The Issue Whether the use of explosives at Respondent's quarry has caused damage to the shore of Petitioner's lake; and, if so, whether (and what amount of) compensatory damages should be paid by Respondent to Petitioner.
Findings Of Fact Petitioner Gateway Estates Park Condominium Association (the "Association") is a condominium association organized under chapter 718, Florida Statutes. The Association oversees the Gateway Estates Park mobile home community ("Gateway Estates"), a condominium, which consists of 220 mobile homes and two vacant lots. Although the lots and mobile homes are owned by the individual owners, the Association holds title to a number of common elements, including two lakes——the South Lake (which is the subject of these proceedings) and the North Lake. Respondent SDI Quarry, a/k/a Atlantic Civil, Inc. ("SDI Quarry"), a mining company, uses explosives to extract construction materials such as limestone from quarries that are located in southwest Miami-Dade County. SDI Quarry has three mines that are near the South Lake; the closest of these is located approximately 7,000 feet from Gateway Estates. In 2005, SDI Quarry began blasting in the vicinity of Gateway Estates, and such activity has continued from that time until the present (i.e., as of the final hearing in this case). SDI Quarry operates the only mines at which blasting is conducted within close proximity to the subject community. The evidence does not establish the number of blasts conducted near Gateway Estates during the roughly dozen years leading up to this litigation. Between July 1, 2015, and October 17, 2016, however, SDI Quarry performed 25 blasts, and neither party suggested that this frequency of activity was unusually high or low relative to SDI Quarry's past performance. The undersigned draws the reasonable inference that the number of historical blasts affecting Gateway Estates is in the range of 200 to 250. The state regulates the use of explosives in conjunction with the extraction of materials such as sand and limestone. A mine operator must obtain a permit before commencing blasting activities. Among other things, a permit holder must comply with the statewide ground vibration limits established by the State Fire Marshal. These limits are set forth in Florida Administrative Code Rule 69A-2.024(4), which states that "[g]round vibration shall not exceed the limits of particle velocity and frequencies established by the U.S. Bureau of Mines Report of Investigations, No. 8507 Ground Vibration, Frequency Limits." The pertinent U.S. Bureau of Mines Report is incorporated by reference in the rule. SDI Quarry has complied with its obligations under rule 69A-2.024 to engage the services of an independent seismologist to measure and record, for every blast, the peak particle velocity ("PPV")——a value that reflects the maximum speed at which a particle vibrates due to a passing wave of seismic energy——at the location of the building nearest to the blast site that is not owned by the permit holder, and to report this information in writing to the State Fire Marshal. The PPV limit in the state of Florida is 0.5 inches per second. This particular standard derives from research conducted by the U.S. Bureau of Mines to determine the ground vibration threshold for damage to structures such as buildings and homes. The state has not adopted a PPV limit dedicated to the protection of shorelines around lakes and ponds. Neither party identified any such standard having the force of law in any jurisdiction in the United States. There is no evidence that any of SDI Quarry's blasts reached or exceeded the 0.5 inch-per-second PPV limit. Moreover, at the location of Gateway Estates, most blasts caused a PPV of approximately 0.1 inches per second or less, and none led to a PPV in excess of 0.2 inches per second. In short, based on the current record, the undersigned determines that SDI Quarry was, at all relevant times, operating in compliance with the state laws regulating mining operations involving explosives. Because, however, as will be discussed below, blasting is an ultrahazardous activity, SDI Quarry is absolutely liable, as a matter of law, for damages caused by its use of explosives, regardless of fault. Therefore, SDI Quarry's regulatory compliance, per se, is irrelevant; that said, the PPV measurements obtained in the course of such compliance have probative value to the extent they bear on the issue of causation. The South Lake is a man-made body. It was excavated sometime before 1975, which was the year the Association was organized. From the waterline, the lake's shore slopes upward and levels off to a flat bank circling the water; beyond the bank are the backyards of the homes on the lake. Until 2011, when the slope began to lose stability and fail, the horizontal area of the South Lake's bank was approximately four to five feet wide, making it possible for residents to walk around the entire perimeter of the lake and engage in activities such as fishing. In 2011, about five or six years after SDI Quarry began blasting near Gateway Estates, the shore of the South Lake began to destabilize, and the saturated soil at the edges of the lake, consisting of silt or marl, began to slough and slump into the water. This opened up fissures in the slope, which undermined the upward bank. In time, holes appeared in the bank, and pieces of the once level surface fell off, resulting in the narrowing of the horizontal area, from roughly five feet or so, to about a foot and a half. Residents have observed the ground falling into the water in close temporal proximity to the blasting. One testified credibly that "after the blasting on January 20th, [2016,] the ground [in one section of the lake] actually separated and dropped into the water." Tr. 32. Because of the deterioration of the lakeshore, residents can no longer walk around the bank, or stand upon it and fish as in the past; the shore is too steep, and there are holes in the ground that render such activities unsafe. The stability of the slope has continued to worsen, and, as of the final hearing, the deterioration of the lakeshore, like the blasting, was ongoing. The Association has suffered property damage in the form of the deterioration of the shore and bank around the South Lake. There is, further, no dispute that from 2005 through the time of the final hearing, SDI Quarry has used explosives in connection with mining activities in the vicinity of Gateway Estates. The only genuine dispute of material fact relating to SDI Quarry's liability to the Association is whether the use of explosives caused the Association's loss——whether, in other words, the existing property damage at the South Lake would not have occurred but for SDI Quarry's blasting. The issue of causation in this case is a close one, and there is competent, substantial evidence on both sides. The Association offered the opinion testimony of James R. McNew, who is a construction consultant. Although Mr. McNew is not licensed as a professional engineer, he holds a bachelor's degree in mechanical engineering, awarded in 1972, and during the course of a 50-plus-year career has been involved as a consultant or project manager on a number of marine projects, including the construction of 27 bridges in South Florida, all of which had earthwork abutments and adjoining bodies of water. Some of the projects Mr. McNew supervised involved drilling and blasting operations. As a result, Mr. McNew has acquired specialized knowledge relating to the use of explosives in or around saturated and submerged soils from long practical experience, which in addition to his formal education and training qualified him to testify as an expert on causation in this case.2/ Mr. McNew's opinion is that vibrations from SDI Quarry's blasting acted upon the soft layer of silt atop the shore and bank of the South Lake, causing the liquefaction of this saturated soil, which extends down from the surface, to distances of up to eight feet. This led, in Mr. McNew's opinion, to the compaction of the loose, wet soil around the edges of the lake, opening up cracks and holes and weakening the slope, which began to erode and fail. Mr. McNew stated that there are no specific legal standards in Florida or elsewhere serving to establish PPV thresholds above which lakeshore slope instability would be expected under the stress of blast-related vibrations.3/ He opined that existing limits based on structure responses to ground vibrations are inapplicable, because buildings are designed and constructed to resist the stresses of seismic energy, in contrast to saturated silt on the shore of a lake. He explained that, consequently, lower levels of energy would suffice to cause damage to the bank of the South Lake, than would be expected to damage, e.g., a house at the same location. SDI Quarry's principal expert witness on causation was Steven E. Black, a Florida-licensed professional engineer who specializes in geotechnical engineering and has been practicing in the field since 1970.4/ In addition to these credentials, Mr. Black holds a bachelor's degree in civil engineering. At hearing, Mr. Black explained that there is a layer of calcareous silt that underlies the mobile home park and is exposed at the lakeshore. Mr. Black testified that this silt layer has been eroded over time by the action of wind, waves, and rainwater percolating down and through the ground, pulling the silt from the bank and resulting in the deterioration of the property. According to Mr. Black, the blasting carried out by SDI Quarry is not close enough to Gateway Estates to impart sufficient energy to affect the soil around the South Lake.5/ In his opinion, SDI Quarry's blasting activities did not cause, as he described it, "the sloughing of the edges of the lake." Yet, interestingly, Mr. Black agreed with Mr. McNew that heavy truck traffic could definitely affect the silt layer of the lakeshore over a continuous period of time. Tr. 145. (Mr. McNew expressed the opinion that ground vibrations from heavy equipment could cause damage to a lakeshore "if you [had] a haul road going around the lake." Tr. 77. He offered this comment while making the point that other sources of seismic energy besides blasting, e.g., heavy construction traffic, could be ruled out as causes of the damage to the South Lake because none have been known to occur.) The undersigned finds this concession of Mr. Black's to be significant because, while there is no evidence in the record establishing the typical levels of ground-borne vibration from heavy trucks or construction equipment traveling over a roadway, common knowledge and ordinary experience are sufficient to permit the fact-finder to infer that such levels would be lower by orders of magnitude, at the source, than those caused by the use of explosives to mine limestone. We know this because in ordinary experience, while we might feel some vibrations under foot when a large truck drives by, especially if the road surface is uneven, we can easily see——because the road remains intact—— that the truck has not suddenly released tremendous gas pressure inside the ground, producing enough energy to break rock, as occurs when explosives are placed in holes and detonated in a limestone quarry. As it happens, there are homes and other structures standing between the South Lake and the nearest streets, so any ground-borne seismic energy from passing trucks necessarily would be attenuated before reaching the lakeshore, just as the seismic energy from SDI Quarry's blasting is attenuated as it travels the one and one-third miles from the mine to the lake. As found above, by the time the energy wave from a blast reaches the South Lake, the PPV is typically 0.1 inches per second or less (although occasionally the level is higher), but obviously the PPV at the source of any given blast is far greater than that. Energy from a passing truck would not need to travel as far, to be sure, but it would be much weaker at the source than a construction mining blast. The undersigned does not have enough evidence before him to make a finding as to what levels of PPV would be expected at the South Lake as heavy trucks drove past the property, but he can reasonably infer that the seismic energy from nearby vehicular traffic would not likely exceed that of SDI Quarry's blasting, and indeed would likely be much lower. It is true, to be fair, that Mr. Black's opinion——that transportation sources of ground-borne vibration, if present, could affect the lakeshore——was qualified by conditions of frequency ("a lot of heavy truck traffic") and duration ("over a continuous period of time"). His opinion about the blasting, however, was that the energy imparted therefrom was insufficient to damage the lake, period———not that the blasting was too infrequent to cause the property damage, or that it had not been conducted for a sufficient period of continuous years to cause such damage. By conceding that the energy imparted from heavy trucks "could definitely affect" the stability of the silt layer, Mr. Black undercut the strongest part of his opinion on causation, namely its certainty that an absolute level of seismic energy, greater than that seen at the lake, is necessary to cause saturated silt to move. On balance, the undersigned finds Mr. McNew's opinion on causation to be more persuasive than the competing view. In addition, the undersigned finds that the circumstantial evidence is consistent with, and supports, Mr. McNew's opinion; indeed, such evidence might have been sufficient, without more, to establish a causal connection between the blasting and the property damage. Consider that the South Lake had existed for at least 35 years without experiencing the deterioration of the shore and bank that became noticeable within just five or six years after the start of the blasting, and which has worsened over time as the blasting has continued. Add to that the persuasive evidence that visible damage occurs in the wake of individual blasts. Taken together, these facts on the ground have probative value independent of expert opinion. That said, the undersigned credits Mr. Black's testimony to the extent it supports a finding that erosion from wind, wave, and rainwater is a natural cause of some deterioration at the shore of the South Lake. It is further found, however, that this natural erosion is not the sole and independent cause of the Association's property damage. Rather, it is determined that the seismic energy from SDI Quarry's blasting is acting in combination with this natural erosion, and that the blasting, as a concurring cause, is contributing substantially to producing the sloughing of the lakeshore, fissures and holes in the slope, and consequent loss of level area from the bank that have occurred, and continue to occur, at the South Lake. In sum, the Association has proved by a preponderance of the evidence that SDI Quarry's blasting is a legal cause of the property damage for which compensation is being sought. As for the measure of damages, the Association presented evidence of a proposal from Upper Keys Consulting LLC ("Upper Keys"), which is dated July 18, 2015, for restoring the shore of the South Lake and installing preventative devices to protect the shoreline against erosion from future blasting. This proposal included several options, ranging in price from $840,000.00 to $1.45 million. The Association seeks to recover $840,000.00 from SDI Quarry to cover the cost of repairing and protecting its property. SDI Quarry did not present persuasive evidence either challenging the efficacy, or questioning the expense, of the Upper Keys proposal. The undersigned finds, therefore, that an amount of $840,000.00 is supported by the preponderance of the evidence presented. SDI Quarry contends, as an affirmative defense, that the Association failed to file its petition for relief within 180 days after the occurrence of the alleged damage, as required by section 552.40(1). The petition was filed on February 22, 2016, and SDI Quarry maintains that the damage to the South Lake had already occurred more than 200 days earlier, by July 18, 2015——i.e., the date of the Upper Keys proposal. SDI argues that, as a result, the Association's claim is time barred. The undersigned rejects this argument because, as a matter of fact, the property damage at issue is present and continuing; the harm to the lakeshore is cumulative, indivisible, and inseparable. The deterioration of the South Lake worsens with each blast, and the blasting was still going on during the 180 days preceding the initiation of this action. The damage, consequently, did not simply occur once in the past. This action is not time barred. Despite finding that SDI Quarry is liable to the Association for the property damage caused by its blasting, the undersigned determines that SDI Quarry's defenses were supported by evidence of material facts; were grounded in existing law; and were not advanced primarily to harass or cause unnecessary delay, for frivolous purposes, or to needlessly increase the cost incurred by the Association. As stated above, the question of causation is close in this case, and there is conflicting evidence on this crucial issue. That the undersigned resolved the evidential conflicts in the Association's favor neither means, nor is meant to imply, that SDI Quarry's position lacked substantial merit.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Wayne Cassity, was a certified building contractor having been issued license C-6620. Respondent was the qualifying contractor for Cassity Construction, 5000 Rena Street North, St. Petersburg, Florida. On or about December 19, 1995, Respondent contracted with Mr. and Mrs. Ralph Thomas to build an addition to the back of their home located at 1537 Carson Circle Northeast, St. Petersburg, Florida. The contract provided that the construction project was to be completed in forty (40) working days, or about two months. The contract was later modified by agreement of the parties on January 26, 1995. Except for an increase in the cost of the project, the amended contract was substantially the same as the original contract. Under the terms of the modified agreement, the cost increased from $14,400.00 to $15,900.00 The increased cost resulted from changes in the plans that were necessary to comply with certain FEMA regulations. Under the terms of the agreement, payment for the work performed was to be made at various intervals during the construction project. The contract required that Mr. and Mrs. Thomas pay Respondent $3,300.00 upon execution of the contract; $5,040.00 after masonry work was completed; $5,040.00 after completion of framing; and $2,520.00 upon completion of the contract. In regard to Respondent's obligations, the contract provided in pertinent part the following: Furnish drawing to owner for approval. Obtain a building permit from the City of St. Petersburg. Remove and dispose of existing grass where the new addition is to be built. Remove and dispose of existing walls in spare room on east side of the new addition. Remove and dispose of existing 12'-0" sliding glass door. Furnish and install all material to con- struct a new concrete slab, approximately 19'-0' x 12' -0' made up of 3000 PSI con- crete, 16" x 16" footing with two no. 5 rebar continuous and 4" thick slab with 6" x 6" x 10 wire mesh on 6 mil visqueen. Furnish and install all material to con- struct exterior block wall for new addition Furnish and install all material to con- struct a new roof over new addition made up of 2" X 8" rafters 24" on center with 3/3" plywood. Overhangs to match existing house as close as possible. Furnish and install 90 lb. torch down roll roofing, for new room of new addition. (Entire flat room) Frame interior walls of new addition. Apply 1/2" drywall to interior of all walls and prepare for paint. Install electricity to new addition to include seven receptacles, four light switches and three overhead lights. Install rough plumbing for new bath to supply shower, toilet and sink. Install two new A/C ducts to new addi- tion tapping into existing trunk line. Under the terms of the contract, Mr. and Mrs. Thomas were to supply and install the following: toilet; sink; vanity; all doors; base trim; door trim; interior paint; exterior paint; carpet; bath floor tile; shower fixtures, exterior stucco; and exterior soffit. Notwithstanding the written contract terms, at some point prior to completing the project, the parties verbally agreed that the owners, not Respondent, would remove and dispose of the existing walls in the spare room and the sliding glass door. Additionally, the parties verbally agreed to reduce the price to be paid under the contract from $15,900.00 to $15,780.00. Although the written contract provided for increases and reductions pursuant to authorized change orders, no evidence was presented regarding the specific reason for the decrease in the construction cost. The Pinellas County Building Office issued the building permit to Respondent on December 18, 1994 and Respondent began work on the Thomas' project several days later. The Pinellas County Building Code requires contractors to call for inspection at various intervals during construction. This allows any code violations to be identified and corrected prior to completion of a given project. Although contractors are required to call for inspections, building inspectors sometimes make unrequested inspections. On January 10, 1995, an initial unrequested inspection was made of the Thomas construction project. Respondent's slab/footer work on the project was rejected by the inspector because it did not meet FEMA requirements. Another unrequested inspection was made by a Pinellas County inspector on January 25, 1995, and again the footer work was rejected. Respondent called for an inspection of the project on January 29, 1995. Pursuant to Respondent's request, an inspection of the work was made on February 17, 1995, by a Pinellas County building inspector. At the time of the February inspection, the footer work was in progress but not yet complete. Two or three days later, after the footer and slab were completed, the work passed inspection. The Thomas' made the first three payments to Respondent in accordance with the terms of the contract, but never made the final payment. On December 28, 1994, Respondent was paid $3,300.00 by Mr. and Mrs. Thomas. The second and third payments of $5,040.00 each were made on January 26, 1995 and February 10, 1995, respectively. The total payment paid to Respondent by the Thomas' was $13,380.00, and represents 85 percent of the total contract price. The percentage corresponds to the 85 percent of work completed by Respondent on the Thomas construction project. On March 28, 1995, Mr. and Mrs. Thomas notified Respondent in writing of their general dissatisfaction with his work. Specifically, the owners expressed a concern that Respondent had failed to complete his designated responsibilities under the contract. Mr. and Mrs. Thomas further indicated that Respondent failed to do a quality job. While several items were of concern to the owners, their primary concern was that the floor level of the new addition was not even with the existing structure. In order to placate the owners, Respondent agreed to return to the Thomas' home and perform the work which the Thomas' believed should have been done by Respondent. Respondent's attempts to comply with the Thomas' request were unsuccessful and attempts to satisfy the owners were futile. Despite the owners' personal dissatisfaction with Respondent's work, no competent and substantial evidence was presented regarding whether the actual work completed by Respondent was consistent with the approved plans and the actual contract. The contract between Respondent and Mr. and Mrs. Thomas contained a dispute resolution clause. According to that provision, "all disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." Mr. and Mrs. Thomas have failed to utilize the dispute resolution method prescribed in the contract. An investigative inspection was performed by a Pinellas County inspector on March 19, 1996, approximately one year after Respondent initially completed his work on the Thomas home. Typically, three types of inspections are conducted: construction, electrical, and roofing. However, the March 19, 1996 inspection was limited to a construction inspection, and did not include a roofing or electrical inspection. The construction inspection revealed three code violations: the framing for the roof was improperly anchored; the air flow duct was blocked by the insulation; and the window frames were not sealed. The Code violations discovered as a result of the March 19, 1996, inspection were not included in the Administrative Complaint filed against Respondent. On or about March 24, 1995, Respondent entered into a contract with B. G. Diehl to convert an apartment building to an Assisted Living Facility. The first payment under the contract was made on or about March 28, 1995. Work on the remodeling project began on March 28, 1995, although the permit was not obtained until the first week of May 1995. Respondent's failure to obtain the building permit was based on his belief that Ms. Diehl had verbal assurance from county or city officials that prior problems with permitting for this project had been resolved and that the permit would be issued. The Pinellas County Building Code requires that building permits be obtained by contractors prior to beginning a project. This requirement is directed to licensed contractors, and it is the responsibility of the contractor, not the property owner, to ensure that proper permits were obtained prior to beginning the Diehl construction project. The contract provided that the job would be complete on August 15, 1995, and also included a "time is of the essence" provision. The work was substantially complete by August 15, 1995, and certified for occupancy in October 1995. One of the reasons for the delay was the issuance of a Stop Work Order issued in April 1995. Ms. Diehl's dissatisfaction with Respondent was affected by and escalated when Respondent placed a lien against her property. Though Ms. Diehl indicated she was generally not satisfied with Respondent's work, no competent and substantial evidence was presented demonstrating that the work was not completed or performed in a workmanlike manner. During the course of the construction project there were numerous disputes between Ms. Diehl and Respondent. The primary dispute involved a work order which would have required Ms. Diehl to pay an additional $10,000-$20,000. The change was deemed necessary by Respondent after he consulted with the civil engineer employed by Ms. Diehl for this project. The civil engineer informed Respondent that the plans initially drawn by the engineer and which had been relied upon by Respondent in his bid would not work. Similarly, additional changes were required after Respondent conferred with the structural engineer retained by Ms. Diehl. These changes, at least in part, required a modification of the location of bathroom fixtures. The essence of Ms. Diehl's complaints regarding the work performed by Respondent involve changes that were made to the plans without her approval. However, Ms. Diehl met with Respondent, the civil engineer and the structural engineer, and was aware that the engineers knew and agreed that the changes were necessary. Ms. Diehl was responsible for the electrical work involved in this project, and approved Randy's Electric as the company to perform the electrical work required by the contract. Respondent subcontracted with Rainbow Gas Company to install the gas piping which was required for this remodeling project. The total contract amount for the Diehl construction project was $158,750.00. Ms. Diehl paid Respondent all payments except the last one and employed another contractor to complete the job. No evidence was presented indicating the amount of money Ms. Diehl paid to Respondent or the amount of money, if any, paid to the contractor who completed the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Pinellas County Construction Licensing Board enter a final order that finds that: Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(d), (h)2., and (d), Laws of Florida, as alleged in Counts One, Two, and Four of the Administrative Complaint. Respondent violated the provisions of Chapter 89-504, Section 24(2)(n), Laws of Florida, as alleged in Count Five of the Administrative Complaint, and which assesses an administrative fine against Respondent in the amount of $100.00 for that violation. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(g) and (n), as alleged in Counts Six, Seven and Eight of the Administrative Complaint. Respondent did not violate Rule 2-15.003, Florida Administrative Code, as alleged in Count Nine of the Administrative Complaint. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 4th day of June, 1996.
Findings Of Fact King Royer, Inc., the Petitioner, and the State of Florida, Department of General Services, entered into a contract dated October 15, 1974, for the construction of vocational facilities at the Union Correctional Institution at Raiford, Florida. A copy of the contract agreement is Petitioner's Exhibit No. 3, the plans for the project are Petitioner's Exhibit No. 1, and the specifications for the project are Petitioner's Exhibit No. 2, all admitted into evidence. The contract has been completed and a certificate of contract completion issued by the Department of General Services as reflected in the copy of that certificate which is Respondent's Exhibit No. 18, admitted into evidence. The certificate of contract completion is attended by a letter of explanation from the architectural firm in charge of the project which letter is Respondent's Exhibit No. 19, admitted into evidence. This certificate of contract completion makes reference to change order No. 2, and a copy of change order No. 2 has been admitted into evidence as Petitioner's Exhibit No. 4. This cafe is brought pursuant to Article 8.5 of the contract document, Form of Agreement Between Contractor and Owner for Construction of Buildings, which calls for claims and disputes to be appealed to the Department of General Services for hearing. Those specific claims of appeal are promoted by two documents. The first document is the letter of July 16, 1975, by King Royer as president of the Petitioner corporation. This letter is addressed to the Director of the Department of General Services and is treated as the appeal document. There are five items within this element of the appeal which are listed as follows: "(1) Extension of tire for completion of the project, due to late delivery of the engineered metal building, and delays in completing corrective work of which we were informed only a few days before scheduled completion of the project. Removal of concrete floor which we believed to be 4" thick on the plans, but for which the Architect contends 6" thickness is required. Removal of approximately 2,500 square feet of slab which we contend was substantially in accordance with the contract and adequate for the intended purpose. Temporary bracing for the building, not necessary for any possible loads on such bracing, during removal of the concrete slab. Painting of interior metal structure, not required by the plans and specifications." Paragraphs one and four of this letter/petition will not be considered in substance, for reasons which will be set forth in the section of this recommended order, entitled Conclusions of Law. The second element of the appeal concerned an amendment to the appeal for purposes of considering change order No. 2, which is Petitioner's Exhibit No. 4. This amendment was entered into by stipulation and agreement of counsel for the parties. The stipulation and agreement, indicated that the appeal could consider the elements of the change order to this extent: (1) The element on extension of time due to inclement weather; (2) liquidated damages, only those elements where the liquidated damages pertain to delays associated with the removal of the concrete floor slabs reflected in paragraphs two and three of the original appeal and the painting of interior metal structures as indicated in paragraph five of the original appeal; (3) additional testing shown in the change order; (4) additional services of the structural engineer shown in the change order; and (5) additional services, of the architects and engineering firm, shown in the change order. The first it ruled to be a proper subject for consideration in this appeal, was item two of the July 16, 1975, appeal. As mentioned before this item deals with the removal of a concrete floor which the Petitioner contends was supposed to be 4" thick in accordance with the plans and for which the architect in speaking for the Respondent claims should have been 6" thick to comply with the plans. This area is shown at page 2 of 27 in Petitioner's Exhibit No. 1, which is to plan of the project. The area is found between column line A as a southern boundary and it's northern boundary is a common line extended from the northern wall of the auto mechanics shop. Its eastern boundary runs along column line 5, than proceed through an area approximately 4' 10" wide from column line 5, west to the eastern most wall of classroom 1, and then inset to the eastern wall of the instructor's office No. 1, and then inset to the small closet like area identified as No. 1, these latter dimensions making up the western boundary of the disputed area. In the initial pour of the concrete in that area, the depth of the pour was 4" and was so intended by the Petitioner. The architect of the project discovered that the depth was 4" and not 6" and ordered that this section of the concrete slab be removed. The removal was effected and the cost of that removal and reinstallation is at issue in the appeal. Sheet 5-2, which is at page 14 of 27 of Petitioner's Exhibit No. 1, calls for a 6" concrete slab in the auto mechanics shop and this auto mechanics shop is that area identified on Sheet 2 of 27 of Petitioner's Exhibit No. 1, and includes the disputed area previously described before. Since the initial pour was 4" instead of 6" in the area as described, the Petitioner was not in compliance with the plans and the architect was correct to cause the removal of the initial pour and the substitution of the 6 " pour. Item three in the appeal, set forth on July 16, 1975, questions the requirement for the removal of approximately 2500 square feet of slab which the Petitioner contended was in substantial compliance with the contract and adequate for the intended purpose. This area would be constituted of the remaining aspect of the auto mechanic shop which has not previously been identified in discussing item No. 2. Its southern boundary begins at the intersection of column line A and 1, thence along column line A to the intersection with column line five; go dawn column line 5 from that point to the intersection with the first wall encountered to locate the western boundary; then along that wall east to an intersection of the wall and column line 1 to locate the northern boundary; and then south along column line 1, to the intersection of column line 1 and column line A, to locate the eastern boundary. When the Petitioner initially poured the concrete slab in this area it placed the welded wire fabric by such a method that fabric sunk to the bottom or near bottom of the concrete slab, in violation of Division 3.2C. of the specifications, which call for the welded wire fabric to be placed in the center of the slab. Approximately a week after the floor was poured a Case No. 584 diesel forklift which weighs 10,000 pounds was driven onto the newly poured slab in the auto mechanics area, 100 to 150 times carrying approximately 1500 pounds of structural members on each run. Subsequent to the time that the mesh sunk to the bottom or the near bottom of the concrete floor slab, cracks were discovered in the surface of the floor of the auto mechanics shop and these cracks are determined to be structural cracks. These structural cracks were promoted in part by the location of the mesh in the concrete slab and by the traffic of the fork lift. The location of the mesh may be seen in Petitioner's Exhibit No. 11 which is a photograph of the auto mechanics slab when it was being removed and also in the Respondent's Exhibit No. 9 which is a core sample taken from the auto mechanics area. The nature of the structural cracks is shown by hand drawn lines placed on number 5-2, at page 14 of 27 of Petitioner's Exhibit No. 1, the pencil lines being drawn by Villany Hausner, the structural engineer on the project and the red lines being drawn by Jeff Hoxie, the project architect. This floor slab in the auto mechanics area was also dusted in contravention of Division 3.11A of the specifications which prohibits dusting of the exposed slab. The Petitioner tried to demonstrate that the cracks found on the surface of the concrete slab in the auto mechanics shop were not structural in nature by driving a 38,000 pound concrete truck onto the slab in the auto mechanics area in excess of two months after the pour. This test is found to be inadequate to overcome the conclusion that the cracks were structural in nature in that the test was not properly designed. The Petitioner was offered an opportunity for utilizing a properly designed test at its expense, as prescribed by the architect but the Petitioner did not respond to this offer. There was conflicting evidence about the depth of the initial pour in the area of the 2500 square feet. Respondent's Exhibit No. 1 seems to indicate that a test performed by the Petitioner showed the depth to be substandard but other Exhibits by the Petitioner, namely Petitioner's Exhibits No. 11 and No. 12 show photographs of the concrete slab being torn out indicating that the depth approximated 7". There is also an Exhibit, Respondent's No. 9 which was a core sample taken from the auto mechanics area, but it is not clear what section of the auto mechanics area it was taken from, whether in the 2500 square foot area or in the narrow area 4' X 10" which was mentioned in the point No. 2 of the appeal of July 16, 1975. After reviewing the evidence on the depth of the slab, it is not clear what the true depth was on an average, in the 2500 square foot section. Nonetheless, based on the structural cracks, as explained by the mesh location and to a lesser extent by the driving of the fork lift truck onto the slab, the initial pour of to 2500 square feet was not in compliance with the contract and tie architect was correct in having the slab removed when the Petitioner failed to respond to his offer to have the slab tested. Item No. 5 in the July 16, 1975 appeal pertains to the painting of the interior metal structures and the Petitioner claims that these metal structures are not required by the plans and specifications to be painted. The Petitioner promotes his argument by reference to Division No. 9 of the specifications, particularly 3.7A of Section 9F, which is found on page 9F-8. This part, 3.7A says, "do not paint . . . pre-finished item as specified under Division 13- special construction." Therefore, it is the Petitioner's contention that any item found in Division 13 should not be painted. However, Division 13 in its Section 13B, 3.1C found at page 13B-2, says, "give one shop coat of paint as specified herein to all steel surfaces . . ." This statement is further supported by Division 9, Section 9F, 3.6B(3) at page 9F-7, which says that ferrous metals, including shop painted items will have one coat of rust inhibiting primer and one coat of interior gloss oil house paint. Therefore, the reference 3.7A in Section 9-F of Division 9 does not exclude all so called pre-finished items as specified under Division 13 from painting and the architect was correct in insisting that all interior metal structures which were not in fact pre-finished be given a shop coat, one coat of rust inhibiting primer, and one coat interior gloss oil house paint, as necessary. The second aspect of the appeal concerns change order No. 2. The parties agreed that the 20 day extension of time due to inclement weather should be awarded to the Petitioner at $50 a day for a total amount of $1,000. The second item of the change order concerning liquidated damages in the amount of $1,800 is sustained in view of the fact that only those items pertaining to the removal of the floor slab and painting of the structural members could be considered in addressing the liquidated damages, because of the prior stipulation. Therefore, the architect being found correct in his actions, the liquidated damages should stand. Items 3-5 in the change order concerning additional testing, additional services of the structural engineer and additional services of the architect and engineering firm are proper cost items in view of the problems associated with the floor slab and the appeal of their assessment should be rejected.
Recommendation It is recommended that those items found in the July 16, 1975 letter of appeal offered by the Petitioner not be allowed. It is further recommended that the matters as set forth in the amendment to the petition as found in change order No. 2 be allowed only to the extent of an award of $1,000 for extension of time due to inclement the technique considered acceptable far reimbursement of the amount of $1,000, regardless of the decision on the other matters of the appeal. DONE and ENTERED this 12th day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John A. Barley, Esquire Assistant Attorney General Room 115, Larson Building Tallahassee, Florida 32304 John F. Roscow, III, Esquire Post Office Drawer C Gainesville, Florida 32602 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue presented for decision herein is whether or not Respondent has been disciplined by a local government, the City of Tampa, in violation of Subsection 489.129(1)(i), Florida Statutes.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, documentary evidence presented and the entire record compiled herein, the following relevant facts are found: During times material hereto, Respondent was a licensed contractor in Florida, having been issued license number CG C006397. Petitioner is the State agency charged with regulating the construction industry in Florida. On May 5, 1987, Respondent was disciplined by the Unified Construction Trades Board of the City of Tampa, and thereafter, on August 13, 1987, Respondent's license was revoked based on the determination that Respondent was guilty of violating City of Tampa codes. (Petitioner's Composite Exhibit 2.). Respondent's disciplinary action by the City of Tampa was reviewed by Petitioner and based on the May 5, 1987 suspension of Respondent's license, Petitioner found probable cause against Respondent on June 11, 1987. As stated, Respondent failed to appear to contest or otherwise refute the fact that the Unified Construction Trades Board of Tampa took disciplinary action against his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's certified general contractor's license number CG C006397 be suspended for a period of one (1) year from the entry of the Board's final order. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1989.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, Respondent was a certified residential contractor having been issued license number CR C018874 since 1981. Respondent, during late 1986, was approached by a Mr. Marlar, owner of Pinellas Builders, who requested that Respondent affiliate with Pinellas Builders using his licensure to qualify Pinellas. Respondent tentatively agreed to a business arrangement with Marlar, however, prior to the time that Respondent formally qualified Pinellas, the negotiations broke down and Respondent never formally qualified Pinellas. During January, 1987, Pinellas entered into a contract with a customer, John Kane of Clearwater, Florida, to build an addition to Mr. Kane's residence for a sum of $33,000. (Petitioner's Exhibit 1.) Pinellas was required to obtain a permit to construct the addition to Kane's residence. Pinellas obtained the permit and utilized Respondent's license to do so. Kane encountered difficulty with Pinellas as the subcontractors were not paid and liens and/or notices of intent to file liens were placed on his home. Mr. Kane ultimately had to rehire the subcontractors and pay them directly resulting in an additional expenditure by Kane of approximately $10,000 over and above the amount that Pinellas agreed to complete the addition to his home. During June of 1987, Kane filed a complaint with Petitioner and in connection therewith, Petitioner's investigator, H. Dennis Force, spoke to Respondent via telephone respecting the fact that permits were being pulled under his name. Respondent was unaware that Pinellas was utilizing his name as a qualifier to obtain permits nor was Respondent aware that Pinellas had obtained contracts to perform work utilizing his name as the licensing authority. As a result of Investigator Force's conversations with Respondent, Respondent revoked the letter of authorization given to Marlar during April, 1987. Respondent distributed copies of the revocation of authorization given to Marlar to the various local cities in the surrounding area. Respondent acknowledges his liability as a qualifier and accepts that responsibility. Respondent is not presently affiliated with any corporate entity in that he prefers to work as an individual such that he can insure the quality which he strives for comes to reality. Mr. Kane acknowledges that he never saw Respondent on the jobsite and had never met him during any of the negotiations with Marlar (Pinellas). Respondent received no monies from Kane or any other persons who had entered dealings with Pinellas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a civil penalty of $500 payable to Petitioner within thirty (30) days and issuing a written letter of reprimand to Respondent based on his authorization of an unlicensed person to use his name to obtain permits. 1/ DONE and ENTERED this 7th day of April, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of April, 1989.
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
Findings Of Fact The Respondent, at all times material hereto, was a licensed registered "residential contractor." He was not registered or licensed as a general or building contractor, however, as Respondent himself acknowledged. See also, Petitioner's Exhibit 1 in evidence. The Petitioner is an agency of the State of Florida charged pursuant to the provisions of Chapter 489, Florida Statutes, with establishing licensure standards for building contractors of all types in the State of Florida, and with enforcing the various limitations on practice as a contractor embodied in that chapter. On or about January 28, 1986, the Respondent contracted with one Harold Martin, M.D., to build Dr. Martin a commercial office building in Leon County, Florida. The contract specified construction of all phases of the building project except the parking lot and the landscaping. The Respondent submitted a budget for the construction work to Dr. Martin depicting a total proposed cost for the project of $134,882. The Respondent performed substantial work on the office building in January and February of 1986. In March of 1986, due to a dispute which arose between the Respondent and Dr. Martin concerning the cost and progress of the construction project, Dr. Martin terminated the Respondent's service and contract and retained another contractor to finish the job, which was done. The Respondent established that when the contract was terminated, the building was approximately 65 percent complete. It is undisputed that the Respondent did perform a substantial amount of work on the office building pursuant to the contract with Dr. Martin. On March 27, 1986, the Respondent filed a claim of lien against the owner, Harold Martin, in which the Respondent stated that he had managed the construction of the office building in question and had performed $23,300 worth of work thereon. The Respondent also provided Dr. Martin with a Contractor's Affidavit, in which he certified to the owner that all lienors, except one, had been paid. The Respondent had contracted to perform the work after it had been started by another contractor retained by Dr. Martin, whom Dr. Martin had also terminated because he was not pleased with the progress and the quality of work of that first contractor. The Respondent established that one of the members of the Board of Directors of his corporation was a licensed general contractor, but admitted that that general contractor and board member had performed no work with regard to Dr. Martin's office building. The Respondent testified that another general contractor came to the job site from time to time to supposedly oversee the job. However, it was not established that any other general contractor, in the course of his practice, had any nexus with the Martin contract nor the performance of any construction on the building at times when the Respondent was performing construction thereon in January and February of 1986. This is demonstrated especially because of the fact that the Respondent never paid any other general contractor any money for any work or supervision performed with regard to this job, nor had Dr. Martin paid any other general contractor for such duties during the time that the Respondent was performing work on the building in question.
Recommendation Having considered the foregoing findings of fact conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the Construction Industry Licensing Board, in accordance with disciplinary guideline Rule 21E-17.001(3), Florida Administrative Code, according the Respondent the penalty of a Letter of Guidance. DONE and ENTERED this 23rd day of December, 1987, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2958 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: William O'Neil, III, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. James L. Washington 320 West Pershing Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
The Issue The issues presented are whether damages resulted to Petitioner's home as a result of Respondent's use of explosives in connection with construction materials mining activities, and, if so, what is the appropriate remedy.
Findings Of Fact By Notice of Hearing entered March 10, 2016, this cause was scheduled for final hearing on May 18, 2016. An Amended Notice of Hearing dated April 20, 2016, re- noticed the hearing for May 18, 2016, changing the location to Lauderdale Lakes, Florida. On May 12, 2016, a second Amended Notice of Hearing also scheduled the hearing to start on May 18, 2016. On May 17, 2016, Petitioner filed a Notice of Filing Her Power of Attorney. At 9:30 a.m., on May 18, 2016, the date and time scheduled for the final hearing in this cause, Respondent's attorney and its witnesses, the court reporter and the undersigned were present. Petitioner did not appear. Petitioner's husband appeared at hearing indicating that he was there to represent Petitioner by Power of Attorney. In administrative proceedings, pro se parties may either be represented by an attorney or a qualified representative. On May 2, 2016, Petitioner's request that her husband represent her as a qualified representative was denied by Order Denying Motion/Request for Leave to be Represented by a Qualified Representative in this Case ("Order"). The Order held Petitioner's husband does not have the "knowledge and experience identified in Florida Administrative Code Rule 28-106.106 to serve as a qualified representative." Petitioner's Renewed Motion/Request for Leave to be Represented by Qualified Representative in this Case was also denied by Order on Petitioner's Renewed Motion, dated May 16, 2016. While addressing preliminary matters prior to starting the hearing, the undersigned held that the Power of Attorney could not substitute for rule 28-106.106. Therefore, Petitioner's husband was prohibited from representing Petitioner at the hearing due to Petitioner's husband not meeting the qualified representative standards. After waiting for Petitioner to appear, the undersigned convened the hearing. At 10:13 a.m., Petitioner still had not appeared. The final hearing was adjourned.
Findings Of Fact Respondent Bruce G. Alles, is a certified general contractor, license number CGC C014472, and has been so licensed since the summer of 1979. At that time, he became the qualifying agent for Univel, Inc., Melbourne Beach, Florida, a general contracting firm. Prior to Respondent becoming the qualifier for Univel, Inc., one David Boland had been the qualifying agent for the company, and no apparent action was taken by Univel to remove Boland as a qualifier for an undisclosed period of time after Respondent assumed that function. (Pleadings, testimony of Respondent, K. Alles) The only project of Univel that Respondent supervised from 1979 until subsequent to April, 1981 was the renovation of several buildings called Ocean Landings. During the period of March or April, 1980 until April, 1981, he had no involvement in any of Univel's projects. Since April, 1981 he has pulled permits and supervised some small renovation or alteration projects. (Testimony of Respondent, K. Alles, Stipulation) For the past three and one-half years, Lawrence M. Stoner, a certified general contractor and qualifying agent for Dynamic Construction Company, Inc. has engaged in joint construction projects with Univel, Inc. In such instances, Stoner obtains the building permits and supervised construction of the projects. At some undisclosed point in time, Kenneth Alles, Vice President of Univel, Inc. consulted with and obtained assurances from legal counsel that, based upon Univel's relationship with Stoner and Dynamic Construction Company, it was unnecessary for Stoner to file a formal application as qualifying agent for Univel. In fact, Alles was of the opinion that at one point Univel had three qualifying agents simultaneously who were Respondent, Stoner, and Boland. (Testimony of K. Alles) At some undisclosed time subsequent to Respondent becoming the qualifying agent for Univel, that firm entered into a construction contract with Palm Harbor West, Inc. to construct a condominium building called Harbour Cay. Stoner supervised the construction of the building. There was an on-site superintendent of construction who was employed by Univel. Stoner and Univel co-signed a bank loan agreement for the project. (Testimony of K. Alles) Respondent was not involved in the Harbour Cay project in any respect. He did not affix his license number to the contract nor did he supervise of have any connection with the project. (Testimony of K. Alles, Stipulation) On March 27, 1981, the Harbour Cay building collapsed causing multiple deaths and injuries. (Testimony of K. Alles, pleadings)
Recommendation That the Construction Industry Licensing Board administer a written public reprimand to Respondent Bruce Alles for violation of Subsection 489.119(5), F.S., pursuant to Subsection 489.129(j), F.S. DONE and ENTERED this 23rd day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1981. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 James K. Kinnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
