STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1629

)

WILLIAM G. STOCK, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on September 29, 1983, in Sebring, Florida.

APPEARANCES

For Petitioner: Douglas A. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: William G. Stock, pro se

Post Office Box 1167

Lake Placid, Florida 33852 ISSUES AND BACKGROUND

This case concerns the issue of whether Respondent's license as a registered general contractor should be suspended, revoked, or otherwise disciplined for intentional violations of a local building code and for doing business in a name other than that in which Respondent is registered with the State of Florida.

At the formal hearing, the Petitioner called as witnesses, William G. Stock, the Respondent; Ted Kaipainen; Henry F. Eures; Kenneth Long; and Everett Ohrt. The Petitioner offered and had admitted into evidence nine exhibits. The Respondent called as witnesses, Edward Boyd, Pat Bentz, James Smith, Lou Palcer, and Clarence E. McGrill. The Respondent offered and had admitted into evidence ten exhibits.

Counsel for the Petitioner and the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. At all times material to this cause, the Respondent was a registered general contractor holding license No. RG0001277 and doing business as W. G. Stock & Sons, Inc. The Respondent is the president and qualifying agent for W.

   G. Stock & Sons, Inc.

   
   

2. On October 11, 1980, the Respondent entered into a contract with Mr. Olaf Feo. The contract provided for Respondent to build a townhouse on a lot owned by Respondent and to then sell the lot and the townhouse to Mr. Feo. The lot and townhouse are located in the development, Kingswood Manor subdivision, in Highlands County, Florida. The contract was signed "William G. Stock." The proposal for a change in the air conditioning system was submitted to "William

   G. Stock & Sons, Inc."

   
   

3. The contract price for the townhouse and lot was $59,855.00. On October 11, 1980, Mr. Feo paid Respondent a deposit of $8,900.00. The townhouse was completed and occupied by Mr. Feo in April 1981 and on April 14, 1981, the closing on the unit took place with Mr. Feo paying the Respondent the balance of the purchase price. The unit and lot were deeded to Mr. Feo at the April 14, 1981, closing. On April 13, 1981, a list of extras was submitted to Mr. Feo by Respondent on stationary with the letter head "William G. Stock . . . General Contractor."

   
   

4. Prior to completion, but after the roof trusses were in place on the second floor, the drywall subcontractor discovered that a row of blocks had been left out of the first floor and this was going to reduce the ceiling clearance on the first floor and this was going to reduce the ceiling clearance on the first floor below the required code height. The Highlands County Building Code required a minimum ceiling clearance of seven (7) feet. The problem was brought to the attention of the Respondent, who then called a meeting with his drywall, air conditioning and plumbing subcontractors. The duct work for the air conditioning was removed and reworked and the plumbing pipes were moved up. A more expensive but thinner ceiling material was used. Through these efforts, the ceiling was raised to a clearance of 6 feet 10 1/2 inches.

   
   

5. The total square footage of the unit is 2,218 square feet. The portion of the downstairs area, where the ceiling clearance is below the 7 feet as required by the Highlands County Building Code, is approximately a 280 square foot area.

   
   

6. Subsequent to occupancy and the closing, Mr. Feo did not provide a punch list to the general contractor but did complain in writing about cracks in the stucco on the exterior of his unit. After receiving this notice, the Respondent immediately sent his painting subcontractors out to repair the cracks. When the painters arrived at Mr. Feo's unit, Mr. Feo would not allow them to come on his property and threatened to have them arrested for trespassing. He refused to permit the painters to repair the cracks.

   
   

7. On approximately June 17, 1981, Mr. Feo filed a complaint with the Highland County Board of Adjustment regarding certain code violations in his unit. The Building Department investigated the complaint and determined that there were in fact five separate code violations in the unit. These violations were:

   
   

   1. Insufficient fill over foundation in violation of Section 1302.1.

   2. Improper construction of the second story balcony guardrail in violation of Section 1108.1(b).

   3. Insufficient ceiling height over the stairway in violation of Section 1115.7.

   4. Insufficient emergency egress openings on second floor in violation of Section 1104.5.

   5. Insufficient ceiling height downstairs in violation of Section 2001.1.1(a).

      
      

      The Respondent stipulated to the fact that these violations existed and that he was made aware of them.

      
      

8. The Respondent was notified of these code violations and on July 23, 1981, a meeting was held at the Feo townhouse to discuss a possible compromise. Present at this meeting were the Respondent; Mr. Feo; Kenneth Long, Chairman of the Board of Adjustment; Henry Eures, Chief Building Official; and another member of the Board of Adjustment. The proposed compromise was arrived at in a meeting between Mr. Feo and the Board of Adjustment.

   
   

9. The proposed compromise required that the Respondent berm over the area where the foundation was not covered and correct the problem with the upstairs window openings. In lieu of correcting the ceiling height problems in the dining and stairwell area, under the compromise, the Respondent would install a handrail along the entrance and walkway in front of Mr. Feo's townhouse unit. The Respondent, at that time, agreed to the proposed compromise. The members of the Board of Adjustment did not require a specific date by which the corrections were to be made. However, the board did state at the July 23 meeting that they would like for the corrections to be made within 30 days.

   
   

10. As to the specific corrections to be made, Mr. Feo did not approve or agree with the specific repairs to be made in correcting the balcony handrail or the berming of the foundation. At the July 23, 1983, meeting, the Respondent inquired about what guarantee he had that there would be no further complaints if he agreed to the compromise. In response, the Board members stated they would not entertain any further complaints from Mr. Feo if the compromise was accepted.

    
    

11. Subsequent to the July 23, 1983, meeting at Mr. Feo's unit, the Respondent conferred with his attorney and based upon his attorney's advice, informed the board of Adjustment at its October 13, 1981, meeting that he would not agree to the compromise unless all of Mr. Feo's complaints were resolved at one time and he was given a written guarantee or agreement that all complaints or claims by Mr. Feo had been resolved.

    
    

12. At the October 13, 1981 meeting, the Board directed that the matter be turned over to the county attorney for code enforcement action. From October 1981 to August 1982, no action was taken by the county attorney. At its meeting in August 1982, the Board learned that the county attorney had taken no action. The Board at that meeting entered an order requiring the Respondent to correct the code violations within 30 days of receipt of the order. Notice of this order was provided to the Respondent by letter from the building official.

    
    

13. When the Board met on October 19, 1982, the code violations had not been corrected and the Board voted to rescind Respondent's contractor's license in Highlands County. On December 10, 1982, the Board rescinded its order of

    suspension because of lack of notice to Respondent of the action at the October

    19 meeting.

    
    

14. At the time of the formal hearing, only the code violation relating to the size of the upstairs windows was corrected. This correction took place on or about October 19, 1981, when Respondent's employees installed smoke detectors which satisfied the deficiency.

    
    

15. The dispute between Mr. Feo and the Respondent resulted in a civil action which has now been resolved.

    
    

16. The Respondent has had no prior disciplinary actions against his license and enjoys a good reputation in the community as a contractor.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

    
    

18. The Florida Construction Industry Licensing Board is empowered under Florida Statute 489.129 (1981) to suspend, revoke, or otherwise discipline the certificate or registration of a contractor found to have violated the provisions of Chapter 489.

    
    

19. Count I of the Administrative Complaint charges Respondent with "Willful and deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof" in violation of Section 489.129(1)(d), Florida Statutes (1981). Respondent stipulated that as early as June 1981, he was aware of the code violations listed in paragraph 7 above. Prior to completion of Mr. Feo's unit he became aware of the insufficient ceiling height violations. The Respondent failed and refused to correct the violations in the fall of 1981 solely because he desired a written guarantee that there would be no further complaints by Mr. Feo. As a contractor in the State of Florida, Mr. Stock was required to comply with local building codes. Such compliance is not conditioned upon a settlement or release from the purchaser of the home. Mr. Stock was made aware of the violations and failed for over two years to correct the violations. This constitutes a violation of Section 489.129(1)(d), Florida Statutes (1981), as alleged in Count I.

    
    

20. Respondent is also charged with a violation of Section 489.119(3)(b), Florida Statutes (1981), which provides:

The qualifying agent shall inform the department in writing when he proposes to engage in contracting in his own name or in affiliation with another business organization, and he or such new business organization shall supply the same information to the department as required of applicants under this act.

A violation of this section is a basis for disciplinary action under Section 489.129(1)(j), Florida Statutes (1981).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Florida Construction Industry Licensing Board finding the Respondent guilty of Count I and imposing a $400 administrative fine for such violation. It is further recommended that Respondent be found guilty of Count II of the Administrative Complaint and that such count be dismissed.

DONE AND ORDERED this 29th day of March 1984 in Tallahassee, Florida.

MARVIN E. CHAVIS

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 29th day of March 1984.

COPIES FURNISHED:

Douglas A. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. William G. Stock Post Office Box 1167

Lake Placid, Florida 33852

James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001629

Orders for Case No: 83-001629