STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 87-4505

)

ROBERT D. HUEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 22, 1988, before Jose A. Diez-Arguelles, a hearing officer from the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: David L. Swanson, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

FOR RESPONDENT: Robert D. Huey, pro se

3710 Southeast 12th Place Ocala, Florida 32670

BACKGROUND

This proceeding began on July 17, 1987, when Petitioner, Department of Professional Regulation, Construction Industry Licensing Board, issued an Administrative Complaint charging Respondent, Robert D. Huey, with certain violations of the Florida Statutes. By his Election of Rights, Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing. By letter dated October 9, 1987, Petitioner requested that the Division of Administrative Hearings conduct the final hearing.

The hearing was initially scheduled to take place on March 23, 1988.

However, at the beginning of the hearing, it became apparent that, due to what appeared to be a clerical oversight, Respondent had not been made aware of all the charges against him. The Administrative Complaint mailed to Respondent, a copy of which was filed with the Division of Administrative Hearings, was missing a page. An oral motion for continuance was granted in order to allow Petitioner to fully advise Respondent of the charges against him. The final hearing was subsequently rescheduled for July 22, 1988.

At the hearing, Petitioner presented the testimony of Mr. Glen Reames, Mr. Wes Clyatt, Mr. John Wilson and Mr. Walter Norton, and introduced nine exhibits, numbered Petitioner's 1-4 and 6-10, into evidence. Respondent testified on his own behalf and introduced one composite exhibit, numbered Respondent's 2, into evidence.

Both parties filed post-hearing statements containing proposed findings of fact. The proposed findings of fact are addressed in the Appendix attached to this Recommended Order.

One of Respondent's exhibits which was rejected at the hearing was a Construction Agreement supposedly entered into between Glen and Lynn Ann Reames and Huey Construction. However, no one present at the hearing could attest to the authenticity the contract. Mr. Reames denied signing the contract and neither the person who witnessed the contract nor the person whose signature appears on the contract on behalf of Huey Construction were present at the hearing. Therefore, the exhibit was not received into evidence. Attached to the letter which constitutes Respondent's post-hearing statement are a copy of the contract and two notarized letters purporting to assert the validity of the contract. Since both the letters and the contract are hearsay and were not properly introduced at the hearing, I have not considered them in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant Respondent was licensed as a registered residential contractor in Florida and held license number RR0046781.

   
   

2. Sometime in late April, 1985, Respondent entered into a contract with Mr. Reames. The contract called for Respondent to build a house at 1512 S.E. 24th Avenue, Ocala, Florida.

   
   

3. Mr. Reames moved into the house on December 23, 1985, after a certificate of occupancy was issued, even though the house was not fully completed.

   
   

4. Mr. Reames completed a "punch list," consisting of an undetermined number of items which needed to be completed, and asked Respondent to complete the items. Most items in the punch list were never completed by Mr. Huey.

   
   

5. After the initial attempt by Mr. Reames to get Huey Construction Co. to complete the items in the punch list, Mr. Reames did not contact Huey Construction Co. about the other problems found subsequently.

   
   

6. In March or April, 1986, Mr. Reames noticed that the wood floor was buckling and separating. He contacted Mr. Gassett, the person who had installed the floors, who determined that a water leak was causing the problem.

   
   

7. In November, 1986, Mr. Reames hired Mr. Clyatt, a licensed general contractor, to inspect the house, to go over the punch list items which needed to be completed, and to correct other items which were discovered to be inadequate.

8. In the first week of January, 1987, Mr. Norton, the chief building inspector for the City of Ocala, was asked by Mr. Reames to inspect the house. Mr. Norton found a number of problems and identified some violations of the City of Ocala Building Code (Code) which was in effect at the time the house was built.

   
   

9. The inadequacies, problems and code violations found by Mr. Clyatt and Mr. Norton are set forth below.

   
   

   Ventilation

   
   

10. The Code requires 1 sq. ft. of opening for each 150 sq. ft. of crawlspace, in order to provide ventilation. Since the house had 2720 sq. ft. of crawlspace, it needed 18 sq. ft. of openings. The house, however, had only 6 openings of 1 sq. ft. each, or 6 sq. ft. of openings. Additionally, the plans for the house indicated where the openings were to be located and the completed house did not meet the plan specifications in this area. Mr. Clyatt added 15 openings, 8 in. by 12 in. each.

    
    

11. In addition to the inadequate openings, one area of the crawlspace was completely enclosed, with no ventilation.

    
    

12. The Code requires that attic ventilation for this type of house be 1 sq. ft. of opening for each 300 sq. ft. of space. The plans called for 3 in. by

    12 in. vents at 24 in. intervals. The openings in the house were approximately

    2 in. in diameter and were placed sporadically. From a visual inspection, without taking actual measurements, the openings for attic ventilation were inadequate and did not provide the ventilation required by the Code.

    
    

    Roof

    
    

13. The roof of the house contained exposed nails and staples on the shingles, including some which had rusted. Nails and staples should not be exposed on a shingle roof, since they can lead to leaks. The roof leaked in one area in the back of the house.

    
    

14. Mr. Reames contacted H & B Roofing, the subcontractor who had installed the roof, who corrected the problems with the roof.

    
    

    Driveway

    
    

15. The Code requires that a driveway permit be obtained prior to the installation of a driveway. Also, the Code requires an inspection of the driveway prior to the concrete being poured. Respondent obtained the required permit, but failed to call for the required inspection prior to pouring the concrete. By letter dated December 10, 1985, Respondent notified the Building Inspection Office of the City of Ocala that the driveway was poured according to the Code.

    
    

16. By the time of the inspections by Mr. Norton and Mr. Clyatt, several cracks were present in the driveway.

    
    

    SubFloor

    
    

17. Due to the water damage set forth in paragraph 5, supra, the wood floor was removed in late December, 1986 or early January, 1987. The plans originally called for the subfloor to be constructed of one-half inch plywood

    decking, particle board, and 15 lb. felt paper. However, the Code requires subfloors to be constructed using three-quarter inch plywood, and the plans contained a penciled in notation where the one-half inch was changed to eleven- sixteenths. The subfloor had been constructed using one-half inch CDX plywood decking with particle board on top. No felt paper had been used.

    
    

18. Additionally, the subfloor had been nailed in violation of the Code. The Code requires nails to be spaced two and one-half inches on the perimeter of the plywood and four inches in the interior area of the plywood. The subfloor of the house contained boards which had only been nailed on the perimeter and boards which had a large number nails in one area, far in excess of the amount required by the Code.

    
    

    Girders

    
    

19. When Mr. Clyatt inspected the house he discovered that approximately 6 of the wood girders supporting the floor appeared to have been cut short and, instead of bearing on the stem wall bearing plate, were supported by posts made of two-by-four and two-by-six non-pressure treated lumber. The posts were resting on soil and the bottom part of the posts had decayed. This construction is a violation of the Code which requires that pressure treated wood be used, and is a violation of construction standards which require that the girders rest on the bearing plate or on concrete. See Petitioner's Exhibit 6.

    
    

20. Also, the girders supporting the wood floor were not resting directly on the block piers. Wood shims had been added to fill the space between the girders and the block piers. The wood shims were not pressure treated. The Code requires that pressure treated wood be used in this situation. Additionally, proper construction requires that the girders rest directly on the block piers.

    
    

    Foundation Wall

    
    

21. A foundation wall was not bearing on the footing properly. The foundation wall was constructed of 8-inch block and portions of the wall had only one to two inches bearing on the footing; the rest of the wall was resting on the soil. This is a violation of the Code. This problem was corrected by Mr. Clyatt by removing the soil on which the wall rested and pouring concrete under the wall. See Petitioner's Exhibit 7.

    
    

    Cabinets

    
    

22. The cabinets in or near the utility room area of the house were loose and separating from the soffit and the wall.

    
    

    ISSUE

    
    

    Whether Respondent violated Sections 489(1)(d),(j) and (m), Florida Statutes?

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sections 120.57 and 120.60, Florida statutes.

24. Section 489.129, Florida Statutes, provides that Petitioner may revoke or suspend the registration of a contractor and impose an administrative fine not to exceed $5,000, or reprimand or censure the contractor if the contractor is found guilty of committing any of the acts enumerated in the section.

    
    

25. In this case, the Administrative Complaint charges Respondent with violating the following paragraphs of Section 489.129(1), Florida Statutes:

    
    

    (d) Willful or deliberate disregard

    and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

    (j) Failure in any material respect

    to comply with the provisions of this act.

    
    

    (m) Upon proof that the licensee is guilty of fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting.

    
    

26. Respondent is charged with violating paragraph (d), supra, because he failed to obtain a timely driveway inspection.

    
    

27. Respondent is charged with violating paragraph (j), supra, because he failed to discharge his supervisory duty as a qualifying agent, in violation of Sections 489.119 and 489.105(4), Florida Statutes. Additionally, the charge that Respondent violated paragraph (m), supra, is based on the charge that Respondent failed to properly supervise the construction of the home, leading to certain deficiencies in the construction of the home.

    
    

28. This proceeding is penal in nature and may lead to the revocation or suspension of Respondent's license. Therefore, Petitioner has the burden of proving the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), the court held that:

    
    

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

29. Applying this requirement to the evidence in this case shows that Petitioner has established by clear and convincing evidence some, but not all, of the allegations set forth in the Administrative Complaint.

30. The evidence shows that Petitioner failed to obtain the required inspection prior to pouring the concrete driveway. Therefore, Respondent violated the provisions of Section 489.129(1)(d) , Florida Statutes.

    
    

31. As to the other problems and deficiencies alleged in the complaint, these were discovered approximately one year after a certificate of occupancy was issued for the house and Mr. Reames had moved in. The evidence in this case establishes that the problems set forth in Findings of Fact 10-15, 17, 18 and 21 were Respondent's responsibility. These infractions are of such a nature that they could only have been committed at the time the house was being built.

    
    

32. As to the problems set forth in Findings of Fact 16, 19, 20 and 22, the evidence presented in this case is insufficient to establish that these problems were caused by, or were the responsibility of, Respondent. While the evidence establishes that the problems existed at the time of the inspections conducted by Mr. Norton and Mr. Clyatt, there was no competent evidence presented to establish that these problems existed at the time Respondent finished work on the house.

    
    

33. Respondent's actions leading to the deficiencies set forth in Findings of Fact 10-15, 17, 18 and 21 constitute violations of Section 489.129(1)(j) and

1. , Florida Statutes, in that Respondent failed to properly supervise the construction of the house. In this regard it should be noted that both expert witnesses presented by Petitioner refused to characterize the actions of Respondent (assuming he was guilty of all the allegations) as "gross negligence," and both characterized the actions as simply the failure to properly supervise.

   
   

   Proposed Penalty

   
   

   Chapter 21E-17, Florida Administrative Code, sets forth guidelines for the imposition of penalties by Respondent. Applying these guidelines, the following penalties should be imposed on Respondent.

   
   

   1. For failing to call for inspection, a reprimand. See Rules 21E- 17.001(8) and 21E-17.004, Florida Administrative Code.

      
      

   2. For failure to properly supervise the construction of the house,

$1500.00 fine. See Rules 21E-17.001(19)(b) and 21E-17.002, Florida Administrative Code. This is the maximum amount provided for this violation where monetary harm has been caused to the customer. In recommending this penalty, I have considered the aggravating and mitigating circumstances present in this case. While the evidence establishes that Mr. Reames paid Mr. Clyatt

$30,000 for work on the house, the evidence fails to establish how much of the harm is due to Respondent's actions. Also, the evidence establishes that Respondent violated the local building code. On the other hand, Respondent has the reputation of being a good builder with the local building inspectors, contracting is his livelihood, and this is his first offense.

RECOMMENDATION

Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent and imposing a fine of $1500.00.

DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 31st day of October, 1988.

APPENDIX Case Number 88-5570

The parties submitted proposed findings of fact which are addressed below.

Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact

Proposed Finding

of Fact Number Ruling and RO Paragraph

1. Accepted. RO1.

2. Accepted. RO2.

3. Accepted. RO3,4.

4. First sentence, Accepted RO7. Second sentence accepted for proposition that Mr. Reames paid Mr. Clyatt $30,000 for work done on the house. However, the evidence fails to establish what portion of this amount was paid for problems caused by Respondent.

5-10. Accepted generally as to what Mr.

Clyatt observed. RO19,20. But see discussion in Conclusions of Law portion of this RO.

1. Accepted. RO13.

2. Accepted generally. RO14. Respondent was not asked to repair the shingles when this deficiency was discovered about one year after Respondent had ended work on the house.

3. First sentence rejected. Second sentence, accepted R016, but no competent substantial evidence was presented to show what caused the cracks.

4. Accepted generally as to what was observed. RO22. But see discussion in Conclusions of Law

   portion of RO.

5. Accepted. RO18.

6. Accepted. RO18.

7. Accepted. RO21.

8. Accepted. RO21.

9. Accepted. RO10,11.

10. Accepted. RO10,11.

11. Accepted. RO17.

12. Accepted. RO12.

13. Accepted. RO12.

14. Accepted. RO15.

15. Accepted. RO15.

16. Accepted. RO8.

Respondent's Proposed Findings of Fact

Respondent's post-hearing statement consists of a two page letter with attachments. The attachments have been addressed in the Background section of this Recommended Order. The proposed findings of fact contained in the letter are addressed below. References are to paragraphs and sentences within each paragraph.

Proposed Finding

of Fact Number Ruling and RO Paragraph

Par. 2 RO2 establishes that a contract existed; no finding is made as to whether the contract was oral or written, or as to what the contract amount was.

Par. 3 First sentence is not supported by the evidence. Second sentence, accepted. Third-Fifth sentences rejected as not supported by competent evidence; however, no finding is made as to who is at fault for this problem. See Conclusions of Law. Fifth sentence is not a finding of fact.

Par. 4 Not a finding of fact.

Par. 5 (References are to statements after each number in the paragraph)

#8 is accepted generally. RO15. #9 rejected as not supported by competent evidence. #10 rejected as not supported by competent evidence; some of the allegations were proven to exist as set forth in this RO. #11 and 12 are not findings of fact.

COPIES FURNISHED:

David L. Swanson, Esquire Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert D. Huey

3710 Southeast 12th Place Ocala, Florida 32670

Fred Seely Executive Director

Construction Industry Licensing Board Post Office Box 2

Jacksonville, Florida 32201

Lawrence A. Gonzalez, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004505

Orders for Case No: 87-004505