STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Construction ) Industry Licensing Board, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1706

)

THOMAS J. EMBRO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on October 7, 1981 in Gainesville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Drucilla E. Bell, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Cynthia Holloway, Esquire

728 Northwest 8th Street Gainesville, Florida 32601

PROCEDURAL BACKGROUND

These proceedings began on May 21, 1981 1/ when the Petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board filed an Administrative Complaint against Respondent, Thomas J. Embro.

The Complaint alleged that Mr. Embro had violated the building code of the City of Gainesville by reroofing a residence without first obtaining a building permit. Mr. Embro responded to the Complaint on June 3, 1981 by requesting an administrative hearing. The case was forwarded on June 23, 1981 to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

At the final hearing Petitioner presented as its witnesses Mr. Philip Hundeman and Mr. Al Davis. Petitioner offered Exhibits 1-3 which were received into evidence. Respondent presented himself and Mr. Richard F. Rogers as his witnesses and offered no exhibits.

At the conclusion of the hearing Petitioner moved to amend the Administrative Complaint in paragraph 3 to show an address of 4119 N.W. 12th Avenue, Gainesville, instead of 411 N.W. 12th Avenue. This motion was granted without objection from Respondent. The parties were informed of their right pursuant to Section 120.57(1)(b)4. Florida Statutes (Supp. 1980) to file proposed findings of fact and proposed recommended orders. Petitioner filed proposed findings of fact. To extent that the proposed findings submitted by Petitioner are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v. Department of Environmental Regulation, 356 So. 2d 759, 763 (Fla. 1st DCA 1979).

FINDINGS OF FACT

1. The Respondent, Thomas J. Embro holds two licenses issued by Petitioner. They are RG0021774, registered general contractor, and RC0021647, registered roofing contractor. He has held these licenses since 1974.

   
   

2. Sometime in the fall of 1979 Respondent was hired by Richard F. Rogers to replace the roof on a residential structure located at 4119 N.W. 12th Avenue, Gainesville, Florida. At that time the house was for sale. Mr. Rogers, who is a real estate agent, wanted the roof replaced in anticipation of a Veterans Administration financed sale of the house to Mr. William Schrader.

   
   

3. Prior to beginning work on the roof Mr. Embro did not obtain a building permit from the City of Gainesville for the job.

   
   

4. On October 1, 1979 Mr. Schrader made a complaint to the Building Division of the City of Gainesville. His complaint stated that the roofing work performed by Respondent was unsatisfactory. Mr. Al Davis, a building inspector employed by Gainesville, reviewed the city records and determined that a permit had not been issued to Respondent for reroofing Mr. Schrader's house.

   
   

   On October 3, 1979 Mr. Davis wrote a letter to Mr. Embro which stated in its entirety:

   
   

   October 3, 1979

   
   

   Mr. Thomas J. Embro 3816 SW 18 Street Gainesville, Florida

   
   

   Dear Sir:

   
   

   We have received a complaint from Mr. Bill Schrader of 4119 NW 12th Avenue on the reroofing that you performed on his residence.

   After receiving the complaint I investigated out records and the work performed by your company and found the following violations:

   1. Our records indicate that a permit was not issued to reroof the above address, this is a violation of Section 106.1 of the Southern Standard Building Code.

   2. The roof material was not installed correctly. Shingles shall be installed in accordance to manufacture [sic] re-

      quirements and some parts of the roof are too flat for shingles.

   3. Interior damage has been caused by the roof leaking from not installing the shingles as required.

The above violations shall be corrected within

10 days from receipt of this letter.

Your compliance will make further action unnecessary.

Sincerely,

/s/ Al Davis Building Official

cc: Mr. Bill Dow, State Investigator Mr. Bill Schrader

1. Mr. Embro applied on October 25, 1979 for a permit from Gainesville for the work at 4119 N.W. 12th Avenue. The permit was issued on December 6, 1979.

   
   

2. It is not unusual in Gainesville for a contractor to begin a construction job before the appropriate permit is applied for or issued. When this is not a frequent practice of a particular contractor the City imposes no penalty. If the contractor habitually begins construction without permits, the City imposes a penalty by charging him double the regular permit application fee. Mr. Embro was not charged a penalty by the City in this case.

   
   

3. In the course of his contracting business Mr. Embro frequently asked his wife to make permit applications for him before he begins work. In this case he believed that she had applied for the appropriate permit.

   
   

4. The City of Gainesville allows persons other than the contractor to apply for a building permit on behalf of a contractor if the contractor has first filed an authorization with the City designating an agent. Mr. Embro filed such an authorization on February 13, 1980 for his wife to be his designated agent.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Sections 120.57(1) and 455.3225(4), Florida Statutes.

1. The Administrative Complaint charges Mr. Embro with violating Section 489-129(1)(d), Florida Statutes, (1979) by willfully and deliberately violating the building code of the City of Gainesville, Florida.

   
   

2. Section 489.129(1), Florida Statutes (1979) provides in pertinent part that:

   
   

   The Board may revoke, suspend, or deny

   the issuance of 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:

   * * *

   (d) Willful or deliberate disregard and violation of the applicable building

   codes or laws of the state or of any municipalities or counties thereof.

   
   

3. Here the Petitioner has failed to prove its case. The building code of Gainesville is not in the record. The Board did not seek to introduce the code into evidence at any time during the final hearing. No request was made to even take official notice of the code. 2/ Petitioner continued to neglect the code by not including any of its terms in its Proposed Findings of Fact.

   
   

4. Without the contents of the code which Mr. Embro is charged with violating it is impossible to adjudicate whether or not a violation occurred. The opinion testimony of Mr. Davis, the Gainesville building inspector, that there was a violation of the code is not an adequate substitute for a determination by the Hearing Officer, after a review of the code, that Mr. Embro had acted contrary to the code. Such a legal conclusion is not the province of witnesses like Mr. Davis. As stated in E. Cleary, McCormick's Handbook of The Law of Evidence, Section 12 at 28 (1972):

   
   

   Regardless of the rule concerning admissibility of opinion upon ultimate facts, courts do not permit opinion on a question of law, unless the issue concerns a question of foreign law.

   
   

   See Also 31 Am. Jur. 2d, Expert and Opinion Evidence, Section 69 (1967).

   
   

5. There is no competent evidence here from which it can be concluded that Mr. Embro violated the building code of the City of Gainesville. For this reason it cannot be determined that he is subject to discipline under Section 489.129(1)(d), Florida Statutes (1979). The Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Florida Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against Thomas J. Embro.

DONE and RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 November, 1981.

ENDNOTES

1/ The Administrative Complaint is dated May 20, 1981 but that appears to be a typographical error.

2/ Had a proper foundation been laid for such a request, official notice would have been proper. Section 90.202(8) and (10), Florida Statutes. It is now too late for official notice. Henderson Signs v. Department of Transportation, 397 So. 2d 769 (Fla. 1st DCA 1981).

COPIES FURNISHED:

Drucilla E. Bell, Esquire Assistant General Counsel

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Cynthia Holloway, Esquire 728 N.W. 8th Street Gainesville, Florida 32601

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD,

Petitioners,

vs. CASE NO. DPR 0002182

DOAH CSAE NO. 81-1706

THOMAS J. EMBRO, RC 0021647

3816 SW 18th Street Gainesville, Florida 32600,

Respondent.

/

FINAL ORDER

This matter came for final action by the Construction Industry Licensing Board on March 12, 1982, in Ft. Lauderdale, Florida. An administrative hearing was held pursuant to Section 120.57(1), Florida Statutes, and resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Upon consideration and review of said Order, as well as the complete record of this proceeding, it is

ORDERED:

1. The Findings of Fact contained in the Recommended Order are hereby approved and adopted and incorporated herein by reference.

   
   

2. The Conclusions of Law of the Recommended Order are hereby approved and adopted and incorporated herein by reference, with the exception of the Hearing Officer's conclusion that the Petitioner had failed to prove its case regarding the violation of the building code by Respondent failing to obtain a building permit. The Board hereby adopts the Petitioner's Exception to the Conclusions of Law and finds as follows: Mr. Al Davis of the Building Department of the city of Gainesville testified that it was a violation for a building to be started without the builder first obtaining a building permit. The Respondent, Mr. Embro, admitted that he did not have a building permit when he started the job and tried to claim that he thought his wife had obtained it. The evidence presented by Mr. Davis showed that Mr. Embro's wife could not have obtained a building permit in October 1979, because the affidavit which allowed her to obtain building permits was not filed until February, 1980. Therefore, it is clear that Mr. Embro began work on this project in violation of the Standard Building Code as adopted by the City of Gainesville and was consequently in violation of Section 489.129(1)(d), Florida Statutes.

3. The Board further rejects the Hearing Officer's Recommendation that the complaint be dismissed. The Board adopts the penalty suggested by Petitioner in its Exceptions.

THEREFORE

It is ORDERED and ADJUDGED that the Respondent shall pay a civil penalty in the amount of $250.

DONE and ORDERED this 19th day of March, 1982.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

John Henry Jones, Chairman

Docket for Case No: 81-001706

Orders for Case No: 81-001706