STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-625

)

JULIO G. BATISTA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on May 10, 1977, in Room 37, Third Floor, South Wing, Sarasota County Courthouse, Sarasota, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case came on to be heard upon an Administrative Complaint filed by the Florida Construction Industry Licensing Board against Julio G. Batisto alleging that Batista had willfully or deliberately disregarded and violated the applicable building codes or laws of the State or any municipality, cities or counties of the State contrary to the provisions of Section 468.112(2)(a), Florida Statutes.

At the hearing the Florida Construction Industry Licensing Board introduced substantial and competent evidence that violations of the building codes of the City of Sarasota had occurred on construction undertaken pursuant to building permit No. 1252 issued by the City of Sarasota for the construction of the Solimar Condominiums, construction of which was taken over by Julio Batista on or about June 12, 1973. Julio Batista presented evidence that the mortgage company which had financed construction of the building went into bankruptcy, defaulted upon its contractual commitment of monies to Batista, and through no fault of his own, Batista was unable to correct violations of the building code of the City of Sarasota. Therefore, Batista asserted he had not willfully or deliberately violated Section 468.112(2)(a), Florida Statutes.

APPEARANCES

For Petitioner: Barry Sinoff, Esquire

1010 Blackstone Building

Jacksonville, Florida 32202

For Respondent: John Patterson, Esquire

Livingston & Patterson, P.A.

46 North Washington Boulevard Sarasota, Florida 33577

FINDINGS OF FACT

1. Julio Batista is a licensed general contractor holding license No. CG C001094 issued by the Florida Construction Industry Licensing Board to Julio G. Batista, d/b/a Goba Construction Company.

2. Goba Construction Company became the licensed general contractor on a construction project known as Solimar Condominiums for which the building permit identified as Exhibit 2 was obtained. Julio Batista took over the construction of the Solimar Apartments on June 12, 1973, several months after the original permit was obtained.

   
   

3. Coastal Mortgage Company and Goba Construction Company entered into a note and mortgage for a building loan of $1,100,000 on or about June 26, 1973. Notice of this commitment by Coastal Mortgage was given to Batista by letter on June 4, 1973. In June, 1975, Coastal Mortgage Company failed financially, and was unable to provide the balance of the financing originally obligated to Goba Construction Company.

   
   

4. Goba Construction Company commenced construction on the Solimar Condominiums after June 12, 1973 and worked on the project from June, 1973 until early 1975. In early 1975, active construction on the project slowed to all but a halt. During this time the construction project was inspected by Sarasota building officials who pointed out and requested correction of conditions which were contrary to the building code of Sarasota and to the plans and drawings submitted to the building officials for construction of the building. Copies of the ordinance adopting the Southern Standard Building as the official building code of Sarasota and a copy of the Southern Standard Building Code were submitted as Exhibit 1 and Exhibit 1A, late filed.

   
   

5. Testimony and evidence was introduced that steel reinforcing rods used within reinforced concrete were in some instances not completely covered. It was further demonstrated that certain aspects of the construction as built did not conform with the plans originally submitted for the project. Specifically, it was determined that the balconies were flush with the interior floors instead of having a short step down to the balcony. In addition, the stairs in the stairwells were not constructed plumb, level, with treads of the correct width and height, and with treads encroaching upon the landings.

   
   

6. Julio Batista was made specifically aware of the violations and advised to have them corrected by the building authorities of Sarasota.

   
   

7. Towards the latter portion of 1975, Coastal Mortgage sued Goba Construction Company and Batista in a foreclosure action on the Solimar Condominiums project. Goba Construction Company and Batista counter-sued seeking damages as the result of Coastal's breach of the contract for financing of the project. These suits were eventually settled by Goba Construction Company and Coastal Mortgage, with Goba Construction and Batista being released from all obligations on the mortgage and note, and paid $15,000 by Coastal Mortgage. As a part of the settlement, Goba and Batista conveyed any interest which they had in the Solimar project to Coastal Mortgage.

   
   

8. Julio Batista testified stating that he is willing and has been willing to correct the deficiencies existing in the Solimar Condominiums; however, that the failure of Coastal Mortgage, through no fault of his, prevented him from obtaining the financing necessary to complete the project to include correcting the deficiencies. Prior to the commencement of the proceedings in this case, the building authorities of Sarasota had ordered a halt to all further construction until the deficiencies were corrected. Until the officials ordered work ceased, efforts were continuing to complete the project and to complete the deficiencies existing, although this work was at a very slow pace.

   CONCLUSIONS OF LAW

   
   

9. Julio Batista is specifically charged with violation of Section 468.112(2)(a), Florida Statutes, the Board having stricken the allegations relating to violation of Section 468.112(2)(f) at the commencement of the hearing. Section 468.112(2)(a), Florida Statutes, provides as follows:

   
   

   "(2) The following acts constitute cause for disciplinary action:

   1. Willful or deliberate disregard in violation of the applicable building codes or laws of the state or any municipalities, cities or counties thereof.

      
      

10. The legal issue presented is whether a willful and deliberate disregard or violation can occur when the discrepancy or violation, after being brought to the contractor's attention, cannot be corrected because of a failure of financing which is beyond the control of the contractor. Willful and deliberate conduct requires something more than simple negligence. It requires an intention to do the act; in this case, violate the applicable building codes. To prove a violation the Board must prove that the contractor intended to violate the code. This may be done in several ways but the most common approach is to show that the contractor has failed to correct a violation of code after the violation has been brought to his attention by the building authorities.

    The violation then becomes the refusal to correct the fault as required by the code, as opposed to the actual deficiency.

    
    

11. There was no evidence presented that Batista intended that the construction be deficient and violate the building codes of Sarasota. There was evidence presented that deficiencies did occur, these deficiencies were corrected and others were not. Batista asserts that he is unable to make the corrections because his financing failed. Under the facts of this case, Batista's failure was not willful nor deliberate because he did not contribute to the failure of financing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against the license of Julio G. Batista as a general contractor.

DONE AND ORDERED this 29th day of August, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Telephone: (904) 488-9675

COPIES FURNISHED:

Barry Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

John Patterson, Esquire Livingston & Patterson, P.A.

46 North Washington Boulevard Sarasota, Florida 33577

Mr. J. K. Linnan Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

Docket for Case No: 77-000625

Orders for Case No: 77-000625