too flat for shingles. Interior damage has been caused by the roof leaking from not installing the shingles as required. The above violations shall be corrected within 10 days from receipt of this letter. Your compliance will make further action unnecessary. Sincerely, /s/ Al Davis Building Official cc: Mr. Bill Dow, State Investigator Mr. Bill Schrader Mr. Embro applied on October 25, 1979 for a permit from Gainesville for the work at 4119 N.W. 12th Avenue. The permit was issued on December 6, 1979. It is not unusual in Gainesville for a contractor to begin a construction job before the appropriate permit is applied for or issued. When this is not a frequent practice of a particular contractor the City imposes no penalty. If the contractor habitually begins construction without permits, the City imposes a penalty by charging him double the regular permit application fee. Mr. Embro was not charged a penalty by the City in this case. In the course of his contracting business Mr. Embro frequently asked his wife to make permit applications for him before he begins work. In this case he believed that she had applied for the appropriate permit. The City of Gainesville allows persons other than the contractor to apply for a building permit on behalf of a contractor if the contractor has first filed an authorization with the City designating an agent. Mr. Embro filed such an authorization on February 13, 1980 for his wife to be his designated agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Florida Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against Thomas J. Embro. DONE and RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1981.
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
