STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION (CONSTRUCTION )

INDUSTRY LICENSING BOARD), )

)

Petitioner, )

)

vs. ) CASE NO. 87-3351

)

CLAUDE E. MERRITT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted in this case on September 24, 1987, at Jacksonville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: G. Vincent Soto, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

FOR RESPONDENT: William T. Lassiter, Esquire

720 North Ocean Street Jacksonville, Florida 32202

ISSUES AND INTRODUCTION

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Section 489.129(1)(d) and (m), Florida Statutes.

At the hearing in this case, the Petitioner presented the testimony of two witnesses and offered three exhibits, all of which were received in evidence.

The Respondent testified on his own behalf, presented the testimony of one other witness, and offered three exhibits, all of which were received in evidence. At the conclusion of the hearing the parties were granted twenty days from the date of the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on October 12, 1987, which made the proposed recommended orders due on November 2, 1987. On November 2, 1987, the Petitioner filed a proposed recommended order. On November 3, 1987, the attorney for the Respondent advised the Hearing Officer by telephone that his proposed recommended order would be late, but that it would be filed within the next day or two. As of the date of this recommended order, the Respondent has not filed a proposed recommended order or any other posthearing document. My specific rulings on the findings of fact proposed by the Petitioner are contained in the Appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

Findings based on admissions

1. Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes.

   
   

2. At all times relevant hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered general contractor.

   
   

3. At all times relevant hereto, Respondent had been issued by said Board, and held, license number RG-S013131.

   
   

4. Respondent's address of record is in Jacksonville, Florida.

   
   

5. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Marcel R. Poirier, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer.

6. The details of the contracted work were generally as follows: Contract entered into on or about: 1-86

   Contracted price: $10,655

   Job located in: Jacksonville, Florida

   Job generally consisted of: remodeling a house

   
   

7. Respondent's said contracting business thereafter began said job.

   
   

8. In prior case number 74096, the probable cause panel of the State Construction Board, found that there was probable cause to believe that Respondent had committed a disciplinary violation of Chapter 489, and Respondent was sent a letter of guidance on or about 12-12-87 (sic).

   
   

   Findings based on the evidence adduced at the hearing

   
   

9. The Building Code of the City of Jacksonville contains the following relevant provisions:

   
   

   320.502 Inspection Request. It shall be

   the responsibility of the holder of a permit to make a request to the Building and Zoning

   Inspection Division for the mandatory inspections required by s. 320.504. . . .

   
   

   320.504 Mandatory inspections. No work shall be done on any part of a building or

   structure or a plumbing, electrical or mechanical installation beyond the point indicated

   in this section for each successive inspection until the inspection has been made

   and the work included therein has been approved by the Building Official. It shall

   be unlawful to lath, seal or otherwise conceal or cover work for which an inspection is required until it has been inspected and approved by the Building Official.

   1. With respect to construction inspections:

      
      

      (4) frame inspection shall be made at

      each floor level and after all framing, fire blocking, furring and bracing are in place and plumbing and electrical work are roughed in.

      
      

   2. With respect to electrical inspections:

      1. rough inspection shall be made

         after all rough electrical construction which will be concealed by other construction has been completed and all plumbing, piping and other systems are installed. . . .

      2. final inspection shall be made

   after all electrical construction has been completed. . . .

   
   

10. Section 320.504 of the Building Code of the City of Jacksonville contains requirements for mandatory "final" inspections of the electrical, plumbing, and mechanical aspects of a construction project, but it does not provide for a mandatory "final" inspection of the structural construction following the several mandatory inspections at progressive stages of the structural construction.

    
    

11. Respondent's contract with the Customer was to build a shelled-in addition to the Customer's residence. Respondent's contract did not include any electrical or plumbing work and did not include covering the interior side of the framing. When Respondent finished all of his work under the contract the framing was still open and visible for inspection and the rough electrical construction had not been started. After Respondent finished all of his work under the contract, the Customer planned to do the electrical construction and to then close in the interior walls. Pursuant to Section 320.504(a)(4) of the Building Code of the City of Jacksonville, the electrical work should be roughed in before calling for the frame inspection. The Respondent did not think he was required to request a frame inspection because when he finished all of the work under his contract, the structure was not ready for a frame inspection inasmuch as the electrical work (a responsibility of the Customer) had not been roughed in.

    
    

12. Neither the Respondent not anyone on his behalf requested a frame inspection. Respondent completed all work on the subject contract and received his final payment on April 15, 1986. Shortly before that date, the Customer had called a building inspector for a consultation regarding the construction project and, as a result of that consultation, the building inspector suggested that a portion of the roof construction be modified. The Customer communicated this suggestion to the Respondent and the suggested modification was made. The Respondent's foreman believed, albeit erroneously, that the consultation which resulted in the suggestion that a portion of the roof construction be modified was the frame inspection. The foreman's erroneous belief was based in part on the fact that at the time of the consultation, all of the framing was finished and all of the framing was still open and available for inspection.

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

14. In a case of this nature, where the Respondent's license is placed in jeopardy by the Administrative Complaint, the evidence must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. Respondent has been charged with a violation of Section 489.129(1)(d), Florida Statutes, which authorizes the Board to impose a disciplinary penalty when a contractor is guilty of "[willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof." With regard to this charge, it must first be noted that, as applied to the facts in this case, the Building Code of the City of Jacksonville is, at best, ambiguous as to whether it was the responsibility of the Respondent or the responsibility of the Customer to obtain a frame inspection. Although the Building Code provides that it is the responsibility of the "holder of a permit" (in this case the Respondent) to request mandatory inspections, the mandatory frame inspection would have been premature if it had been conducted at the conclusion of the work performed under the Respondent's contract, but before the Customer thereafter completed the rough electrical work. In the face of the ambiguity in the Building Code and in view of the absence of any evidence that the Respondent's failure to request a framing inspection was willful or deliberate, it must be concluded that the evidence is insufficient to establish a violation of Section 489.129(1)(d), Florida Statutes. Accordingly, the charge that the Respondent has violated Section 489.129(1)(d), Florida Statutes, should be dismissed.

    
    

16. The Respondent is also charged with a violation of Section 489.129(1)(m), Florida Statutes, which authorizes the Board to impose a disciplinary penalty "[u]pon proof that the licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." The theory of this charge is that the Respondent failed to competently supervise the activities of his contracting business by failing to assure that required inspections were obtained. As noted above, it is not clear that the Respondent was required to request a frame inspection. Further, there is no direct evidence about the nature of the Respondent's supervisory activities, nor is there any expert testimony as to the proper standard of supervision. Therefore, it must be concluded that the evidence is insufficient to establish a violation of Section 489.129(1)(m), Florida Statutes. Accordingly, the charge that the Respondent violated Section 489.129(1)(m), Florida Statutes, should be dismissed.

RECOMMENDATION

Based on all of the foregoing, I recommend the entry of a Final Order dismissing all charges against the Respondent.

DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida.

Michael M. Parrish, 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 30th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on each of the findings of fact proposed by the parties.

Findings proposed by Petitioner:

Paragraphs 1, 2, 3, 4, 5, and 6: Accepted.

Paragraphs 7 and 8: Accepted in substance, but with additional findings in the interest of clarity and accuracy.

Findings proposed by Respondent: (None)

COPIES FURNISHED:

G. VINCENT SOTO, ESQUIRE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

WILLIAM T. LASSITER, ESQUIRE 720 NORTH OCEAN STREET JACKSONVILLE, FLORIDA 32202

MR. TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

MR. FRED SEELY, EXECUTIVE DIRECTOR CONSTRUCTION INDUSTRY LICENSING BOARD POST OFFICE BOX 2

JACKSONVILLE, FLORIDA 32201

Docket for Case No: 87-003351

Orders for Case No: 87-003351