STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1341

)

GEORGE G. VINCENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on October 12, 1982, in Orlando, Florida.

APPEARANCES

For Petitioner: John O. Williams, Esquire

547 North Monroe Street, Suite 204 Tallahassee, Florida 32301

For Respondent: Gary Siegel, Esquire

292 U.S. Highway 17-92 Post Office Drawer 965 Fern Park, Florida 32730

By its Administrative Complaint filed February 23, 1982, the Department of Professional Regulation, Construction Industry Licensing Board, has charged the Respondent, George G. Vincent, of a violation of Section 489.129(1)(d), Florida Statutes (1981), alleging that he deliberately disregarded and violated the "Southern Standard Building Code", as adopted in Seminole County, Florida by failing to obtain a building permit for the construction of a roof and by failing to request a final inspection of the same roof, all of which is required by the building code adopted in Seminole County.

In support of the allegations in the Administrative Complaint, the Petitioner presented the testimony of Jack A. Mewhirter, Donald W. Flippent and Alfred Del'Alttibeaudierer. The Respondent presented the Respondent's own testimony in opposition to the allegations in the Administrative Complaint.

At the conclusion of the hearing the parties requested the benefit of a transcript of the proceeding and availed themselves of the right to file proposed findings of fact and conclusions of law. The transcript was filed on November 23, 1982, and proposed findings of fact and conclusions of law were timely filed within 20 days thereafter. In connection therewith, the parties waived the 30 day requirement for rendition of the Recommended Order, pursuant to Rule 28- 5.402, Florida Administrative Code.

All proposed findings of fact and conclusions of law submitted by counsel have been considered herein. Those findings of fact not adopted herein are rejected as being either not supported by competent substantial evidence, as immaterial or irrelevant to a resolution of the issues in dispute or as not creditable. Those conclusions of law not adopted herein are deemed either incorrect or not consistent with the findings of fact. To the extent that the parties proposed findings of fact and conclusions of law are consistent with the Findings of Fact and Conclusions of Law contained herein, they are hereby adopted.

The issue to be resolved in this proceeding is whether the Respondent failed to obtain the required building permit and failed to obtain the required final inspection of the roof and, if so, whether that is a deliberate violation of Section 489.129 (1)(d), Florida Statutes (1981).

FINDINGS OF FACT

1. The Respondent is a registered roofing contractor, having been issued license number RC 0034898. He operates a business known as B & P Roofing at 244 Tollgate Trail, Longwood, Florida. The Respondent has appropriately qualified the business name of "B & P Roofing" with the Petitioner.

   
   

2. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, with regard to licensure of building contractors, the regulation of their licensure status and methods of operation and practice.

   
   

3. During June of 1981, the Respondent, doing business as B & P Roofing, contracted to perform a re-roofing job with Mr. Jack Mewhirter, whereby he was to put a new roof on a residence at 137 Variety Tree Circle, Altamonte Springs, Florida. The construction of the roof was contracted for and completed during June, 1981. The Respondent failed to obtain a building permit before or during construction of the roof and also failed to obtain a final inspection of the roof when it was finished in June, 1981.

   
   

4. The Respondent's testimony establishes that the Respondent was familiar with the building code adopted in Seminole County and familiar with the requirement that he was responsible as the contractor, to obtain a permit before commencing construction of the roof and that he was also responsible for obtaining a final inspection by the Seminole County Building Official. In response to a complaint from Mr. Mewhirter, the owner of the residence, the Seminole County Building Officials, Mr. Flippent and Mr. Del'Attibeaudierer became aware that no building permit had been obtained for the re-roofing job and that no final inspection had been obtained pursuant thereto. Accordingly, Mr. Del'Attibeaudierer inspected the roof in November, 1981, and Mr. Flippent informed the Respondent of the necessity to obtain a building permit and a final inspection. Thus, on November 10, 1981, the Respondent obtained the building permit and called for the final inspection. Mr. Del'Attibeaudierer was unable to sign the final inspection document as "satisfactory" because he was unable to adequately inspect the roof once it was finished. He had been unable to inspect the method by which it was installed during its construction due to the Respondent failing to inform him or his superiors that the roof was under construction and that inspections were needed at that time.

   
   

5. hen the Respondent entered into the contract with Mr. Mewhirter, he informed Mr. Mewhirter that he would not obtain a building permit because that

   would "drive the cost up." The Respondent, in his testimony, denied that he made such a statement, but Mr. Mewhirter's testimony is here found more credible because of the facts established by Mr. Del'Attibeaudierer's testimony that a random check of the roof after he finally was able to inspect it in November, 1981, revealed that all the shingles he examined were nailed with only three nails and were nailed too high up near the upper edge of the shingle, which is a substandard method of installing the roof and which permits storm winds or rain to raise the shingles, causing possible damage to the roof. The fact that the roof was installed in this fashion and that fact that the Respondent admittedly knew of the requirements of the building code and the requirement that a permit be obtained and inspections be made during the course of and at the conclusion of the job, indicated that the Respondent was knowingly trying to avoid the necessity of obtaining a permit and a final inspection and thus lends sufficient credibility to Mr. Mewhirter's testimony regarding the reason the Respondent obtained no permit. In any event, the roof was shown to not be constructed in accordance with the building code.

   
   

6. In summary, it was established that the Respondent knew of the appropriate building code, was thoroughly familiar with it and and indeed had installed an excess of seven hundred roofs since he entered the business. He was aware, in connection with the need for obtaining a building permit, that he should also obtain inspections during the construction and a final inspection when the roof was finished, which he failed to do until reminded of his violation by the building department five months after the roof was completed, at which time it was too late to perform the appropriate inspections. Thus, the roof could not be approved by the building department of Seminole County. The Respondent admitted to only being present on the subject job site for approximately an hour and a half during the entire construction of the roof and he admittedly did not bother to look to see if a permit was on the job site at that time, or any other time. Finally, although the Respondent remonstrated that his failure to get a building permit at the appropriate time was inadvertent and due to his assumption that other office personnel had taken care of the obtaining of the permit, that testimony is not found to be credible since it was established, through the testimony of Mr.. Mewhirter, that the Respondent consciously decided not to obtain a permit prior to starting construction of the roof.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes and Chapter 489, Florida Statutes (1981).

   
   

8. The Construction Industry Licensing Board is charged with carrying out the provisions of Chapter 489, Florida Statutes. Part I of this act sets the standards for licensure in the field of construction contracting and provides for disciplinary proceedings when the prescribed standards are violated. Pursuant to Section 489.129(1)(d), Florida Statutes (1981), the board is authorized to revoke or suspend the certificate or registration of a contractor, or to impose an administrative fine not exceeding $1,000 if a contractor is found guilty of deliberately disregarding and violating an applicable building code. Section 489.129(1)(d), Florida Statutes (1981), states, with regard to the reasons for imposing the above-mentioned disciplinary actions, in pertinent part as follows:

   
   

   Willful or deliberate disregard and violation of the applicable building codes or laws of the

   state or of any municipalities or counties thereof.

   
   

9. It is undisputed that the Respondent entered into a contract to perform a re-roofing job for Mr. Mewhirter for a residence which he ultimately re-roofed at the above-referenced address. Although construction of the roof was arranged for and completed during June of 1981, the Respondent failed to obtain his building permit until reminded of that necessity on November 10, 1981, by the Seminole County Building Department.

   
   

10. The applicable building code, the Southern Standard Building Code, adopted by Seminole County, requires that a permit be obtained before construction is commenced and that a final inspection be requested at the completion of the construction before a Certificate of Occupancy can be obtained. Since this permit was not obtained nor a final inspection requested nor performed until nearly five months after completion of the construction, it is clear that the Respondent did not comply with applicable building code for purposes of the above statutory authority.

    
    

11. A violation of Section 489.129(1)(d), Florida Statutes (1981), requires deliberateness or intent on the part of the Respondent. Although the Respondent remonstrated that his failure to obtain the permit and inspection was an inadvertent mistake in the administration of his office with regard to the subject job, an analysis of the evidence adduced in this cause by the Petitioner establishes, beyond doubt, that the Respondent made a conscious choice not to obtain a building permit in order to hold costs down. His conscious intent not to obtain a permit and to thus circumvent the requirement5 of the building code and, derivatively, of Section 489.129 (1)(d) , Florida Statutes (1981), is clearly demonstrated by the fact that indeed the roof was put on in an substandard fashion and that when inspection was finally obtained five months late, after the building permit was obtained in a similarly tardy fashion, the inspector could not sign his approval for the job with regard to a Certificate of Occupancy because it was impossible for him to have inspected the job at the required stages of construction. He simply did not know the job had commenced because no building permit had ever been obtained and no inspection called for during construction. The intent to violate the statute and the building code is further demonstrated by the fact that the Respondent, who is an experienced roofing contractor, admittedly knew and understood the requirements of the building code and the requirement to obtain a permit and the required inspections and simply failed to do so all the way through the completion of construction. He visited the job site and was under a duty to determine whether a permit had been obtained and properly displayed pursuant to the code and failed to do so. All such evidence adequately corroborates Mr. Mewhirter's testimony that the Respondent told him he would not obtain a permit so as to hold costs down.

    
    

12. Finally, although no charge regarding the substandard nature of the finished roof is contained in the Administrative Complaint, the evidence regarding the improper installation of the roof was unrefuted and does serve to corroborate other evidence which establishes the Respondent's deliberateness in his circumvention and violation of the building code and Section 489. 129(1)(d)

, Florida Statutes (1981). It must therefore be concluded that the Petitioner has met its burden of proof in establishing that-the Respondent violated the above-cited authority with regard to both Counts I and II of the Administrative Complaint.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the Respondent, George G. Vincent, be found guilty of the charges contained in Counts I and II of the Administrative Complaint and that an administrative fine of $1,000 be imposed.

DONE and ENTERED this 23rd day of February, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1983.

COPIES FURNISHED:

John O. Williams, Esquire

547 North Monroe Street Suite 204

Tallahassee, Florida 32301

Gary Siegel, Esquire

292 U.S. Highway 17-92

P.O. Drawer 965

Fern Park, Florida 32730

James A. Linnan, Executive Director Construction Industry Licensing Board

P.O. Box 2

Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

v. DPR Case No. 0017669

DOAH Case No. 82-1341

GEORGE C. VINCENT

B & P Roofing RC 0034898

244 Tollgate Trail Longwood, Florida 32750,

Respondent.

/

FINAL ORDER

This case came for final action by the Construction Industry Licensing Board on April 8, 1983, in Tampa, Florida. An administrative hearing held pursuant to Section 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board, Upon consideration, it is ORDERED:

1. The findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. The conclusions of law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. The recommendation in the Recommended Order is rejected as inappropriate under the circumstances,

THEREFORE

It is ORDERED and ADJUDGED that the Respondent be and is hereby officially reprimanded for his actions.

DONE AND ORDERED this 22nd day of April, 1983.

FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

HENRY BACHARA, Chairman

FILED

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD

BOARD CLERK

CLERK BURT GERMAN

DATE 4/22/83

Docket for Case No: 82-001341

Orders for Case No: 82-001341