The Issue Whether the Respondent by erecting the two subject signs violated the state and federal regulation and laws by erecting one sign on the right of way of U.S. 319, a Federal Aid Primary Road, and erecting one sign within five (5) feet of said highway. Whether subject signs should be removed for lack of permits.
Findings Of Fact Claimant contended and Respondent admitted that the two subject signs were in violation of set-back requirements of Chapter 479 and the Federal Beautification Act as charged.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494. Background Mr. Hubert Anderson is a 70-year-old male (the "patient"). The patient initially saw Respondent in September, 1989, for replacement of a three-unit gold bridge that had been seated many years earlier. The patient did not experience any pain from the old bridge. However, the old bridge had to be replaced because tooth #8 had abscessed and needed to be removed. On October 30, 1989, Respondent constructed and installed a porcelain- fused-to-metal bridge. The bridge is a six unit, anterior, fixed bridge for teeth numbers 6-11. The pontics of the bridge are located in the space formerly occupied by the patient's two anterior teeth, numbers 8 and 9. The two crowned teeth on either side of the pontics, numbers 6,7, and 10,11, form the abutments in the bridge that hold the pontics in place. 2/ Respondent built up tooth number 10 with dissolvable dental cement. A non-dissolvable material should have been used to build up tooth number 10. The patient experienced generalized pain and soreness in the mouth immediately upon installation of the bridge by Respondent. The patient returned to Respondent's office approximately one month later complaining that everything hurt. Respondent told the patient that nothing was wrong. However, Respondent offered to replace the bridge if the patient would have root canals done on all four abutments. 3/ Respondent did not confirm his diagnosis with x-rays. Open margins caused by an ill fitting bridge can cause symptoms similar to those associated with the need for root canals including: sensitivity to hot and cold; sensitivity upon chewing or eating sweet, sour, or salty food; and generalized aching. Open Margins The pain experienced by the patient was caused by the ill fitting bridge constructed and installed by Respondent. The substructure of the bridge was so ill fitting that the entire bridge needed to be replaced in 1991. 4/ None of the bridge margins fit well around the abutment teeth. 5/ Tooth number 6 has grossly open distal and mesial margins. Tooth numbers 7 and 10 have grossly open distal, mesial, and facial margins. Tooth number 11 is sensitive to percussion and has open margins circumferentially. 6/ The open margins in the bridge constructed and installed by Respondent jeopardize the patient's health. The open margins present areas where bacteria and food debris can collect and lead to decay or plaque. Open margins also expose nerve endings in dentin and cause discomfort. 7/ Other Causes Excluded The open margins in the bridge constructed and installed by Respondent are not caused by decay. A porcelain-fused-to- metal bridge with properly adapted margins at the time the bridge is seated in the patient's mouth will not exhibit open margins over a short period of time unless there is recurrent decay which erodes the teeth away from the bridge margin. The patient does not exhibit recurrent decay. The patient's decay resistance is evidenced by his age and lack of fillings or cavities in his teeth. The absence of recurrent decay was documented in two separate dental examinations. 8/ The open margins in the bridge constructed and installed by Respondent are not caused by gum recision. The patient has no periodontal problems, including periodontal problems in the area where the bridge is located. 9/ The open margins in the bridge constructed and installed by Respondent are not caused by normal wear and tear. The open margins on a porcelain-fused- to-metal bridge do not expand under normal wear and tear. Even if expansion were to occur as a result of normal wear and tear, the expansion would be slight and would occur over a period of 10 to 15 years. The margins in the bridge installed by Respondent are gross margins that were present when the bridge was installed. They were documented by examination within two years of the date of installation. The open margins in the bridge constructed and installed by Respondent are not caused by expansion of the metal in the porcelain-fused-to-metal bridge. If the bridge margins were closed at the time the bridge was initially seated, and then later opened due to expansion of the underlying metal, the porcelain veneer on all of the abutments would have fractured. The porcelain on the patient's abutments is intact. 10/ Negligence And Incompetence Respondent is incompetent and negligent within the meaning of Section 466.028(1)(y). Open margins in the patient's bridge are the result of Respondent's failure to meet the minimum standards of performance in installing the patient's bridge. 11/ Prior to permanently cementing a bridge to a patient's mouth, a dentist should "try-in" the bridge, checking all margins, contacts, and occlusion by clinical examination and x- ray. Respondent failed to meet the minimum standards of performance for dentists by failing to detect the open margins at the time of the try-in and by failing to remake the bridge by retaking the impression and sending it back to the laboratory for re-fabrication. The patient complained of pain on at least two separate occasions. Respondent's failure to use x-rays to determine the cause of the patient's complaints of pain failed to meet the minimum standards of performance for dentists. All crown and bridge margins should end on sound tooth structure. The bridge installed by Respondent is short and does not finish on sound tooth structure. The failure to finish on sound tooth structure fails to meet the minimum standards of performance for dentists. The margin on tooth number 10 ends on the build-up of cement and not on sound tooth structure. The failure to finish the bridge on non-dissolvable material fails to meet the minimum standards of performance for dentists. Respondent failed to detect open margins when initially fitting the bridge on the patient and upon two subsequent examinations. Respondent diagnosed the patient as needing root canals without verifying the diagnosis with x-rays. Respondent failed to determine the cause of the patient's pain on two separate examinations including the failure to use x-rays for diagnostic purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 466.028(1)(y), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 18th day of July, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 18th day of July 1995.
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
Findings Of Fact JTA and DOT seek a complex air source permit from DER for construction of the Dame Point Bridge project in Jacksonville, Duval County, Florida. The application for the permit and supporting documents were filed and considered by DER in evaluating the permit. The proposed project is a 10.94 mile segment of a proposed easterly bypass around the City of Jacksonville. The project consists of a limited access, four and six-lane expressway which will become a portion of the Interstate 295 bypass system for Jacksonville. It will principally serve through traffic around urbanized Jacksonville and resident north-south traffic. The project extends from Monument Road, south of the St. John's River, to existing I-295 at U.S. 17, north of the River, and includes a six lane bridge over the St. John's River in the vicinity of Mill Cove and Dame Point. In addition to the bridge over the St. John's River, approximately 10,000 feet in length, the project includes seven grade separated intersections where major arterial roads serving urbanized Jacksonville intersect the project. The project will traverse high to medium density residential neighborhoods south of the St. John's River and medium to low density residential neighborhoods, developing industrial centers, and some rural property north of the River. Pursuant to Section 403.182, Florida Statutes, DER by formal agreement may delegate preview and evaluation of permit applications to qualified local programs. Such an agreement has been in force between DER and the Duval County Bio-Environmental Services Division since February 9, 1976. In compliance with that agreement, the Duval County Bio-Environmental Services Division reviewed and processed the Dame Point State Road 9-A extension application for a complex air source permit, determined that reasonable assurances of non-violation of ambient air quality standards was provided, and certified that conclusion to DER. DER then published a letter of intent to issue the permit on August 29, 1978. The Final Environmental Impact Statement (FEIS) for the project which was submitted with the application concluded that the project would be beneficial to the economic growth of the area by providing an improved transportation network. In addition, testimony established that the project would be needed in the near future by virtue of increasing traffic demand. Approximately forty to sixty percent of the north-south through traffic in the Jacksonville area is expected to use the facility. The proposed project would provide an efficient bypass for this traffic and could divert 7,000 to 10,000 vehicles per day from the downtown Jacksonville area upon completion. Evidence established that, as a direct result of construction of the project, downtown traffic congestion would be relieved; existing industry would receive more efficient transportation service; commuter traffic from southeastern Jacksonville to northern Jacksonville would be reduced by miles; transportation routes to education facilities would be improved; and tourist traffic would be routed around downtown Jacksonville. The benefits to costs ratio of the project is positive in that for every dollar spent to construct the facility, $2.80 might reasonably be expected to be returned to the community in the form of increased economic activity and more efficient transportation. Increased traffic demand in the Jacksonville-Duval County area is of such magnitude that, according to testimony at the final hearing, in the year 2000 the demand to cross the St. John's River is expected to exceed the capacities of all existing bridges, plus the proposed facility, if constructed, and another bridge crossing south of the city. JTA and DOT prepared projections for average anticipated future use of the project using the most recent, accurate and acceptable information available. Initial projections were based upon the Jacksonville Urban Area Transportation Study Network, 11WC. When the network was revised in 1977, JTA, in coordination with the Jacksonville Area Planning Board, revised the projections to be consistent with the updated Transportation Network plan for Jacksonville. This planning information, plus extensive historical data on population growth, urban development and changing land use patterns in the area of the project, were utilized to project future vehicle use for the project. The evidence clearly establishes that the proposed project generally will relieve downtown traffic congestion by diverting traffic around the city. Traffic projections indicate that the total vehicle miles traveled daily in Duval County might be reduced by as much as 600,000 miles if the project is constructed. Most of this reduction would result from eliminating circuitous routes through the downtown area. Traffic projections were in part based upon past experience with similar projects over a 10-year period, and included a factor for added traffic which might be generated by construction of the facility. The proposed project will be linked to I-95 north of Jacksonville, and will serve the southeast area of the city and provide a connection to the industrial center around Imeson Park to the north, in addition to offering a shorter and speedier route to local beaches. Average vehicle speeds through the open roadway portions of the project, and through intersections, were calculated according to commonly accepted traffic engineering methods. The evidence establishes that general roadway speeds should average 55 miles per hour through 1992, with a potential decline to 50 miles per hour by the year 2002. Average intersection speeds should vary from 45 to 20 miles per hour over the same time period. These calculations are based upon well-recognized and, long accepted traffic engineering data contained in the Highway Capacity Manual, 1965 edition. The method employed in these calculations is that commonly used by DOT throughout the State of Florida, and included consideration of potential future congestion as well as probable signalization of traffic at some intersections. The evidence establishes that JTA and DOT accurately analyzed roadway and intersection speeds for the proposed project according to accepted traffic engineering methods, and that reasonable predictions of air pollution loading along the project corridor based upon these speed calculations can reasonably be relied upon to establish non-violation of ambient air quality standards. Further, evidence in the record establishes that traffic speeds through the toll plaza to be constructed as a part of the proposed project were adequately analyzed. Average speeds and queuing through the toll booth facility were calculated using accepted average daily traffic projections for the project and assumed a 1,000 foot zone of deceleration/acceleration on either side of the toll booth. These calculations included deceleration, queuing, stopping at the toll booth, and acceleration away from the toll booth facility. The method employed in formulating these calculations followed recognized techniques outlined in the Transportation Traffic Engineers Handbook. DOT has asserted in the permit application here under consideration that the construction and operation of the proposed project will not violate DER ambient air quality standards. Using the traffic projections and average vehicle speeds discussed above, DOT utilized various computer modeling techniques which analyzed and modeled projected worst one-hour and eight-hour concentrations of carbon monoxide along the roadway and around critical intersections and the toll plaza. The Mobile I computer model was used to predict emissions of automobile related pollutants based upon the aforementioned traffic data. Included in the Mobile I computer program were various factors including highway speed, traffic volumes, vehicle mix, "cold" versus "hot" starts, ambient temperature, and pavement height. Emission factors generated from this computer model result in predicted pollutant loadings in grams per vehicle mile. In addition, another method, AP 42, Supplement 5, was also utilized to generate comparable emission factors. Data obtained from the Mobile I computer program and from AP 42, Supplement 5, is then programmed into another computer model, Caline II, which is a basic diffusion model designed to estimate concentrations of carbon monoxide at various points along and distances from the roadway. This computer model is a mathematical equation that simulates or predicts the concentration of pollutants at various points after they are released from their source and allowed an opportunity to mix with the atmosphere. The Caline II model can only project future expected carbon monoxide concentration levels. No computer model was used to project expected concentrations of hydrocarbons, nitrogen oxides, photochemical oxidants or other pollutants expected to be associated with the project because no such model is presently available to accurately project concentrations of those pollutants. This is due, at least in part, to the greater reactivity of those pollutants with other elements in the atmosphere. Factors included in the Caline II computer model in order to predict expected concentrations of carbon monoxide along a line source include traffic volume; a "K" factor, which is a percentage of daily traffic at a given point in "peak hour" conditions; highway width and height; wind speed; stability class; and wind direction. The result of this computer program is an expected "worst case" condition for one-hour and eight- hour concentrations of carbon monoxide along the roadway for the years 1982 and 1992. Computer program results, which included background ambient conditions for eight-hour concentrations, affirmatively established that expected concentrations of carbon monoxide will be considerably less than the DER one- hour standard of 40 milligrams per cubic meter, and the eight-hour standard of 10 milligrams per cubic meter. These DER standards were not exceeded at any of the intersections or along the roadway at any point. As indicated above, no computer modeling technique was utilized fox hydrocarbons, nitrogen oxides, photochemical oxidants, sulphur dioxide or total suspended particulate matter. Estimates concerning these pollutants were based upon AP 42, Supplement 5, which is a document promulgated by the United States Environmental Protection Agency, and the Mobile I computer program. These methods do not predict concentrations, but instead deal only with total emissions. The result of this analysis was that, given background levels of hydrocarbons in Duval County, the project, if constructed, either in whole or in the segment which is the subject of this permit application, hydrocarbon levels may be expected to be reduced, at least in part due to the increased average speed of vehicles using the proposed facility. In addition, since hydrocarbons appear to act as a precursor to the formation of photochemical oxidants, any reduction in the emissions of hydrocarbons can also be expected to reduce the levels of photochemical oxidants, which are a particular problem in Duval County, which has been designated a "non-attainment area" for photochemical oxidants. Further, data derived from AP 42, Supplement 5, and Mobile I, together with data from local monitoring programs, established that no violations of ambient standards are to be expected for nitrogen oxides and, since sulphur dioxide and total suspended particulate matter are not emitted in significant quantities from automobiles, no violation of air standards for these pollutants is to be expected as result of the project. In summary, testimony adduced at the final hearing demonstrated that studies submitted to DER in support of the permit application were prepared in accordance with valid, professionally and scientifically accepted methodologies. These studies adequately establish, not only that the project will not result in violations of state air quality standards, but that positive social, economic and environmental effects will accrue from construction of the proposed facility. Petitioners, JTA and DOT have submitted proposed findings of fact. Petitioner's Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's and DOT's Proposed Findings of Fact have also been substantially adopted in this order. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
The Issue The issue is whether Petitioners' application for site plan approval for a proposed renovation and addition to their restaurant should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this local land use dispute, Petitioners, Ypapanti and Sevasti Alexiou, who operate a restaurant under the name of Frenchy's Rockaway Grill, have appealed a decision by the Community Development Board (Board) to deny an application to renovate and expand their restaurant located at 7 Rockaway Street, Clearwater Beach, Florida. The Board, which is made up of seven local residents, acts as the local planning agency for Respondent, City of Clearwater (City). Although the City staff supports the project, the City is technically opposed to the application since the Board failed to approve the project by a 3-3 tie vote. In denying the application, the Board rejected the City staff's recommendation that the application be approved. Intervenor, Hunter Hotel Company, owns and operates a hotel known as Clearwater Beach Hotel which is contiguous to, and south of, Petitioners' property. It objects to the application on the grounds that "the criteria for the flexible development approval were not met nor proved, [and] that the relief requested [by Petitioners] is of such a magnitude that it is not warranted and cannot be allowed under the Code." As further clarified by Intervenor, the City's parking shortage in the Beach area is the "core issue on this appeal." Until the City solves the parking problem, Intervenor suggests that there should be a moratorium on development in the Beach area. Petitioners own and operate a popular and successful one-story restaurant and bar on a 0.38-acre lot at 7 Rockaway Street, Clearwater Beach, which fronts directly on the Gulf of Mexico. The property is zoned as a part of the City's Tourist District and is bounded by the Gulf of Mexico on the west, a municipal parking lot to the north, a motel on the east, and the Clearwater Beach Hotel on the south. Due to the small size of their lot, Petitioners seek to vertically expand their restaurant by adding a second story consisting of 3,487 square feet, including an approximately 2,300 square foot open deck and 1,200 square feet of enclosed area. Both sections will accommodate bar patrons and diners. Petitioners also intend to remove and replace a 945 square foot storage room attached to the south side of the building which is structurally unsound. To accomplish these changes, Petitioners will need "flexibility" in meeting setback and parking requirements. Because more than 95 percent of the City is now "built out," and very little land is vacant, the City has adopted comprehensive infill criteria for non-conforming structures, such as Petitioners' restaurant. The criteria which apply to Petitioners' project are found in Section 2- 803C. of the City of Clearwater Redevelopment Code (Code) and allow flexibility in promoting redevelopment and infill throughout the City, including the Clearwater Beach area. As pointed out by City staff, infill projects are often used on Clearwater Beach because there are so many non-conforming structures in that area. In determining whether a project should be given flexibility as an infill project, the City evaluates the proposed project against its infill criteria. Strict compliance with all criteria is not required, but rather the criteria are weighed or balanced collectively. If a project cannot meet a "significant number of [criteria], or a significant one in a meaningful way," then an applicant "would have problems [with gaining approval]." Once a project qualifies as an infill project, an applicant may then use flexible development standards for setbacks, height, size, and minimum off-street parking. In this case, Petitioners seek flexibility for setback and off-street parking requirements. As noted earlier, the main concern raised by Intervenor centers around item 9. of the criteria, which reads as follow: 9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development. Intervenor contends that this criterion was not satisfied, and thus the project cannot qualify as an infill project. In addition, in its Proposed Final Order, the City contends that Petitioners have failed to satisfy items 1. and 5., which read as follows: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; 5. Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater. Table 2-803 of the Code establishes minimum off- street parking requirements of 7 to 15 parking spaces per 1,000 square feet for restaurants in the Tourist District. Therefore, a restaurant of Petitioners' size (that was not an infill project) would be required to have at least 47 off- street parking spaces. In actuality, Petitioners have only 13, due to a variance having been previously granted. Since Petitioners intend to add around 3,400 square feet through the second floor addition, the Code would normally require a minimum of 24 additional parking spaces, or a total of 71. However, these off-street standards do not apply to infill projects. Instead, another provision in Table 2-803 of the Code provides that minimum off-street parking for infill projects shall be "[d]etermined by the community development coordinator based on the specific use and/or ITE [Institute of Transportation Engineers] Manual standards." Therefore, using the guidelines in the foregoing provision, the community development coordinator determines the number of additional off-street parking spaces, if any, that an infill project will require. Because the City staff concluded that a parking study would assist it in analyzing the specific use of the property, it requested that Petitioners perform a parking study. The study was conducted by Robert Pergolizzi, a certified planner, who has performed a number of parking studies during his career. The Code does not describe any criteria for a parking study for an infill project. Therefore, the staff looked at other sections of the Code in arriving at a methodology to be used for the study. More specifically, it first considered Section 2-803J.6.a., which provides in part that off-street parking requirements can be relaxed if "the physical characteristics of the proposed building are such that the likely uses of the property will require fewer parking spaces per floor area than otherwise required." Because the restaurant sits directly on the beach, the staff believed that the primary destination of many of the customers was the beach, and not the restaurant, and that the visit to the restaurant was a side trip by the customers. Thus, the parking study methodology was designed, in part, to confirm or disaffirm that assumption. Section 2-803J.6.c. also provides flexibility in off-street parking requirements if "adequate parking is available on a shared basis as determined by all existing land uses within 1,000 feet of the parcel proposed for development, or parking is available through any existing or planned and committed parking facilities." The staff used this section of the Code to determine that 1,000 feet was an appropriate distance to analyze available parking for a restaurant. Therefore, Pergolizzi was directed by the staff to analyze available parking within 1,000 feet of the restaurant. Pergolizzi conducted his study on August 25 and 26, 2000, the Friday and Saturday which preceded the Labor Day holiday weekend. It is undisputed, and the parties have stipulated, that Pergolozzi conducted the study entirely consistent with the agreed methodology. The study confirmed that the primary destination of 49 percent of the restaurant's customers was the beach, and not the restaurant. In other words, the expansion would not affect the parking demand generated by almost one-half of the customers. The study also confirmed that there was available parking within 1,000 feet of the restaurant to accommodate not only the existing business, but the proposed expansion as well. As noted above, Table 2-803 of the Code required that the community development coordinator determine the minimum off-street parking after consideration of the specific proposed use and/or the ITE Manual standards. Here, the City staff looked at the specific use, the ITE Manual standards, and the parking study to determine the minimum off-street parking required for the restaurant. It concluded that there was available parking within 1,000 feet of the restaurant and that no additional parking spaces were required. The community development coordinator concurred with the results of the study and analysis and likewise determined that the minimum off-street parking for the project were the existing 13 spaces. This determination was wholly consistent with the requirements of the Code. In recommending to the Board that the project should be given flexibility as an infill project, the staff's report contained the following conclusion: The proposal is in compliance with the standards and criteria for flexible development approval, with maximum development potential, requirements of the Comprehensive Infill Redevelopment Projects, and with all applicable standards of the Community Development Code. A more detailed analysis of how each of the ten criteria were satisfied is found in Petitioners' Exhibits 9 and 14 received in evidence. At the hearing on March 27, 2001, the City's assistant planning director also established that the proposed expansion and renovation complied with all applicable standards of the Code. Intervenor's expert witness, Gail Easley, a certified planner, questioned whether the methodology used by Pergolizzi complied with the Code. More specifically, she contended that the City was required to determine minimum off- street parking for infill projects in the manner described in Section 2-803C.9. That section provides that "[a]dequate off- street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development." If this contention were true, however, it would render meaningless the provision in Section 2-803C.8., which provides that "[f]lexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character in the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole." In other words, there would be no flexibility for off-street parking as permitted by that section. This would be contrary to the very purpose of infill projects. Witness Easley's interpretation is also inconsistent with Table 2-803, which states that "minimum off-street parking will be determined by the community development coordinator based on the specific use and/or ITE Manual standards." Under her interpretation of the Code, the community development coordinator would have no right to determine minimum off-street parking for infill projects based on the specific use and/or ITE Manual standards, despite clear language in the Code to the contrary. More importantly, the criteria in Section 2-803C., including item 9., are used to determine whether a project should be considered an infill redevelopment project under the Code. Item 9. is simply one of those criteria, and it does not establish minimum off-street parking requirements for an infill project. Witness Easley also opined that it was inappropriate for the parking study to consider on-street parking. However, the Code does not prohibit the community development coordinator from requesting a parking study which includes on- street parking. It only requires that he consider the specific use and/or ITE manual standards when determining off- street parking for an infill project. Other contentions that the methodology was flawed, including a concern about the date and time of the study and the use of 1,000 feet as a measuring stick for available parking, have been considered and found to be without merit. A contention was also made that certain other infill criteria were not met. However, there was no evidence to support these contentions, and the more persuasive evidence supports a finding that all criteria have been satisfied, and that Petitioners qualify as an infill project. The undersigned has also considered the testimony of the owners of two competing restaurants who object to the project. While they contended that the lack of parking motivated their opposition to the application, it is fair to infer from their testimony that they object mainly because they fear that Petitioners may capture some of their business through an expansion of their restaurant. Finally, in its Proposed Final Order, the City has contended that Petitioners have failed to satisfy a general standard contained in Section 3-913A.6., which requires that an applicant ensure that: [t]he design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts, on adjacent properties. Given the modifications agreed to by Petitioners in the following Finding of Fact, the requirements of this section have been met. In the nature of an affirmative defense, Petitioners have raised the issue of equitable estoppel and contend that Intervenor should be estopped from opposing the application. The facts underlying this argument are as follows. On November 21, 2000, the Board heard testimony and considered the application for the first time. At that meeting, Intervenor's counsel represented to the Board that "my client's concern is not the parking. My client's concern is because of proximity of noise and light intrusion." In light of these concerns, counsel for Petitioners and Intervenor reached an agreement wherein Petitioners agreed to limit the addition to the northern one-half of the existing building, construct an 8-foot concrete block wall on the south property line between the restaurant and the hotel, close the upstairs addition at 10:00 p.m. on week nights and 11:00 p.m. on Fridays and Saturdays, place no outside speakers and allow no live music on the upstairs addition, and direct upstairs lighting away from the hotel. With these accommodations, counsel for the hotel represented to the Board that "if [the Board] approve[s] this, you have addressed our primary areas of concern." After the close of public comments, the Board voted to approve the application by a 3-2 vote. Because four votes are required to approve an application, and one member was absent from the meeting, the matter was continued to the next meeting on December 12, 2000. By letter sent to Petitioners' counsel on December 5, 2000, Intervenor's counsel identified the "commitments at the preceding hearing, which [Petitioners were] willing to make to the Clearwater Beach Hotel." Upon receipt of that letter, Petitioners advised the City by letter that they were in agreement with Intervenor's counsel that "these are the conditions agreed to at the last CDB meeting, which shall be binding upon my client." Notwithstanding earlier representations, by letter dated December 7, 2000, counsel for Intervenor indicated that "the owners of Clearwater Beach Hotel have instructed us to object to the pending application. Upon further review, prompted by the renderings, the magnitude of this project is simply too great for the size of the property." The letter further stated that it was to be considered "as withdrawal of our prior letter and position of 'no objection,'" and that Intervenor would attend the December 12 hearing "to formally object." Petitioners have further contended that Board member William Johnson had ex parte communications with some of his neighbors concerning the merits of this application, and this constituted a departure from the essential requirements of the law. Section 4-206D.2. of the Code provides that "no member of the community development board or the city commission shall engage in any ex parte communications with any person in regard to the substance of a quasi-judicial matter which is to be considered by the board or commission, as the case may be." If such communications occur, Section 4-206D.3.a. requires that a member disclose these communications at the meeting. There is no record of any disclosure being made. At the first Board meeting on November 21, 2000, member Johnson had moved for approval of the application. Without any explanation, at the second meeting on December 12, 2000, he voted against the application. Member Johnson did not testify at hearing to confirm or deny Petitioners' allegation of wrongdoing. However, witness Pergolizzi testified that he spoke with member Johnson just after the December 12 meeting, at which time member Johnson allegedly admitted that he had such conversations with his neighbors and was sorry for his change of vote. But the out-of-court statements of member Johnson are hearsay in nature, do not supplement or explain any other competent evidence on this issue, and they cannot form the basis for a finding of fact.
The Issue The issue is whether Respondent's construction activities violated Department standards and created an unsafe road condition, as alleged in the Department's Amended Violation and Notice to Show Cause - Non-Compliance with Permit Conditions (Notice to Show Cause) issued on March 1, 2016.
Findings Of Fact Background The Department is the state agency responsible for regulating access to the state highway system. See § 335.182, Fla. Stat. To ensure that the motoring public is safe, the Department has adopted and incorporated by reference design standards, standard specifications, and a Plans Preparation Manual (PPM) that must be adhered to by contractors when working on state roads. See Fla. Admin. Code R. 14-96.008. Respondent is an Orlando engineering firm whose principal is Zhi "George" Guo, a registered professional engineer. The Guo family is the fee simple owner of a 37-acre tract of land located at 5615 Recker Highway (State Road 655) in an unincorporated part of the County. Around eight years ago, Mr. Guo began the process of developing the family property as a business park to be known as the Recker Highway Business Park Development. To provide access to the property from State Road 655, Mr. Guo was required to construct turn lanes, widen from two lanes to four lanes around 1,700 feet of roadway, construct paved and unpaved shoulders, and install guardrails and sod. The Department considers road widening to be a major project. Because all work was within the Department's right-of-way, a driveway connection permit and drainage connection permit were required. The project begins at Station 594.00 and ends at Station 611.00 on State Road 655. On October 16, 2008, Mr. Guo submitted to the Department an Access Application for a driveway connection permit. Among other things, the Access Application identifies the engineer of record (EOR), general contractor (GC), and certified engineer inspector (CEI) on the project. The EOR signs the plans and verifies that all work will be in accordance with Department standards. The GC is essentially the manager of the project and is responsible for its overall coordination. The CEI is responsible for making all inspection work on the project to ensure that the GC is performing work according to the permitted plans. This requires that the CEI be on the job site to observe and verify work done by the GC. The CEI must also submit daily reports to the Department documenting activities that take place each day while work is being performed. When all work is completed, the CEI requests that the Department make a final inspection and issue a final acceptance of the work. Although the CEI is normally one person, the CEI can be a combination of multiple people if they have a Construction Training and Qualification Program (CTQP) certification required to complete the components of the work, e.g., earthwork, asphalt, and maintenance of traffic (MOT). Mr. Guo's Access Application indicated he would serve as EOR and GC. It did not identify who would be the CEI, but Mr. Guo does not deny that he served as CEI. Notably, Mr. Guo submitted daily reports and assumed the duties and responsibilities normally associated with that position. Mr. Guo has never managed a highway construction project such as this, although he has done design work on several highway projects, mainly related to drainage-improvement work. As the GC, Mr. Guo signed and sealed the permitted drawings. As a general rule, different individuals serve as the EOR, GC, and CEI. If the CEI is also the GC, there are no checks and balances to ensure the project is built according to the permitted plans. According to the Department's expert, it is unethical for one person to serve as GC, EOR, and CEI on the same project. However, the expert had no explanation as to why the Department issued a permit to Mr. Guo under these circumstances, and the Department cited no rule or statute that prohibits this arrangement. The charging document does not allege any wrongdoing in this respect. Mr. Guo was concerned about an apparent conflict of interest created by him being the owner of the property, EOR, GC, and CEI. Accordingly, he hired two outside laboratories to perform materials testing, and he used two of his employees, one certified in earthwork and the other in MOT, but neither in asphalt, to act in his stead. There is no evidence that Mr. Guo informed the Department that he had delegated any CEI inspection responsibilities to other individuals. Although he asserts a request was made for the Department to inspect the paving progress as it was installed, there is no record of such a request. Indeed, Mr. Guo had no reason to assume, as he did, that the Department permit inspector would "fully perform the inspection work." If this were so, there would be no need for the CEI to perform any inspections on asphalt work. After being informed by the Department that a drainage construction permit was required, on January 28, 2009, Mr. Guo filed a second application for that type of permit. After additional information was provided by the applicant, on December 14, 2012, or around four years later, the Department issued to Mr. Guo Driveway/Connection Permit No. 2008-A-190-0071 and Drainage Connection Permit No. 2009D- 190-0003. The permit conditions required, among other things, that all work be performed in accordance with current Department standards, specifications, and permit provisions; the driveway connection not be used until final acceptance was given by the Department; the applicant be totally responsible for the cost of all work performed inside the Department's right-of-way; and the applicant accept all conditions of the permit, once work began. At hearing, Mr. Guo agreed that he must comply with all permit conditions. A pre-construction meeting was conducted on January 2, 2014. Mr. Guo attended the meeting and acted as the EOR, GC, and CEI for the applicant. Among other things, the purpose of a pre-construction meeting is to discuss the conditions in the permit and to answer any questions that an applicant may have before work begins. See also Fla. Admin. Code R. 14-96.003(2). At the meeting, Mr. Guo was given a copy of the construction guidelines, which spell out exactly what a contractor must do before, during, and after construction. He was also given a copy of "Minimum CEI On Site Inspections and Notifications," which identifies the specific duties of the CEI. These documents are also attached to his permits. At the heart of this controversy is a dispute over the actions taken by the Department's permit inspector while monitoring the project. A permit inspector is assigned to monitor the work on all state highway projects. The Department's Bartow District Office has only one permit inspector, Steve Logan, who is responsible for 400 lane miles of road in the County. Mr. Logan must drive through all the jobs that are under construction in the County and bring matters to the attention of the CEI on each project to ensure compliance with the Department's permitted plans, including items such as traffic control, lane closures, and spot slope measurements. He must also observe and verify the work done by the CEI, accept and review the daily reports submitted by the CEI, forward those reports to the permits director at the District Office, and work as the Department's communication contact with the contractor. He also receives asphalt mix designs from the CEI and forwards them to the Materials Department for approval. Mr. Logan replaced another permit inspector in February 2015, or just before the friction course of asphalt was placed on the roadway. The friction course is the third and final layer of road surface. When he assumed the position, Mr. Logan understood the Department had previously inspected the first two layers of road surface, i.e., the installation of an eight-inch lime rock base and a one and one-half inch structural asphalt layer. However, he knew that no final acceptance had been given since all work was not yet completed. Mr. Logan holds an asphalt level 1 CTQP certification, is currently an engineer intern, and is scheduled to take the professional engineer examination in April 2017. The certification means that Mr. Logan is qualified to perform acceptance tests for asphalt work on highways. Mr. Logan does not have authority to accept or reject any of the roadway construction on a permitted project. Authority to issue a final acceptance letter lies with the permits director in the District Office. A letter is normally issued after the permits director, permit inspector, CEI, contractor, and Department maintenance team jointly inspect the project after all work is completed. Mr. Logan himself made no final inspection. The Work To Date The asphalt paving work began in March 2014, the final course was laid in March 2015, and the last corrective work was completed in July 2015. Mrs. Asphalt, LLC, was the paving contractor used on the job. Although a final inspection was never performed, one of Respondent's employees made final payment and released Mrs. Asphalt after the July 2015 corrective work was completed. A release and final payment are normally given after all paving work has been approved and accepted by the Department. Although he was not on the site in July 2015, Mr. Guo contends Mr. Logan gave final approval for the work at that time. In April, May, October, and November 2015, the Department sent a punch list of items to Mr. Guo to be completed by his firm. A punch list identifies deficiencies that need to be corrected before a final inspection is made. It does not inform the CEI on how to resolve the deficiencies, and it places the permittee on notice that final acceptance will not be given until the items on the list are corrected. Slope deficiencies were not noted until several months after the corrective work was completed when a Department project administrator happened to be driving on the road after a heavy rain and observed ponding on many sections of the roadway. Mr. Guo met with the Department in early December 2015 in an effort to address not only the items in the punch lists but also the sloping concerns. On December 11, 2015, he submitted an alternative solution of spot repair. The Department rejected this proposal, as the proposed repairs would negatively impact surrounding asphalt that was constructed at a different slope. Mr. Guo submitted a second alternative solution, which would allow him to mill out (remove) 1.5 inches of pavement and overlay the friction course at 1.5 inches with a two percent slope. The Department rejected this proposed solution, as the best solution was to "remove what was out there." The Department has never issued a final acceptance letter for the project. The Notice to Show Cause, as amended, was issued on March 1, 2016. The Charges The Department is authorized to initiate an enforcement action whenever work on a state road does not conform to the permitted plans or violates the PPM. See Fla. Admin. Code R. 14-96.007(8). The Notice to Show Cause alleges that "the majority of paved areas, paved and unpaved shoulders, slopes, guardrail and other items" do not comply with Department standards or abide by the permitted plans. It further alleges this creates "an unsafe road condition" and constitutes a violation of Department rules. The Department estimates the cost to correct these violations is between $430,000.00 and $650,000.00. Although Respondent disputes this amount, it is unnecessary to resolve that issue at this time. State Road 655 is an undivided, two-lane arterial highway probably built around 100 years ago when different design standards applied. According to current PPM standards, a two-lane state highway must have a minimum eight-foot-wide shoulder that includes a minimum five-foot-wide paved section constructed with a two percent negative slope for the turn lane and a six percent negative slope for the paved shoulder area. See Dep't Ex. 8. The negative slopes allow water to drain off the road. A construction tolerance of no more than .2 percent is allowed. Id. To conform to these standards, Respondent's permitted plans call for the same slopes on travel lanes and shoulders. Although State Road 655 probably had a slope of one to one and one-half percent when it was first built, and paving slopes on the pre-existing lanes being widened are not exactly two percent, any current overlaying of the road requires a two percent slope. Mr. Guo contends he was told by two permit inspectors, "Chris" and Steve, that a slope of two percent or less was acceptable. Mr. Logan denies this assertion. There are nine items in the charging document, which identify necessary changes to reduce the hazardous roadway conditions and correct the improper construction. Items one, two, four, and seven relate to improper pavement slopes and improper paved and unpaved shoulder slopes on both the east and west sides of the roadway. Item three identifies a missing paved shoulder on the west side of the roadway. Items five and six identify the absence of a stabilized shoulder (material placed adjacent to a paved shoulder) on the east side of the roadway and the lack of any sod on the same shoulder. Item eight alleges the guardrail in front of the cross drain is deficient. To avoid flooding, item nine alleges the shallow ditch on the east side of the roadway should be relocated closer to the Department's right-of-way line and the roadside slopes should be modified, as shown in the permitted drawings. While not containing a specific charge, a tenth item warns Respondent that other issues may arise before final acceptance is given. The more persuasive evidence supports a finding that the slopes and shoulders identified in items one, two, four, and seven do not conform to the plans or PPM. Mr. Guo's own daily reports for the friction course corroborate this finding. Those reports reflect the slopes are two percent or less for the travel lanes and four percent for the shoulder slopes. This is contrary to the plans, which call for a two percent slope for travel lanes and a six percent slope for shoulders, with not more than a .2 percent deviation. The absence of appropriate negative slopes can create dangerous ponding conditions on the highway. Therefore, the charges in items one, two, four, and seven have been proven. The more persuasive evidence supports a finding that the work described in items five, six, and eight has not been performed. If not completed, these deficiencies can create a safety hazard and cause soil erosion. Therefore, the charges in these three items have been proven. At hearing, Respondent admitted that this work has not been performed and agrees to complete the work after the paving dispute is resolved. The more persuasive evidence supports a finding that the charge in item nine has been proven. When a roadway is widened, and a drainage ditch is located adjacent to the original roadway, to avoid possible flooding, the ditch must be relocated closer to the Department's right-of-way and roadside slopes must be modified. Although Mr. Guo contends otherwise, this work is an integral part of any road construction project. Mr. Guo has proposed an alternate design to address this item. Respondent's Contentions Respondent first contends that sections of other nearby state roads are not built to current standards and therefore the exact standards required by the PPM should not apply. Respondent identified various locations on State Road 655 and other state roads within a five-mile radius of the project that do not have an exact two percent slope. See Resp. Ex. C1, pp. 1-6; Resp. Rebut. Ex. 2. Because of this slope variation, Respondent asserts strict compliance with the PPM and plans should not be required. Consistent with this argument, Respondent admits that any pre-existing travel lanes on State Road 655 with slopes of 1.6 to 1.8 percent were overlaid with new asphalt using the same slope measurements. But this concern should have been raised at the pre-construction meeting before work began, and not after the paving was completed and a Notice to Show Cause issued. The contention is rejected, as the evidence supports a finding that a permittee is required to build to current standards, regardless of the condition of the existing roadway. In its PRO, Respondent argues the Department is equitably estopped from enforcing the requirement that the final paved surface have a slope of exactly two percent; the Department waived the requirement that the final paved surface have a slope of exactly two percent through representations made by Department employees; its liability, if any, was extinguished because Mr. Logan accepted the work; and the actions and representations of Mr. Logan render the Department liable for the as-built conditions.1/ These contentions are based mainly on the premise that Mr. Logan made representations to the subcontractor and/or Respondent's employees regarding the quality of the paving work and gave final approval after the corrective work was completed in July 2015. The friction course was installed over a three-day period during the week of March 18, 2015. The asphalt was installed by Mrs. Asphalt. On the first day, Mr. Guo arrived on site two hours after work began and on the other days he was not on site at all times. However, James Bearden, who is Respondent's foreman, and one other employee, Kerry Bearden, were on site at all times. Neither is certified to inspect asphalt. Except for the afternoon of the second day, Mr. Logan was present at all times. Using a four-foot calibrated smart level, Mr. Logan performed spot checks on the slopes while the asphalt was being laid, while James Bearden made slope checks every 25 feet or so. Mr. Bearden confirmed that Mr. Logan did not "check it as often" as he did. Although the spot checks he made appeared to be "acceptable," Mr. Logan did not perform any spot checks after the rolling was completed, and he did not write down any measurements that he took. At one point, Mrs. Asphalt's foreman requested information regarding the target slope. Mr. Logan informed him he should check with the client to obtain that information. Mr. Logan did not advise anyone that the work would pass final inspection. During the March paving work, Mr. Guo took no measurements, but after the paving was completed, he was observed making a few sloping measurements. Normally, the CEI will make numerous checks while the paving is being laid to ensure that the subcontractor is providing quality work and the equipment is adequate to perform the job. Respondent asserts, unpersuasively, that by allowing Mr. Logan to inspect the asphalt paving, function as the asphalt inspector on site, and give final approval, the Department interfered with the road construction. The facts belie this contention. At no time did Mr. Logan interfere with, or prevent, the contractor from taking slope or depth measurements. Although Mr. Logan would sometimes tell the subcontractor that work was not acceptable, he did not order the subcontractor to fix the unacceptable work. This is the responsibility of the CEI. Mr. Logan told Mrs. Asphalt's foreman that the July 2015 corrective work looked "good," but he was not asked by anyone if the subcontractor could be paid and released, or if his characterization of the work as "good" constituted final acceptance of the work. Contrary to Respondent's assertion, no representation was made by Mr. Logan that he was giving final approval. In fact, there has never been a request by the CEI for the Department to make a final inspection. It is evident from Mr. Guo's testimony that he either misunderstood the type of oversight provided by a permit inspector, or he never sought clarification on that issue before the work began. It is the CEI's responsibility to be present on the job site to observe and verify the GC's work. This means that Mr. Guo, or his certified designees, if any, and not the Department, are responsible for all inspections and to provide daily reports documenting the work activities that take place each day. Mr. Guo believed the subcontractor "only listen[s] to Steve," and the subcontractor "report[ed] directly to Mr. Logan" for "quality [control] decisions" rather than the CEI. As to the July 2015 corrective work, Mr. Guo instructed "the subcontractors [to] completely follow the instruction[s] from Steve" in making the necessary corrections to the slopes. He also believed, incorrectly, that all asphalt inspection work had been delegated to Mr. Logan and assumed that Mr. Logan was essentially supervising the project. In other words, he turned over all responsibility for inspecting the asphalt to the permit inspector. But as the record shows, Mr. Logan only made sporadic measurements, he had no authority to approve the work, and he did not direct the subcontractor's performance, reject its work, or put a stop work order on the project. James Bearden attended a meeting with Department personnel in November 2015. He recalled telling John Hayes, a Department construction engineer, that he paid and released the subcontractor after Mr. Logan "okayed the work." Mr. Hayes responded that "Steve didn't have authority to authorize that asphalt." Mr. Hayes did not testify, and Mr. Bearden's representation to Mr. Hayes that the work had been approved is incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order sustaining the charges in the Notice to Show Cause and requiring Respondent, within 60 days, to demonstrate satisfactory progress in completing the road construction. Otherwise, the Department may initiate action to effect the satisfactory completion of the work at Respondent's expense. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 12th day of October, 2016.
Findings Of Fact Six signs were described in a violation notice to Respondent Dandy Signs from Petitioner, Florida Department of Transportation dated July 7, 1977. The notice stated the signs were alleged to be in violation of Chapter 479 and rules 14-10.04; rule 14-10.03. By stipulation of the parties the charges on the signs listed were dropped except for the following two signs: a sign located one mile west of U.S. 1, State Road 44, Mile Post 28.25 with copy "Bob's Sandpiper Restaurant" and a sign located at Junction 17-92 Deland, U.S. Highway 17 (Section 35 Mile Post .02) with copy "Buddy Sheats". The foregoing signs have no permit and evidence was presented to show that each sign is nearer to a permitted sign than 500 feet. The Respondent admits that neither sign has been permitted and that both signs violate the spacing requirements. Respondent was given time to submit evidence that the signs had at one time been permitted, but no evidence was submitted to this hearing officer although the hearing was held in excess of three months before this order is being entered.
Recommendation Remove the subject signs and invoke penalty under Section 479.18, Florida Statutes. DONE and ENTERED this 3rd day of March, 1978. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1978. COPIES FURNISHED: Philip S. Bennett, Esquire Florida Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Dan Richardson, Owner Dandy Signs 324 Flagler Street New Smyrna Beach, Florida 32069
The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, attached hereto as “Exhibit A”, “Exhibit C”, and “Exhibit D”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from Brandon Mezzaro, Mike Bodree, Pete Parker, d/b/a World Asphalt (hereinafter “World Asphalt”), the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On November 9, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment to World Asphalt in Case No. 10-458-1A. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein World Asphalt was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On November 9, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on World Asphalt. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On November 18, 2010, World Asphalt filed with the Department a request for an administrative hearing (“Petition”) pursuant to section 120.57(1), Florida Statutes, challenging the Stop-Work Order and Order of Penalty Assessment. The Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-10929. A copy of the Petition is attached hereto as “Exhibit B”. 4. On December 2, 2010, the Department issued an Amended Order of Penalty Assessment to World Asphalt. The Amended Order of Penalty Assessment assessed a total penalty of $70,088.22 against World Asphalt. 5. On December 6, 2010, the Amended Order of Penalty Assessment was served on World Asphalt by certified mail. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On March 10, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to World Asphalt. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,000.00 against World Asphalt. 7. On March 10, 2011, the 2nd Amended Order of Penalty Assessment was filed with the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On March 15, 2011, the Department and World Asphalt filed a Notice of Settlement with the Division of Administrative Hearings. On March 17, 2011, Administrative Law Judge W. David Watkins entered an Order Closing File, which relinquished jurisdiction of the matter to the Department.
