STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BUILDING CODE ADMINISTRATORS ) AND INSPECTORS BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-4892

)

BOBBY T. CHAMBERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 8, 2000, at Stuart, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dorota Trzeciecka, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Bobby T. Chambers, pro se

3520 Northeast Linda Drive Jensen Beach, Florida 34957

STATEMENT OF THE ISSUES

Whether the Respondent committed the violations alleged in the Administrative Complaint and if so what penalty should be imposed.

PRELIMINARY STATEMENT

On September 7, 1999, the Petitioner, the Department of Business and Professional Regulation (Department), filed an Administrative Complaint against the Respondent, Bobby T. Chambers. The complaint alleged two violations of law based upon a footer/slab inspection performed on a residential structure.

More specifically, the complaint alleged the Respondent had approved the footer when it did not exist and that such error constitutes gross negligence in the practice of building code inspection. Further, the complaint alleged the Respondent had knowingly assisted an unlicensed person to perform work in violation of law.

The Respondent timely challenged the complaint and filed an Election of Rights disputing the allegations and requesting an administrative hearing on the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on November 19, 1999.

At the hearing, the Petitioner presented testimony from Martin A. Joyce, Jr.; Charles Sabin; Robert Holsclaw; James L. Brown; Malcolm McQuaig; and James Owen Power. The Petitioner's Exhibits 1 through 4, 7 through 12, and 14 were admitted into evidence. Official recognition was requested and taken of the provisions of law cited in the record. The Respondent testified in his own behalf and presented photographs marked and received into evidence as Respondent's Exhibit 1.

This case was heard concurrently with Department of Business and Professional Regulation, Building Code Administrators and Inspectors Board v. James L. Brown, DOAH Case No. 98-5629. A separate Recommended Order has been entered in that matter. The record of both cases will be forwarded to the Department together.

The Transcript of the proceeding was filed with the Division of Administrative Hearings on August 30, 2000. The Petitioner was granted leave to late-file a Proposed Recommended Order.

Such proposed order was filed on September 19, 2000. By Order entered October 5, 2000, the Respondent was granted leave until October 13, 2000, to file a response to the Petitioner's Proposed Order. All proposed orders have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors.

2. At all times material to the allegations of this case, the Respondent was a licensed standard building inspector, license number BN 0001750.

3. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector.

4. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida.

5. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to the residence. She retained a contractor to perform the work and returned to her second home in Ohio during the time of the construction.

6. When Ms. Edwards returned to Florida in December of 1996, she was dissatisfied with the quality of the construction work performed on her home. Mr. Joyce, Ms. Edwards' friend, stated that they had expressed a desire for, and had requested, a high quality of work for the addition to Ms. Edwards' home.

7. Upon investigation it was discovered that the permit card located at the construction site had been initialed by an unlicensed building inspector, James L. Brown. This led the homeowner to suspect that the work performed did not meet inspection code standards.

8. Building code inspections are to verify that the work performed by contractors meets certain minimum standards set forth in adopted building code regulations. By implication the highest quality of construction performance would generally exceed code requirements.

9. One inspection item in particular concerned Ms. Edwards' friend, Mr. Joyce. This homeowner believed the new addition did not have a proper footer.

10. All of the inspections listed on the permit card for this project occurred prior to December 17, 1996.

11. The footer/slab inspection was performed on October 4, 1996. The Respondent asserts that at the time he performed the footer/slab inspection, the structures were in place to assure that the poured foundation would meet minimum code requirements.

12. The Respondent does not dispute that Mr. Brown, an unlicensed inspector in training, initialed the permit card and transmitted by radio the inspection results. Mr. Brown was assigned to work with the Respondent during his training period prior to receiving licensure from the state. Mr. Brown ultimately received his provisional license on or about December 17, 1996.

13. The Respondent asserts that a final inspection was not performed on Ms. Edwards' home. Consequently, no final verification was completed to assure the home addition was constructed in accordance with the plans and the forms on the ground for the footer/slab foundation.

14. In this case there is no allegation that the construction plans for the addition for the Edwards' home failed to meet minimum code requirements. Presumably the footer/slab foundation as reflected on the plans would have specified at least a minimum compliance with code mandates.

15. The footer/slab inspection was performed with the forms and reinforcements in place according to the approved plans. The

    Respondent maintains that the forms and reinforcements met minimum code requirements and that if such forms were altered after inspection he would not have known. Typically, once the footer/slab foundation forms and reinforcements are approved by an inspector the contractor calls for the delivery of concrete to be poured into the foundation forms.

16. The date the concrete was poured for the subject footer/slab is unknown. Whether there was a delay between the footer/slab inspection date and the construction date is unknown.

17. In any event when Ms. Edwards and Mr. Joyce returned from Ohio to view the addition the foundation did not appear adequate. Efforts were then pursued to attempt to ascertain whether the footer/slab did meet code.

18. In this case the record is inconclusive as to whether the footer/slab foundation as constructed at Ms. Edwards' addition meets minimum code requirements. The pictures in evidence do not clearly establish the depth of the slab. Some of the photographs suggest that the minimum depth was achieved. A visual inspection performed at the site did not verify the depth nor compare the interior finished grade with the exterior measurements. The final grading of the exterior of the home around the addition was never completed. As a result the photographs may have a distorted view of the foundation and portions should have been back-filled along the edge of the slab.

    In any event, no definitive measurements have been offered into evidence.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

20. The Petitioner bears the burden of proof in this matter to establish by clear and convincing evidence the allegations of the Administrative Complaint. That is, the Petitioner must establish that the Respondent committed gross negligence in the practice of building code inspection as alleged in Count I. Similarly, the Petitioner bears the burden to establish that Respondent knowingly assisted a person to practice contrary to the provisions of law as set forth in Count II of the complaint.

21. As to Count I, Section 468.621(1)(g), Florida Statutes, provides:

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       
       

       * * *

       
       

       (g) Failing to properly enforce applicable building codes by committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property.

       
       

22. In this case the Petitioner has failed to establish by clear and convincing evidence that the Respondent failed to properly enforce the applicable building code. The footer/slab

    foundation that is the subject matter of this count may not meet the minimum code provisions. Whether it does or not has not been conclusively established.

23. Whether the framing and reinforcements met the minimum code requirements on the date they were inspected is also unknown. The Respondent asserted the foundation structures he inspected met the minimum criteria and were in conformance with the approved building plans. He did not supervise the construction of the footer/slab foundation. Indeed the construction work was done after the inspection had been completed. No one has verified whether or not the completed work complied with the approved plans. It cannot be concluded that this Respondent failed to hold the work to code standards when the record did not, by clear and convincing evidence, support the basic facts upon which such allegation is based. That is, that the footer either failed to exist (as alleged) or failed to meet code requirements.

24. As to Count II, Section 468.609(4), Florida Statutes, provides:

    1. No person may engage in the duties of a building code administrator, plans examiner, or inspector pursuant to this part after October 1, 1993, unless such person possesses one of the following types of certificates, currently valid, issued by the board attesting to the person's qualifications to hold such position:

       1. A standard certificate.

       2. limited certificate.

       3. A provisional certificate.

25. Section 468.621(1)(c)1., Florida Statutes, provides:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       
       

       * * *

       
       

       1. Knowingly assisting any person practicing contrary to the provisions of:

          
          

          1. This part;

       
       

26. As to Count II the Petitioner has established that the Respondent allowed an unlicensed person to initial a permit card and radio in the inspection results to the County Building Department. Such acts were done according to the training regime then in effect in Martin County. The Respondent was following the practices modeled and accepted by his superiors.

27. The Respondent did not establish the policy of allowing non-licensed inspectors in training to perform such work nor did he knowing attempt to circumvent any requirements of the law. The acts and policies that the County authorized in the training of its employees and the resulting haphazard and informal reporting system should not be attributed to this Respondent. More important, his obedience to the directives of his superiors should not be construed as a knowing and willful violation of law.

28. Finally, on September 11, 2000, the Respondent filed a Motion for Attorney's Fees and Costs. Such motion argued that:

    It is apparent from the evidence submitted in this case that the claims were completely frivolous and therefore were brought for

    (sic) a 'improper purpose' pursuant to Section 120.595, Florida Statutes (1995).

    
    

29. The Respondent was not represented at the final hearing. The post-hearing request for attorney's fees and costs (presumably incurred in the submission of the Proposed Recommended Order and instant motion) set forth no factual basis for the claim of improper purpose. The Petitioner's inability to meet the burden of proof in this cause does not support a factual determination of improper purpose. Accordingly, it cannot be concluded that the Petitioner participated in this cause in furtherance of an improper purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida.

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000.

COPIES FURNISHED:

Dorota Trzeciecka, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Bobby T. Chambers

3520 Northeast Linda Drive Jensen Beach, Florida 34957

Anthony B. Spivey, Executive Director Building Code Administrators

and Inspectors Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-004892

Orders for Case No: 99-004892