Judges: STEPHEN F. DEAN
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 04, 1990
Summary: Petitioner failed to prove Respondent violated the law in any way. Dismiss.
80-2074.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2074
)
RAYMON E. JOHNSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Formal hearing in this case was held pursuant to notice on September 3, 1981, in Gainesville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on an Administrative Complaint filed by the Florida Construction Industry Licensing Board against Raymon Johnson alleging that Johnson had violated Section 489.129(1)(b), Florida Statutes, by willfully violating local building codes; Section 489.129(1)(c), Florida Statutes, by violating Section 455.277(1)(a), Florida Statutes, by falsely representing a one-year warranty on a house; and Section 489.129(1)(k), Florida Statutes, by abandoning a project. At the hearing, the Board withdrew its allegation that Johnson had violated Section 489.129(1)(m), Florida Statutes.
At the beginning of the hearing, the Board's Counsel presented to the Hearing Officer a motion to withdraw as Counsel and motion for continuance proposed by Respondent's Counsel, who was not present. After consideration of the motion for continuance, that motion was denied because of its extreme lateness. Inquiry was made of Respondent, who was present, what he wished to do. He indicated that he wanted to proceed and would represent himself.
APPEARANCES
For Petitioner: Charles F. Tunnicliff, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Raymon E. Johnson, Pro se
Post Office Box 13981 Gainesville, Florida 32604
PROCEDURAL BACKGROUND
The issues in this case were:
Whether Respondent willfully violated local building codes;
and
Whether the Respondent misrepresented a one-year warranty on a house;
Whether the Respondent abandoned a project.
FINDINGS OF FACT
The parties stipulated to the following matters which are incorporated
in and made a part of the Findings of Fact:
The Respondent, Raymon Johnson, holds residential contractor's certificate Number CR C--4461.
The Respondent entered into a written agreement with Gary J. Stearman and Michelle Talisman to construct a residence at 2911 NE
9th Street in Gainesville, Florida, for $32,000.
The Respondent represented to the owners that the house would have a one-year warranty.
On or about December 12, 1979, the Respondent was notified by Al Davis of the City of Gainesville that there were code violations involved with the property at 2911 NE 9th Street,
and that based upon these violations a certificate of occupancy could not be issued.
On or about June 5, 1980, the Board of Adjustment denied Respondent's appeal of the code violations and instructed Davis to provide Respondent with a list of all the code violations to be corrected before a certificate of occupancy could be issued.
As of June 12, 1980, Respondent had not corrected all of the code violations.
Johnson was initially advised of three code violations. These were improper wood siding, improperly attached roofing shingles, and improper holes and coverage of holes in the house's foundation.
Johnson took steps to properly cover the holes in the foundation, had the subcontractor re-nail the roofing shingles, and controverted the allegation that the siding was improper.
Subsequently, Davis refused to approve the roof on the basis that in raising the shingles to add the fourth nail the subcontractor had broken the seal on the self-adhering shingles, irreparably damaging the shingles. Eventually, the roof was completely replaced, although the roofing contractor could not fix the exact date. This was done without cost to the home owners.
With regard to the siding, Davis based the determination that the wood was not suitable for siding on the determination that its moisture content exceeded the code requirements, which he in turn based upon the fact that the rough-sawn siding was not grade stamped.
Lumber is grade stamped by lumber mills. The right to grade stamp is granted by independent manufacturer's associations to mills which cut and dry lumber to the specifications of such associations.
Careful review of the Gainesville Building Code does not reveal any requirement that rough-sawn wood siding which is not structural or load-bearing to be grade stamped. See Section 1700.3 (page 17-2) and Section 1700.4 (page 17-4), Petitioner's Exhibit 3.
The code does provide that lumber two inches thick or less will not contain more than 19 percent moisture at the time of permanent incorporation in a building. See Section 1700 6 (page 17-2), Petitioner's Exhibit 3.
Johnson initially took samples of the siding from the four sides of the house to a lumber mill which graded lumber and had equipment for establishing moisture content. The results of the test of these samples were reported in a letter from Donald Carswell dated December 22, 1979. See Petitioner's Exhibit 5.
Carswell testified at the hearing that he used the same test on Johnson's samples that was used on the lumber which the mill grade stamps. The samples from the house contained from 7 to 14 percent moisture content.
Davis refused to accept this letter as proof that the wood was permissible for use as siding because the test showed the current moisture content and not the content as of the date it was installed on the house.
Johnson then provided Davis with a letter dated January 21, 1980, from James Griffes, whose mill had cut the wood siding in question. See Respondent's Exhibit 3. Griffes also testified at the hearing that the lumber in question was rough-sawn heart yellow pine and had been stacked for four months prior to sale to Johnson. In Griffes' opinion the lumber was at least of utility grade. He testified that the lumber was dry enough to meet the standards in his opinion.
Davis refused to consider the letter as proof of the moisture content because the lumber was not grade stamped.
Rough-sawn lumber is not grade stamped, although it is graded, because the stamping operation is a part of the planing procedure.
Johnson advised Davis that he was aware of rough-sawn lumber from Griffes' mill having been used in Gainesville. Davis indicated that when it had been used it was under circumstances in which an architect had approved the plans and accepted responsibility for its use.
Johnson then provided Davis with a letter, Respondent's Exhibit 2, from H. J. Kelley, Professional Engineer, dated January 22, 1980. In this letter Kelley stated, based upon the two earlier letters, that the siding met the standards of the Southern Standard Building Code, Section 1706.7, for its intended use. Davis refused to accept this as proof of the siding's appropriateness. Johnson appealed Davis' determination to the city's Board of Appeals. This appeals hearing was held June 5, 1980.
In April, 1980, the home owners obtained legal counsel, and he wrote Johnson a letter dated April 23, 1980, Petitioner's Exhibit 3. Various meetings were held between the parties during this period. One of these meetings resulted in preparation of a written agreement by the home owners' counsel, Petitioner's Exhibit 4. This agreement calls for replacement of the siding and roof as well as items not found by Davis to be in violation of the code.
Johnson did not execute this written agreement.
On June 5, 1980, the Board of Appeals held its hearing on Johnson's appeal of Davis' determinations. This appeal apparently limited to interpretation of Sections 1700.3, 1700.5, 1702.8.1 and 1302.5 of the Southern Standard Building Code. While all of these sections were not introduced at hearing, the minutes of that meeting, Petitioner's Exhibit 1, reflect that the Board of Appeals took up matters beyond those raised on appeal. This resulted in the Board of Appeals' direction to Davis to prepare a letter to Johnson setting out all violations of code which would have to be corrected in order for Johnson to obtain a certificate of occupancy The Board of Appeals took notice that it lacked authority to direct that the matters be corrected within a specific time. See Petitioner's Exhibit 1 (page 35).
Prior to the June 5, 1980, meeting, the home owners had advised Johnson not to come on the premises or to do further work on the house. They had also commenced a suit against Johnson's contractor's bond.
Johnson's attorney, Costello, wrote a letter to the home owners' attorney, Michael Davis, on August 13, 1980, which outlines the events subsequent to the Board of Appeals hearing. See Respondent's Exhibit 5. By letter of June 19, 1980, Costello advised Michael Davis that Johnson agreed to perform all repairs or corrections to comply with the code requirements on the condition that the home owners grant him access to the project and abate their suit. See Respondent's Exhibit 4. Michael Davis wrote Costello on June 30, 1980, advising that the home owners would not allow Johnson to complete the repairs. Meanwhile, the home owners continued their suit against Johnson's bond, in which they eventually received the monies necessary to replace the siding using another contractor.
CONCLUSIONS OF LAW
The Administrative Complaint charges that Respondent violated Section 489.129(1)(c), (d) and (k), Florida Statutes. These provisions are as follows:
(1) The Board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor
is found guilty of any of the following acts:
* * *
Violation of Chapter 455.
Willful or deliberate disregard and violation of the applicable building codes
or laws of the state or of any municipalities or counties thereof.
* * *
(k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to
be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause.
The facts do not support the allegation that Johnson willfully or deliberately violated the building code of Gainesville. The facts show there was a legitimate dispute on the code's applicability to the siding used on the house. Johnson attempted to satisfy the building official's request to substantiate the siding's moisture content and, when he failed, took an appeal. This, Johnson was legally entitled to do. However, prior to the appeals hearing, the home owners, who had already denied him access to the project, refused to grant him access unless he agreed to repair or alter items not in violation of the code. Johnson was not legally obligated to alter these items. Johnson's roofing subcontractor was allowed on site and completely replaced the roof he had already repaired once. After the appeal was decided against him, Johnson offered to repair the violations on the condition that he be given access to the project, and that the home owners abate their pending suit against his contractor's bond. The home owners refused and elected to continue suit on the bond. Under these facts, Johnson is not guilty of violating the code deliberately or of abandoning a project.
The Petitioner presented no written warranty, and the only testimony concerning the warranty indicates it was a general warranty of materials and workmanship for one year. If Johnson was refused entry to the premises by the owners to correct the violations, clearly he could not conform to the terms of the warranty. The facts do not sustain a conclusion that Johnson made false representations to the home owners concerning a warranty. None of the allegations against Johnson in the Administrative Complaint were proven.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the Respondent.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 27th day of October, 1981.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1981.
COPIES FURNISHED:
Charles T. Tunnicliff, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. Raymon E. Johnson Post Office Box 13981 Gainesville, FL 32604
Samuel Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 80-002074
Orders for Case No: 80-002074
