PROFESSIONAL REGULATION, ) BUILDING CODE ADMINISTRATORS AND ) INSPECTORS BOARD, )
vs. ) Case No. 97-4733
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on August 3-5, 1998, in Miami, Florida.
For Respondent: Gary B. Goldman, Esquire
Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180
The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
On September 9, 1997, Petitioner issued an Administrative Complaint against Respondent, alleging that he had violated certain statutes regulating his conduct as a building code administrator, and Respondent timely requested a hearing on the allegations contained therein. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.
Petitioner presented the testimony of Jesus Baez; Lawrence Gay, Jr.; Jaime Eisen; Francisco Quintana; Guillermo Olmedillo; Charles Danger; Carlos Bonzon, and Jaime A Mitrani. The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-6 and 8-16 and Respondent's Exhibits numbered 1, 2, 4, and 5 were admitted in evidence.
Both parties filed post-hearing proposed recommended orders.
Those documents have been considered in the entry of this Recommended Order.
On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to
Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit.
While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code.
Construction work began on Phase I, the foundation for Terminals 8 and 9.
By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time."
By letter dated June 29, 1995, Port Director Lunetta
again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time."
There is no such permit as a conditional permit under the South Florida Building Code.
In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project.
As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project.
On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only."
Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits.
All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only.
At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official.
On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control
Division Chief.
In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative.
Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans.
Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete.
Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued.
Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review
to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule.
He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code.
On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed.
In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety.
On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9.
There was never any danger to the public as a result of the construction of Terminals 8 and 9.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.
The Administrative Complaint filed in this cause contains eleven counts. The factual allegations cover a time period from June 1995 through November 1995 and allege that Respondent was the Building Code Administrator for Metropolitan Dade County during that time period. Those factual allegations are not correct.
The letter certifying Respondent as the building official is dated January 10, 1996, and specifies that approval of the Certification Subcommittee would be considered at a January 30, 1996, meeting. Based upon that evidence, January 30 would be the earliest date Respondent could occupy that role. However, the parties stipulated both that Respondent became the building official on January 10 and that he became the building official "by January 18." Moreover, Respondent testified that he considered himself the building official as of January 10.
Since the Administrative Complaint seeks to discipline Respondent for alleged statutory violations while he was the building official for Metropolitan Dade County, and since the
allegations predate his appointment, the Administrative Complaint should be dismissed on that basis alone.
To the extent that some of the allegations may have extended into Respondent's tenure as building official, each count of the Administrative Complaint merits some discussion. Count I alleges that Respondent violated Section 468.621(1)(g), Florida Statutes, by allowing construction of Terminals 8 and 9 to continue in the absence of approved plans, thereby committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property by failure to properly enforce applicable codes. Count II alleges a violation of the same statute by allowing construction to continue to exceed the restrictions on the foundation permit.
It must be remembered that Respondent inherited the situation created by his predecessor. Prior to Respondent assuming the position of building official, the decision to stop construction or allow construction was not his. That authority rested with Bonzon who authorized the construction and who also re-assigned some of Respondent's duties to Bonzon's special assistant. Respondent cannot be disciplined for events over which he had no authority or responsibility.
As of January 10, 1996, when Respondent assumed the duties of the County's Building Official, the construction was substantially completed. Respondent was not obligated under the
provisions of the South Florida Building Code to stop work at Terminal 8 and 9 upon assuming the office of Building Official. Section 201.1(d) of the South Florida Building Code authorizes the building official to allow work, which is being performed contrary to the provisions of the Code, to proceed upon arrangements satisfactory to the building official. Stop work orders, under that Section of the Code, are discretionary with the building official.
It is undisputed that construction without approved plans is a Code violation, as is construction which exceeds permit restrictions. What action to take as a result of those violations, however, was discretionary. Respondent's decision to
allow the remaining construction to proceed while taking action to expedite the plans processing was reasonable in view of the circumstances.
Accordingly, Respondent cannot be found guilty of willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property by failure to properly enforce applicable codes where he was vested legally with the authority to make the discretionary decision he made. Lastly, not one iota of evidence was offered that the construction at Terminals 8 and 9 constituted a significant danger to life or property. The evidence is uncontroverted that the buildings are safe. Counts I and II of the Administrative Complaint must be dismissed.
Count III alleges that Respondent violated Section 468.621(1)(c)2, Florida Statutes, by knowingly assisting any person practicing contrary to the provisions of the building code in that he permitted the primary contractor on the project to continue construction which exceeded the permit restriction. Petitioner has failed to prove the allegations of this Count for the same reasons as those pertaining to Counts I and II. Respondent had discretion to allow the work to continue.
Counts IV through X allege that Respondent violated Section 468.621(1)(c)2, Florida Statutes, by knowingly assisting any person practicing contrary to the provisions of the building code in that he directed inspections of various subcontractors'
work in the absence of approved plans and a required permit. Respondent admits that on January 20, 1996, he directed certain mandatory inspections to be made. No evidence was offered that Respondent ordered any other inspections to be made, and Respondent has denied ordering any inspection other than on January 20.
Since Respondent had already exercised his discretion to allow construction to continue, Respondent would have violated his responsibilities as the County's Building Official had he not insured that inspections required by the Code in fact took place. Further, since the continuation of work was authorized, there is no evidence that any of the subcontractors named in Counts IV through X was working in violation of the South Florida Building Code, and Respondent cannot be found guilty of assisting them to violate the Code. Counts IV through X must also be dismissed.
Count XI alleges that Respondent violated Section 468.621(1)(g), Florida Statutes, by committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property by failure to properly enforce applicable building codes in that Respondent caused the stairs to be improperly designed and constructed. The evidence is uncontroverted that prefabricated stairs were constructed and installed in the project, that the County's reviewer questioned the adequacy of the design to carry the anticipated load of
passengers, that the stairs were corrected to meet the reviewer's concern before the certificate of occupancy was issued, and that the stairs were sufficient for use during construction.
There is no evidence that Respondent designed or constructed the stairs. There is no evidence that Respondent knew in advance that the stairs would be questioned by the reviewing engineer. There is no evidence that the stairs were installed during Respondent's tenure as the County's Building Official. There is no evidence that the stairs ever constituted a significant danger to life or property. There is no evidence that the stairs failed to meet the requirements of the South Florida Building Code. Count XI must be dismissed.
After the final hearing in this cause, Petitioner filed a print-out of costs. Since Petitioner failed to prove by clear and convincing evidence any of the charges in this Administrative Complaint, Petitioner is not entitled to reimbursement of its costs. Further, the amount of costs to which Petitioner might have been entitled had Petitioner prevailed is an evidentiary issue. Petitioner did not request permission to submit evidence after the hearing was concluded, and its print-out, therefore, is stricken sua sponte.
RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.
DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998.
Gary B. Goldman, Esquire
Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180
Lynda L. Goodgame, General Counsel Department of Business and
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
