Findings Of Fact Respondent was licensed as a certified general contractor in the State of Florida at all material times. He held license number CG-C028693. As of May 20, 1988, this license was delinquent for nonrenewal and had been since June, 1987. At all material times while licensed as a certified general contractor, Respondent served as the qualifying agent for Quigley Homes, Inc., which is located in Palm Bay, Florida. In March, 1985, Ronald and Rita McCarty contacted Respondent after seeing a model house that he had constructed in the area. After negotiations, in May, 1985, Respondent, on behalf of Quigley Homes, Inc., entered into a contract with Mr. McCarty for the construction of a house at a price of $89,900. The contract included several pages of specifications and stated that completion was due within four months of commencement. The parties agreed to a set of blueprints shortly after the contract was executed and thereby satisfied the only contingency to the contract. Shortly thereafter, Respondent began preliminary work, such as ordering windows, site clearing and preparation, and obtaining necessary permits. In October, 1985, Mr. McCarty lost his job and his mortgage application was rejected. Respondent therefore ceased working on the house. At the time, the McCartys had paid Respondent the sum of $4495, which had been spent on start-up expenses. In July, 1986, Respondent resumed construction, under the same contract, shortly after being told that Mr. McCarty had applied for another mortgage after obtaining a new job in January, 1986. In August, 1986, a subcontractor poured the concrete slab for the house. The day prior to the pour, Mr. McCarty discovered that certain plumbing, which had to be in place before the pour, was missing. Unable to reach Respondent, Mr. McCarty himself informed the plumber of the omission. The plumber installed the necessary plumbing before the pour. A day or two prior to the pour, Carrol Smoot, Building Inspector for the Town of Indialantic, had inspected the form and reminded the subcontractor in charge of the pour that J- bolts needed to be added before the pour. J-bolts are anchoring devices around which the concrete is poured. Once the concrete is set, the wall plates are placed under the hook of the J- bolt in order to secure the house to the slab. Notwithstanding Mr. Smoot's reminder, the pour proceeded without the J- bolts in place. The pour had several other problems. A portion of the concrete garage floor was not square because the form had been off by about 4" at the time of the pour. The rear porch floor sloped too steeply toward the house. The slope of the front porch was also too steep. There were various "bird baths" or depressions in the slab. On August 27, 1986, Respondent and the McCartys met with Mr. Smoot at the work site. Following the meeting, Mr. Smoot sent a letter to Respondent dated August 29, 1986, in which Mr. Smoot required Respondent to take certain corrective action. The letter required two probe tests of the concrete in place, the installation of stud wall anchor bolts, the correction of the out-of- square corner, the topping of low spots in the slab with Ardex, and the repair or replacement of the incorrectly sloped rear porch. In September, 1986, two portions of the slab passed by considerable margins separate probe tests designed to test the strength of the concrete. Shortly after the August 27 meeting, Respondent suggested to Mr. Smoot that Hilti nails, rather than anchor bolts, be used to secure the wall plates to the slab. Hilti nails are an acceptable, but less desirable, alternative to J- bolts. However, after the slab is poured, it is much easier to install Hilti nails than J-bolts. Both Mr. Smoot and the McCartys agreed to Respondent's proposal. At the same time, the excess slab at the unsquare corner was cut off and, pursuant to Mr. Smoot's orders, additional concrete was poured and attached to the original slab by means of stainless steel bolts. Respondent offered to apply Ardex to the rear porch in order to level it and improve the concrete's rough finish, which had been caused by rain during the pour. Ardex is a topping material applied to concrete in order to level the surface. Respondent also offered to apply a coat of Kool Deck, such as that found around swimming pools, over the Ardex. The McCartys rejected the Kool Deck, but agreed to the Ardex. When terminated, as discussed below, Respondent had not applied the Ardex; however, he was postponing the work so that the finish would not be marred by later construction work. Respondent removed and replaced the front porch slab. He ground the remaining slab in order to alleviate the unevenness. It is unclear whether Respondent also applied Ardex to other portions of the slab in order to eliminate the depressions. Depressions in slabs are not uncommon and grinding and topping materials are often used to level uneven slabs. Following most if not all of the concrete corrective work, a subcontractor began the framing job. At about this time, shortly after the slab grinding was completed, C. C. Holbrook replaced Respondent as supervisor of the job for Quigley Homes, Inc. Mr. Holbrook was a certified general contractor with 30 years' experience. At the time, Respondent had built only 8- 10 houses and was considerably less experienced than Mr. Holbrook. When Mr. Smoot was called to inspect the framing, he found that the Hilti nails had been driven through the wall plate improperly. Instead of having been staggered on either side of the centerline of the wood plate, each nail had been driven into the center so as to split the plate in places. This problem was later corrected by driving more Hilti nails on either side of the centerline. Similar nailing problems occurred with the roof sheathing and fiberboard. Mr. Smoot required renailing of these items and, when this was done, approved the work. When the framing was about half complete, Mr. McCarty threw the framing subcontractor off the job due to Mr. McCarty's dissatisfaction with the quality of workmanship. In specific, he objected to the fact that one or more walls appeared out of plumb. At about the same time, which was late November or early December, 1986, the McCartys announced that they would no longer accept Hilti nails, even though they had already been installed. On December 22, 1986, Mr. Holbrook, on behalf of Quigley Homes, Inc. wrote a letter to the McCartys in which he stated that the company could not proceed with the construction without written approval from the McCartys of the Hilti nails. Quigley Homes, Inc. discontinued working on the job at about that time. In mid-January, 1987, Respondent's father, who is a certified general contractor with nearly 40 years' experience, met with the McCartys to try to resolve the differences between the parties. Respondent's father, David J. Quigley, Sr., has built over 20,000 residential units. Although unaffiliated with Quigley Homes, Inc., Mr. Quigley, Sr. had lent Mr. Holbrook to his son's company during a relatively inactive period before Mr. Holbrook was needed for a large residential development in which Mr. Quigley, Sr. was involved. At the meeting, Mr. Quigley, Sr. stated that all problems would be resolved. Mr. McCarty was unappeased, which led Mr. Quigley, Sr. to ask if Mr. McCarty preferred to have someone else finish the house. Mr. McCarty responded affirmatively. Mr. Quigley, Sr. stated that Mr. McCarty should inform Mr. Holbrook in writing of the existing problems so that Quigley Homes, Inc. could take care of them. Shortly after the meeting, Mr. McCarty called Mr. Holbrook to arrange a meeting to discuss the problems. Mr. Holbrook said that Mr. McCarty should mail him a written list instead. The McCartys never sent such a writing to Mr. Holbrook or Quigley Homes, Inc. A final exchange of correspondence took place between the McCartys' attorneys, whose letter was dated January 28, 1987., and Quigley Homes, Inc., whose letter was dated February 5, 1987. In its letter, Quigley Homes, Inc. restated its willingness to finish the job or leave the job and repair the items mentioned in the letter. At the time of the termination of Quigley Homes, Inc. from the McCarty job, Mr. Smoot had approved all stages of construction requiring inspection up to that time. However, numerous deficiencies in workmanship existed for which Respondent was responsible. Nearly all of these items were of a type that would have been corrected as construction proceeded on the house. These items included the uneven rear porch floor to which Respondent had offered to apply Ardex and Kool Deck, numerous window frames at different heights, two out-of- plumb walls, one or two incorrectly sized door openings, and a wavy roof ridge line caused largely by a few trusses that had been unevenly spaced. The repairs necessary to fix these items were minor. The wavy roof ridge line is not unusual, and the out-of-plumb walls had not yet been permanently attached. Additional work was required to correct Respondent's deviation from the plans in using screening rather than aluminum soffits. Also, the tilt of one exterior wall prevented the application of one row of bricks near ground level, although the absence of these bricks is not readily apparent. Two deficiencies were more significant. First, the garage floor was removed and replaced. The floor had suffered cracking and shrinkage. Although this portion of the slab had not been tested for strength, two other portions of the monolithic pour had passed strength tests. Petitioner failed to prove that the garage floor was structurally unsound or even seriously uneven. Appearance was the primary reason for the removal of the floor. Second, the contractor who completed the job had to convert the master bedroom ceiling from a cathedral ceiling to a conventional ceiling due to problems with the truss design. However, the first truss company to which Respondent took the McCartys' plans refused to do the work, claiming that the design was impossible. The problem as to the ceiling was due to an error in planning for which Respondent was not responsible. None of the deficiencies described above, except for the omission of the J-bolts, affected the structural integrity of the house. Once the Hilti nails were properly installed, no structural deficiencies remained. Petitioner's independent expert witness and the second contractor whom Petitioner called, declined to testify that the work was grossly negligent. There is no evidence that the McCartys demanded correction of any of the defects described in Paragraphs 25-28. There is evidence that Quigley Homes, Inc. was ready, willing, and able to correct such problems. Under the circumstances, the overall work, given the nature of the deficiencies, was not grossly negligent or incompetent. Like the work itself, the supervision was sloppy at times but was not grossly negligent or incompetent. According to Mr. Smoot's testimony, Respondent's absence during the inspections and portions of the pour is typical among residential general contractors.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 14th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 14th day of September, 1988. APPENDIX Treatment Accorded Petitioner's Proposed Findings of Fact 1-5. Adopted. 6. Adopted except that construction recommenced in July, 1986, and Mr. McCarty discovered that the plumbing was not in place on the day prior to the pour. 7 and 9. Adopted. 8. Rejected as recitation of testimony. Respondent's use of Hilti nails adopted. Remainder rejected as against the greater weight of the evidence and subordinate. Adopted in substance. Rejected as recitation of testimony except that the opening for a door in the garage was cut too small. Rejected as recitation of testimony except that certain trusses were not evenly spaced. Rejected as against the greater weight of the evidence. The majority of the repairs and replacement done by Joyal were unnecessary. Those repairs that were necessary would have been done at no expense to the McCartys by Quigley Homes, Inc. Rejected as against the greater weight of the evidence. Rejected as irrelevant. Respondent's personal involvement was not needed or required when Mr. Holbrook began to supervise the project. Treatment Accorded Respondent's Proposed Findings of Fact 1-2. Adopted. 3. Rejected as irrelevant. 4 and 6. Adopted in substance. 5. Adopted. Rejected as against the greater weight of the evidence and unsupported by the evidence, except that it rained during the pour, the slab had bird baths, the J-bolts were not installed, a meeting took place among the McCartys, Respondent, and Mr. Smoot, Respondent subsequently suggested the use of Hilti nails, and the parties agreed upon the use of Hilti nails and other corrective measures. Rejected as subordinate and recitation of testimony, except that the Hilti nails were, after a reinspection approved by Mr. Smoot. Rejected as subordinate. Findings concerning the source of delays are rejected as unsupported by the evidence. Neither Petitioner or Respondent produced sufficient proof to explain the source of delays apart from the substantial delay caused by the McCartys' inability to perform under the contract. Because the burden of proof on this issue is upon Petitioner, the insufficiency of the evidence means that Respondent cannot be found guilty of untimely performance. The employment of Mr. Holbrook and his 30 years' experience are adopted. Adopted. 12-14. Rejected as subordinate. 15. Adopted. 16-17 and 21. Rejected as irrelevant. See Paragraph 10 above. Adopted. Adopted in substance. Rejected as legal conclusion. Adopted in substance. Rejected as recitation of testimony. COPIES FURNISHED: Belinda Miller, Esquire Bruce D. Lamb Department of Professional General Counsel Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32399-0750 130 North Monroe Street Tallahassee, Florida 32399-0700 Elting L. Storms, Esquire Storms, Krasny, Normile & Dettmer Fred Seely 780 South Apollo Boulevard Executive Director Post Office Box 1376 Construction Industry Melbourne, Florida 32902-1376 Licensing Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues to be determined in this case are whether Respondents, Leslie Dickens and Dickens Land Clearing & Rock World, Inc., violated Department of Environmental Protection ("Department") rules that require a notice to be filed with the Department and an asbestos investigation conducted before a building is demolished; and if so, whether Respondents should pay the administrative penalties that are demanded by the Department.
Findings Of Fact The Department is the state agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Title 62. Respondent Leslie Dickens is an individual and President of Dickens Land Clearing & Rock World, Inc., which is an inactive, dissolved Florida corporation whose office was 9000 Panama City Beach Parkway, Panama City, Florida. On or about June 4, 2010, Respondents demolished a commercial building located at 2900 West 10th Street, Panama City. Respondents did not file a Notice of Demolition or Asbestos Renovation form with the Department before the building was demolished. At the time of the demolition, the building had been vacant for many years. The building had already been stripped of floor tiles, sheet rock walls, and insulation. Mr. Dickens testified that there was no asbestos in the building at the time of the demolition. However, Mr. Dickens did not conduct a thorough investigation to determine whether any asbestos was present. Instead, Mr. Dickens relied on an analysis that had been performed in 1996 by EnviroChem, Inc., that shows two samples from the building were analyzed for asbestos and no asbestos was detected. This analysis was admitted into evidence over the Department's relevance objection as Respondents' Exhibit 1. The document is relevant to the issue of whether the penalties assessed by the Department should be mitigated. Exhibit 1 does not demonstrate that a thorough investigation was conducted to determine whether any asbestos existed in the building at the time of the demolition. The Department does not know whether the building ever contained any asbestos.
The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: l. At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and the issuance of, general permits for the construction and operation of a construction and demolition debris disposal facility in the State of Florida. Petitioner Frank Strout, submitted an application for a General Permit for the construction and operation of a Construction and Demolition Debris Disposal Facility with the Department dated April 26, 1995, which was received by the Department on May 2, 1995. On May 16, 1995, the Department issued a Notice of Denial to Use a General Permit advising the Petitioner that his request for operation of a construction and demolition debris disposal facility did not qualify for a general permit based on the information submitted by Petitioner in his application dated April 26, 1995, and received by the Department on May 2, 1995. The property upon which the proposed construction and debris disposal facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location is the same as the location of the construction and demolition debris facility owned by Petitioner that previously operated under a permit issued to Petitioner in April, 1990, which expired due to Petitioner's failure to timely file for an extension of that permit with the Department. However, the disposal area will not cover the entire area of the disposal area of the previous permitted facility. The Notice advised Petitioner that he had not provided the Department with supporting information demonstrating compliance with the construction demolition debris disposal requirements of Chapter 62-701, Florida Administrative Code, as follows: The prohibitions of Rule 62-701.300(2), Florida Administrative Code, have not been addressed. Documentation indicating that the site does not violate these prohibitions was not provided. The airport requirement of Rule 62- 701(12), Florida Administrative Code, was not addressed. Information indicating the location of airports within a 5 mile radius of the site was not provided. A site plan which meets the requirements of Rule 62-701.803(1)(a), Florida Administrative Code, was not submitted. A geotechnical investigation which meets the requirements of Rule 62-701.420, Florida Administrative Code, was not submitted as required by Rule 62-701.803(1)(b), Florida Administrative Code. A description of facility operations (operations plan) was not submitted as required by Rule 62-701.803(1)(c), Florida Administrative Code. A boundary survey was not submitted as required by Rule 62-701.803(1)(d), Florida Administrative Code. Closure plans and cross section details of the final cover which meets the requirements of Rule 62-701.320(7)(f), Florida Administrative Code, were not submitted as required by Rule 62- 701.803(1)(f), Florida Administrative Code. The Department has received a copy of a letter from Southwest Florida Water Management District (District) to the applicant, dated May 23, 1995, which indicates that the District is concerned about the proximity of the C&D debris to on- site wetlands. The letter from District, dated March 13, 1990, provided an exemption from surface water permitting requirements based on the District's understanding that the proposed operation would not change surface water drainage patterns, stormwater runoff quantities or quality. However, site inspections by the Department and District staff have indicated that surface water drainage patterns have been changed by the operation at the site. Therefore, a copy of a permit for stormwater control issued by the Department or the District shall be required pursuant to Rule 62-701.803(4), Florida Administrative Code. Information indicating the availability of equipment for the temporary storage of unacceptable wastes at the site, and segregation methods were not submitted as required by Rule 62-701.803(5), Florida Administrative Code. Compaction procedures and equipment were not described as required by Rule 62- 701.803(6), Florida Administrative Code. A description of access control methods and devices was not submitted as required by Rule 62-701,803(7), Florida Administrative Code. A description of waste inspection procedures was not submitted as required by Rule 62-701.803(8), Florida Administrative Code. The facility's operating hours were not provided to ensure compliance with Rule 62- 701.803(9), Florida Administrative Code. The closure plan submitted as required by Rule 62-701.803(10), Florida Administrative Code, is insufficient. Pursuant to Rule 62-4.070(5), Florida Administrative Code, the Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Reasonable assurance that Department standards will be met has not been provided. Pursuant to Rule 62-701.803(10), Florida Administrative Code, final cover and vegetation shall be established on each disposal unit within 180 days of final receipt of wastes for that unit. Since waste has not been disposed at the site since approximately March, 1993, and the area has not been closed, the requirements of Rule 62- 701.803(10), Florida Administrative Code, has not been met. There is pond on the Petitioner's property which is located to the north of both the existing and proposed disposal areas. The pond is located within 200 feet of the proposed disposal area. The pond is contained completely within the boundaries of the disposal site and on at least one occasion has discharged to surface waters. However, there is no evidence to show that there was at least a 25 year/24 hour storm event on the occasion when the pond discharged to surface waters. Petitioner has failed to furnish the Department with the necessary information for the Department to determine if the pond discharges from the site to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has failed to provide the Department with either a copy of a storm water permit or documentation that a storm water permit was not necessary Wetlands are located along the southern boundary of Petitioner's property upon which the proposed construction and debris disposal facility will be located. These wetlands are located within 200 feet of the proposed disposal area. Petitioner has offered to reconfigure the disposal area to meet the 200 feet setback. However, Petitioner has not submitted a site plan to demonstrate the manner in which compliance with the 200 feet setback would be achieved. There is a potable water well located on Petitioner's property upon which the proposed facility is to be located which is located within 500 feet of the proposed disposal area. The permit application proposes a maximum elevation of 84 feet for the disposal area with a 3:1 slope for the entire disposal area. Petitioner has not furnished the Department with the existing elevations within the proposed disposal area. Without these elevations the Petitioner cannot show how he would comply with the proposed maximum elevation while maintaining the required 3:1 slope. Likewise, without these elevations, the Department would be unable to determine if Petitioner is complying with the proposed maximum elevation while maintaining the required 3:1 slope. Petitioner has not provided the Department with a geotechnical investigation so as to allow the Department to determine if the site's subsurface features would adequately support the proposed disposal area. The evidence in the record shows that Petitioner has not addressed all of the Department's concerns set out in Finding of Fact 4 (a) through (o). However, based on the testimony of Petitioner and Robert Butera, the Department's witness, it appears that the Department would consider the concerns set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately addressed by Petitioner. Petitioner has failed to provide the Department with reasonable assurance that the construction or operation of the facility would be in accord with applicable laws or rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying Petitioner's application for a permit for the construction and operation of a demolition and debris disposal facility. DONE and ENTERED this 19th day of January, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact are set out in three unnumbered paragraphs which shall be considered as proposed findings of fact 1 through 3. Proposed findings of fact 1-2 are not supported by evidence in the record. Adopted in substance as modified in Finding of Fact 14. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 15. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Frank Strout, Pro se 11163 Agnes Street, Southwest Arcadia, Florida 33821 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772. On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or $9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or $19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made. The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted. From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started. Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6. On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block. Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above. When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards. Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks. Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5. Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards. Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry. These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result. The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom. Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging. Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe. Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general. Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day. He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders. Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed. Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a certified general contractor be suspended for six months, that he pay an administrative fine of $500.00, and that he be reprimanded. RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1718 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER Petitioner failed to number Findings of Fact submitted and included them in a section entitled FINDINGS OF FACT AND CONCLUSIONS OF LAW. However, as best as can be determined: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a Conclusion of Law. Rejected as a restatement of testimony. Rejected as a restatement of testimony. Accepted. Rejected as a Conclusion of Law. Accepted as evidence of prior disciplinary action. BY THE RESPONDENT None submitted. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard T. Warnky 4924 S. W. 11th Court Cape Coral, Florida 33904 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact On December 30, 1991, the Petitioner, Peter B. Dolinger, filed a Petition for Administrative Determination of Rule Validity. In the Petition, the Petitioner challenged Rule 33-11.013, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner alleged that he was serving a county jail sentence of one year, imposed on March 4, 1991. Subsequent to the filing of the Petition, the Petitioner was released from custody. The Petitioner is no longer subject to the rules of the Respondent, including the Challenged Rule. The Petitioner has failed to allege any facts which would support a conclusion that he is currently subject to the Challenged Rule or that the Challenged Rule has any continuing impact on him. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
