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
The Issue Did Respondent, Commercial Concrete Systems, LLC (Commercial Concrete), discriminate against Petitioner, Bernard Maybin, because of his race or color?
Findings Of Fact Mr. Maybin was an employee of Commercial Concrete in 2019. Mr. Maybin is a dark-skinned African-American. In 2019, Commercial Concrete reprimanded Mr. Maybin for tardiness and absenteeism on January 18, April 15, and August 16, 2019. On November 8, 2019, Commercial Concrete terminated Mr. Maybin for being absent all of the preceding 30 days. This was consistent with its policy of terminating employees who were absent for thirty days without communicating with the company. During at least some of the days that he was absent, Mr. Maybin was recovering from an automobile accident. He advised Commercial Concrete of the accident. But he did not advise it which days he would be unable to work due to the accident or request leave. He also did not communicate with Commercial Concrete during the period of absenteeism, beyond advising it of the accident when it first occurred. There is no evidence that any non-African-Americans or light-skinned employees with attendance failings similar to Mr. Maybin's were treated differently than him. There is no evidence of statements by any manager or other employee of Commercial Concrete alluding to Mr. Maybin's race or color. There is no evidence that non-African-American or light-skinned employees were paid more than Mr. Maybin or received vacation pay that he did not, although his petition makes that allegation. When Commercial Concrete discharged Mr. Maybin, it was not aware that he had filed a complaint of discrimination with the Commission.
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Petitioner Bernard Maybin. 2 Federal case law dealing with Title VII applies when interpreting chapter 760. School Bd. of Leon Cty. v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981). DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 9th day February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Peter Shoup Commercial Concrete Systems, LLC 6220 Taylor Road, Suite 101 Naples, Florida 34109 Bernard Maybin 290 Lowell Avenue North Fort Myers, Florida 33917 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
Findings Of Fact During 1981, a five-story, ninety-eight unit condominium was constructed in Deerfield Beach, Florida. This condominium was called the "Beach House". The prime contractor on the Beach House project was "Morelite Construction Company." The licensed general contractor who qualified Morelite Construction Company at the time of the Beach House project and who was closely involved with that job was Mr. Raymond Orsi. The engineer who designed the Beach House was Mr. Alan Reese. Morelite Construction Company hired as a subcontractor "General Contractors of Florida, Incorporated," which firm was qualified by Respondent at the time of the Beach House project. At the time of the Beach House project and final hearing in this case, Respondent was licensed as a contractor as alleged in the Administrative Complaint, was qualifying agent for General Contractors of Florida, Inc. (hereafter GCOF) and responsible for that firm's work. GCOF was hired by Morelite as the "shell contractor." GCOF's contract called for GCOF to do all the concrete and masonry work in building the Beach House. GCOF was to build the structural shell of the building, leaving all plumbing, electrical, and finish work to be done by other parties. More specifically, GCOF was to construct all the plywood frames for the numerous concrete beams and columns for the Beach House, to assemble the steel reinforcing rods inside those forms, and then pour the concrete into the forms. The steel and concrete was supplied by Morelite. GCOF was also responsible for constructing the numerous concrete block walls throughout the condominium and pouring the concrete floors on each of the five levels of the condominium building. The floor joists and floor form work were done by other firms, and GCOF's responsibility was to pour concrete slabs on top of those joists and to assure proper thickness of the slabs. GCOF's contract called for the firm to construct plywood forms for the various concrete beams and columns on the Beach House, to assemble inside those forms the steel in reinforcing rods, and to pour the concrete into the forms. The steel and concrete was supplied by Morelite, but all labor and know-how was supplied by GCOF. As admitted by Respondent, after removing the plywood forms on numerous beams that had been assembled and poured by GCOF, it was discovered that extensive honeycombing on the bottom of the beams had occurred. Irregular void and pitted areas at the bottom of the beams were found where there should have been solid concrete. It was apparent that the honeycombing was caused by the failure of the concrete to reach the bottom of the forms. Although the Respondent asserted that the honeycombing was caused by an improper concrete mix which was supplied to him, slump tests performed by an independent testing laboratory from concrete as it as being delivered and used by Respondent, show that the concrete Respondent was using was in the range that would be required to properly form the beams. Acceptable construction practice calls for a contractor doing concrete work such as Respondent's firm to repair honeycombing within several days of removing the plywood forms in order to minimize rusting of reinforcing steel. The honeycombing was obvious to the naked eye and with a minimal degree at supervision by GCOF, it would have been immediately corrected. The honeycombing occurred because of Respondent's failure to sufficiently "vibrate" the concrete during the pour. Concrete is vibrated by placing a rapidly vibrating cylinder in the concrete as it is being poured into the form. The vibration tends to cause the crushed aggregate in the concrete to work its way around obstacles such as reinforcing bars and down to the bottom of the form. The honeycombing problem on this project was approximately ten times worse than would normally be expected on similar jobs of similar design and complexity. Ten percent of the concrete on this job was effected with honeycombing, whereas, normally only one percent of the concrete is affected. These voids and honeycombs constitute a violation of Section 2506.4 and 2506.6 of the South Florida Building Code which was in effect in Broward County, where the Beach House is located, when the project was being built. The Respondent received some off-color defectively mixed concrete and for one day concrete delivery was prematurely stopped. However, this occurrence was limited to one or two particular beams, and in any event did not involve the honeycombing problems, unfilled wall cell problems, or other problems alleged in the Administrative Complaint. GCOF's contract called for GCOF to place reinforcing steel in the concrete block walls throughout the project at a spacing of approximately four feet, and then to fill each such cell with concrete. Concrete block walls divided the condominium apartments from one another, and also constituted the exterior walls of the condominium building. The concrete block walls rested on the poured concrete beams for each floor. The walls were of the common variety of concrete blocks commonly seem throughout South Florida. Each such block contains holes or cells. The design called for having, approximately every four feet, a vertical series of blocks in which tee-holes were vertically aligned with one another from top to bottom of the wall. A long piece of reinforcing steel bar was then placed in the vertical series of block cells and the entire vertical series of cells was filled with solid concrete poured from above. There was a failure, however, to comply with the requirement concerning these reinforced masonry cells. On a typical section of this job, approximately 30 or more such vertical cells could be expected to be unfilled. In the same typical section of a comparable job where solid construction practices were being observed, approximately four or five cells could be expected to be unfilled. The cell problem on this project, as stated by one expert, was "grossly out of line." Moreover, in numerous cases the "cleanout holes," which were required by contract, were not present. There was a significant occurrence of instances in which reinforcing steel was not placed in the cells as required. The failure to fill the cells constituted a violation of Section 2704.10(d) of the Broward County Building Code in force when the Beach House was built. The honeycombing and unfilled cell errors occurred in GCOF's work over the course of approximately five months during which several floors of the building were being built and were seen throughout all three floors of the structure. GCOF's contract required that firm to pour the cement for each floor built. The concrete slabs should have been three inches thick, but varied in thickness from 1.75 inches to five and a half inches. It was Respondent's assertion that this variation was caused by a bow in the "Hambro" joists that were used on the Beach House. The "Hambro" joists refers to joists manufactured by the Hambro Company. Each joist has built into it a slight upward bow. The joists are supported an each end of the poured concrete beams. The joists are then covered with forms, and concrete is poured over the forms to constitute the floor of each level of the building. The weight of the concrete presses the bow out of the Hambro joist. It was Respondent's assertion that the thickness variation was caused by a design error in that the concrete weight was insufficient to press out the bow. Thus, Respondent asserted that the pattern of variation in thickness was that the concrete slabs were thickest at each side corresponding to the ends of the Hambro joists, and grew steadily thinner toward the center of the slab, where the joist bow brought the joist and subflooring to their highest point. However, field observations demonstrated that the thickness variations occurred randomly about the slabs as seen through the numerous plumbing holes routinely cut through the slabs. There was no pattern of the slabs being thinnest down their center lines. The variation in slab thickness was excessive as compared to acceptable practice in the industry, and deviated from what could be expected to be found on a similar job. The slabs were at times half as thick as required, and at other points they were twice as thick as required. These variations constitute violations of Broward County Building Code Sections 301.1, 301.2 and 301.4, in force when the Beach House was built. GCOF's duties on the job included placing certain corner steel. The corner steel was made of pieces of reinforcing steel rod, bent in an "L" shape, and placed in the beam forms at each corner of the building before any of the corner beams were poured with concrete. Their purpose was to tie the walls together where they met at 90-degree corners. The corner steel was required by the engineer's drawings and notes, and personnel of GCOF should have noted the requirement for placing said steel. None of the corner steel was placed as required. The absence of the corner steel was noted by other parties when the Beach House was approximately one-third complete. That entire one-third of the job had been done without placing any of the corner steel bars as required. The omission of the corner steel was a serious safety hazard and a violation of the Broward County Building Code Sections 302.1(e), 302.2 and 302.4. Voids in concrete columns existed underneath the beams on the project in at least two places. These vertical columns, which were formed, reinforced, and poured by GCOF were on the lower floor, and across their top ran an important horizontal beam. Upon inspection, it was noted that at the top of each column, which was designed to support the horizontal beam, the concrete had significant voids or empty spots. As a result, the load capacity of the columns was seriously weakened. These voids were critical and severely affected the structural integrity of the building. It was shown that they were visible to the naked eye and were of such a key nature that experienced construction personnel should have noted the problem immediately. Nevertheless, GCOF had removed the forms and had said nothing about the problem, allowing work to go on above without correction, adding another floor on top of the defective columns. When the problem was discovered an immediate temporary shoring all around the affected columns was ordered by the project engineer until repairs could be made. These voids constituted a violation of Broward County Building Code Section 2506.4. On July 22, 1981, the Deerfield Beach Building Department, which had jurisdiction of the Beach House job issued a stop work order on the project. The causes of the stop work order were the same deficiencies alleged in the Administrative Complaint, and described above. A series of meetings between the building department design engineer, the prime contractor, the owner and GCOF, concerning necessary remedial work was necessary. Certain repairs were done, and on August 7, 1981, the building department allowed work to resume. In July of 1981, Morelite Construction Company fired GCOF from the job due to dissatisfaction with the quality of GCOF's work. GCOF entered into its contract for the Beach House job on March 19, 1981, began work in March, and had been on the job approximately five months prior to being fired. The competency of GCOF's personnel on the job and the quality of supervision provided by Respondent and Respondent's personnel were constant problems throughout the job, and this was repeatedly brought to Respondent's personal attention. After the building department issued its stop work order, a series of meetings were held between the building department, the owners, the general contractor, Mr. Reese, and representatives of GCOF concerning necessary remedial work. Respondent did not attend any of those meetings, despite the fact that it was GCOF's work that was in issue. During the five months that Hector Vergara, the project engineer, inspected GCOF's steel placement, he never saw Respondent in the building. It was the Respondent's standard procedure to check on the job by stopping his car outside the site end asking an employee via mobile radio how the job was going. On occasion, Respondent would go to the construction shack on the job, but never ventured into the project. The failure to reinforce the masonry block walls resulted from insufficient supervision by GCOF on the job. GCOF never inspected the placement of steel reinforcing prior to the engineer' inspection. The problems cited in the Administrative Complaint were caused by a lack of supervision by the workmen of GCOF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for six months. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984. COPIES FURNISHED: Ira L. Varnum Post Office Box 3100 Deland, Florida 32720 Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
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
Findings Of Fact Respondent is and at all material times has been a registered general contractor in the State of Florida. He holds license number RG 0045864. At all material times, Respondent has been the qualifying agent for Bill Walker Construction Co. On June 30, 1986, Respondent and Bill Walker Construction Company entered into a contract with Floyd Minks for the construction of an addition to a building owned by Mr. Minks and located at 2700 Partin Settlement Road, Kissimmee, Florida. The construction to be performed by Respondent was to follow a set of plans that had been drawn up by architects whom Mr. Minks had previously retained. The architects' plans called for Respondent to fill with concrete the concrete block cell that formed the column immediately adjacent to the door permitting vehicular access to the building. The architects' plans also called for Respondent to fill with concrete the precast lintel over the above-described doorway. Respondent failed to pour any concrete into the above-described concrete block cell and failed to fill completely the above-described lintel with concrete. The failure to follow the plans in these regards rendered the building addition structurally unsound. The failure to fill the concrete block cell rendered the doorway more likely to collapse as a result of the collision involving a vehicle carelessly driven through the doorway. The failure to fill completely the lintel makes it impossible to anchor the bar joists, which leaves the roof insufficiently secured to the building. The concrete block cell and lintel have still not been filled with concrete. However, Mr. Minks has never demanded that Respondent take care of these matters, and Respondent has always been willing to do so at his expense.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of gross negligence or incompetency in the practice of contracting and imposing an administrative fine of $500. ENTERED this 20th day of May, 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 20th day of May, 1988. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William L. Walker 4050 Citrus Street Kissimmee, Florida 32741 Fred Seeley Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact About seven o clock on the morning of May 23, 1983, Michael S. Boyden telephoned the Pensacola offices of Shear Concrete Products, Inc. (Shear Concrete), and asked that 20 cubic yards of concrete be delivered to a construction site at 438 Creary Street. Under construction there was the house Mr. Boyden was building for himself and his family. (He has since finished it and moved in.) During the first conversation, somebody told him the concrete would arrive at half past ten. At eleven, with no concrete in sight, Mr. Boyden again telephoned; Danny Woods or Terry Knowles told him the concrete was on the way. In fact, it was at least five minutes before one before the first Shear Concrete truck was loaded, and this truck reached the site about two in the afternoon. Thirty-five or forty minutes later, the first truck had been emptied of concrete. The second Shear Concrete truck was loaded at quarter past one, but reached the construction site within minutes of the time the first arrived. Mr. Boyden, a concrete finisher and three other men he had hired were all present at the time the second truck arrived. At the finisher's direction, water was added to the concrete in the second truck; and its contents were also eventually emptied, wheelbarrow by wheelbarrow. By half past three, it was clear that a greater quantity of concrete would be needed; but it was evening before the finisher, Caesar Johnson, told Mr. Boyden that the concrete from the second truck was not setting up properly. Once cement, sand, water and gravel are mixed in a concrete mixer, a reaction begins that runs its course regardless of whether the mixture is poured in time. (The time this reaction takes depends on, among other things, how hot the day is.) If mixing is still going on when the concrete "gets hot," the elements of the mixture do not cohere and the batch is no longer useful as concrete. Adding water retards the reaction to the extent it acts as a cooling agent, but it does not reverse the process. By the time the mixture was poured into the Boydens' foundation, it was no longer suitable for its intended use. The other concrete had hardened by the next day, but concrete from the second truck, the one driven by Ronald Lane Thompson, was soft and friable. Mr. and Mrs. Boyden incurred expense in removing the miscongealed concrete. They ordered and received a replacement load on May 31, 1983, which was satisfactory. They have never paid for this load, even though Shear Concrete has billed them and given them a "notice to owner" in an effort to preserve its rights under the mechanics' lien law. Petitioner's proposed findings of fact have been considered and adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, conclusive or subordinate.
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
