STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF BUILDING CODE ) ADMINISTRATORS AND INSPECTORS, )

)

Petitioner, )

)

vs. )

)

RICHARD NOLES, )

)

Respondent. )

Case No. 10-6676PL

)

RECOMMENDED ORDER

On November 1, 2010, a duly-noticed hearing was held in Tallahassee, Florida, before Lisa Shearer Nelson, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth F. Duffy, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Richard L. Noles, pro se

62 Quail Run

Crawfordville, Florida 32327 STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent held himself out as a certificate holder in violation of section 468.629(1)(a), Florida Statutes, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On June 21, 2010, the Department of Business and Professional Regulation filed an Administrative Complaint against Respondent, alleging that he held himself out as a certificateholder in violation of section 468.629(1)(a), Florida Statutes. Respondent disputed the allegations in the Administrative Complaint and on July 30, 2010, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.

Respondent filed a Motion to Dismiss on August 13, 2010, asserting that the Department failed to comply with the time requirements in section 468.619, Florida Statutes. Because ruling on the motion would require the consideration of evidence, the issue was included in the Notice of Hearing issued August 24, 2010, scheduling the case to be heard September 15, 2010. At the request of Respondent, the matter was continued and rescheduled for November 1, 2010. The hearing proceeded as scheduled.

At hearing, the Department presented the testimony of Rodney Revell and Michael Gustafson. Petitioner's Exhibits A through F were admitted at hearing, and Petitioner was allowed to late-file Petitioner's Composite Exhibit G, which is also admitted.

Respondent presented the testimony of Leroy Parker, Donald Godwin, John Thomas, Linda Awad-Wellborn, and Luther Council, and Respondent's Exhibit 1 was also admitted into evidence. The Transcript of the hearing was filed with the Division on

November 16, 2010, and both parties timely filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order. All references to Florida Statutes are to the 2008 version unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the licensing and regulation of building code administrators and inspectors pursuant to section 20.165 and chapters 455 and 468, Part XII, Florida Statutes.

2. At all times material to the allegations in this case, Respondent was licensed as a standard inspector in Florida, having been issued license number BN 5106.

3. Respondent also held provisional licenses as a plumbing inspector and a mechanical inspector. Both licenses expired on January 24, 2009.

4. Respondent's license as a standard inspector did not permit him to perform plumbing or mechanical inspections. Therefore, after January 24, 2009, he was not authorized to perform them.

5. From February 3, 2003, to October 20, 2009, Respondent was employed by Wakulla County as a building inspector.

6. The Wakulla County Building Division uses inspection cards to track information related to permits and inspections on permitted building projects. While these information cards are not required by state law, the information is a useful tool for

   
   

   the building division and inspectors were expected to complete them.

7. An inspector's initials next to a particular inspection on an inspection card indicate that the inspector identified by initials performed the applicable inspection. If an inspector fails to sign the card when an inspection is completed, the card might be updated by another inspector who, after confirming the inspection had taken place, would initial for the other inspector and then put his or her own initials in parenthesis. For example, if Respondent conducted a framing inspection, he would identify the type of inspection in the "type" column and in the column titled Inspect., would put OKRN. If he failed to sign the inspection card and someone confirmed that he had performed the inspection, the notation would read, OKRN (CI).

8. A permit was issued for a mechanical upgrade at an existing church located at 953 Sopchoppy Highway. On April 23, 2009, Respondent signed the inspection card indicating that he had performed the re-inspection of the project.

9. A permit was issued on March 31, 2009, to install plumbing in an existing commercial building located at 2500 Crawfordville Highway. Respondent signed the inspection card for two separate inspections: the rough slab on April 1, 2009, and the final inspection on July 29, 2009.

10. On April 23, 2009, a permit was issued to install plumbing in existing restrooms at a building located at 1362

    
    

    Old Woodville Highway. On April 24, 2009, Respondent signed the inspection card indicating that slab plumbing inspection had been performed and the work had passed inspection.

11. On June 22, 2009, a permit was issued to install plumbing for a building at 71 Riverside Drive. On June 23, 2009, Respondent signed the inspection card indicating that the rough plumbing inspection had been performed and the work had passed inspection.

12. Respondent's provisional mechanical and plumbing inspector licenses had already expired at the time that he signed the inspection cards identified above.

13. Respondent did not advise his supervisor, Luther Council, when his provisional plumbing and mechanical inspector licenses expired. Mr. Council testified that he, rather than Respondent, actually performed all four of these inspections and that Respondent simply signed the inspection cards.

14. Respondent's employment with Wakulla County was terminated on October 20, 2009.

15. On November 25, 2009, a complaint was opened by the Department of Business and Professional Regulation, alleging a possible violation of section 468.629(1)(a), Florida Statutes. The complaint was assigned DBPR Case Number 2009-061682.

16. On December 1, 2009, Respondent was notified by letter of the complaint filed against him, and was given an opportunity to file a response to the complaint.

    
    

17. A memo was generated on January 29, 2010, regarding the April 14, 2010 probable cause panel meeting. DBPR Case Number 2009-061782 was listed on this memo, under a category described as "Cursory Reviews." No evidence was presented to indicate what directions were given regarding the complaint by the probable cause panel, or whether the April meeting actually took place.

18. Probable cause was found June 9, 2010.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2010).

20. As noted in the Preliminary Statement, Respondent filed a Motion to Dismiss in this case, asserting that the Department failed to comply with the time requirements of section 468.619, Florida Statutes. Respondent bears the burden to prove that the Department failed to comply with the statute, because he is the person asserting the affirmative relief of dismissal based on this issue. Wilson v. Department of Administration, Division of Retirement, 538 So. 2d 139, 141-142 (Fla. 4th DCA 1989).

21. Section 468.619 provides in pertinent part:

    
    

    1. The investigation of a complaint against an enforcement official is subject to the time restrictions set forth in this subsection, and failure to comply with any time restriction set forth in this subsection shall result in dismissal of the complaint against the enforcement official. An investigation of a complaint against an

       
       

       enforcement official that was dismissed for failure to comply with a time restriction set forth in this subsection may not be reopened. However, in any instance of an additional complaint being initiated, information or investigation related to the dismissed complaint may be used.

       1. The department must inform the enforcement official of any legally sufficient complaint received, including the substance of the allegation, within 10 days after receipt of the complaint by the department.

       2. The enforcement official shall be given

          30 days to respond to any legally sufficient complaint.

       3. No longer than 180 days from the date of the receipt of the complaint, the department shall submit the investigation, whether complete or not, to the probable cause panel for review. In the event the investigation is not complete, the probable cause panel shall review and instruct the department to complete the investigation within a time certain and, in no event, greater than 90 days or dismiss the complaint with prejudice.

22. In order to comply with this provision, the Department needed to notify Respondent of the pending complaint no later than December 5, 2009, and submit the investigation to the probable cause panel for review no later than May 24, 2010.

23. In this case, Respondent was notified in writing of the complaint against him on December 1, 2009, five days after the complaint was opened. The case was placed on an agenda for the probable cause panel on January 29, 2010, 60 days from the initial filing of the complaint. The April meeting of the probable cause panel was scheduled to take place April 14, 2010,

    135 days from the filing of the complaint. Probable cause was

    
    

    actually found June 9, 2010, 56 days after the date for the April 2010 meeting.

24. A threshold question to be answered is what constitutes submission to the probable cause panel for review? If provision of the materials in advance of the meeting is considered submission, then the case would be considered submitted on January 29, 2010. However, if that is the case, then the panel was required to "review and instruct the department to complete the investigation within a time certain and, in no event,

    greater than 90 days or dismiss the complaint with prejudice."

    
    

    § 468.619(4)(c), Fla. Stat. Under this scenario, the investigation would have to be complete by 90 days from January 29, 2010, i.e., by April 29, 2010. However this interpretation is problematic, because the panel cannot conduct the review required by the statute and give any instructions to the department until the probable cause panel actually meets.

25. The undersigned concludes that the only logical interpretation of the statute that gives meaning to section 469.619(1)(c) is that submission to the panel means presentation of the case at the probable cause meeting. Under this interpretation, assuming the April meeting actually took place, completion of the investigation would be required by 90 days from the April 14, 2010 meeting, or July 13, 2010.

26. The problem, however, is that no evidence was submitted to prove that the April probable cause meeting actually occurred

    
    

    and the case reviewed, and if not, when the case was first presented. The evidence simply indicates that the case was placed on an agenda for "cursory review." If the case was in fact presented at the scheduled April meeting, then the Department has complied with the provisions of section 468.619(4). If it was not presented until June 9, 2010, then the Department exceeded the time restrictions in section 468.619 and dismissal would be required.

27. Inasmuch as it was Respondent's burden to prove the Department failed to comply with the time frames in section 468.619, and not the Department's burden to prove it did comply, the Motion to Dismiss must be denied.

28. The Department is seeking to take disciplinary action against Respondent's license. Therefore, it is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

29. As stated by the Florida Supreme Court:

    
    

    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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 797, 800 (Fla. 4th DCA 1983).

    
    

30. Moreover, in disciplinary proceedings, the statutes and rules for which a violation is alleged must be strictly construed in favor of Respondent. Elmariah v. Department of Professional Regulation, 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Department of Professional Regulation, 534 So. 782, 784 (Fla. 1st DCA 1988).

31. The Administrative Complaint in this case alleges the following:

    2. Respondent is and has been, at all times material hereto, a licensed Building Inspector in the State of Florida, having been issued license number BN 5106.

    
    

    * * *

    
    

    1. A complaint was named against Respondent for allegedly performing mechanical and plumbing inspections in Wakulla County after the expiration of his Provisional Plumbing Inspector License and Provisional Mechanical Inspector Licenses [sic] on January 24, 2009.

       
       

    2. On January 4, 2010, Respondent replied to the allegations and stated that he "signed the card" on four inspections.

       
       

    3. Luther Council (hereinafter Council), Building Official for Wakulla County, sent a written response to Investigator Nicholas Mack and stated that he performed the inspections in question, save one performed by "Mr. Fewell," and that Respondent only signed off on the cards.

       
       

    4. Expert witness Michael Gustafson (hereinafter, Gustafson) stated that neither Respondent's nor Council's explanation as to the discrepancy in recording the inspector's

       
       

       identification appeared to be credible to the Hearing Board.

       
       

    5. Specifically, the Hearing Board was not persuaded because several inspections conducted were done while Council was on sick leave or at a Daytona Beach Conference.

       
       

    6. Gustafson also pointed to the statements of members of the Building Inspection Division who stated that they were aware that Respondent was performing actual inspections.

       
       

    7. Petitioner re-alleges and incorporates the allegations set forth in paragraphs one

       (1) through nine (9) as though set forth herein.

       
       

    8. Section 468.629(1)(a), Florida Statutes, states in that "[n]o person may [f]alsely hold himself or herself our [sic] as a certificateholder."

       
       

    9. Holding oneself as a certificateholder is a violation of the aforementioned statute.

       
       

    10. Based on the foregoing, Respondent violated Section 468.629(1)(a) when he performed inspections while holding expired licenses.

    
    

32. As a preliminary matter, it is a close question whether the factual allegations in the Administrative Complaint actually present a basis for finding that Respondent committed a violation of section 468.629, Florida Statutes. Of the paragraphs quoted above, only two paragraphs (paragraphs 5 and 13) allege conduct by Respondent as opposed to reciting what others have said about him. Hearsay statements by others about Respondent simply cannot form the basis for discipline. Conduct by Respondent must be alleged.

    
    

33. That being said, the Administrative Complaint does allege that Respondent performed inspections while holding expired licenses, and that doing so is a violation of section 468.629, Florida Statutes. No specific properties are alleged. However, the problems with the Administrative Complaint do not stop there. The only violation charged in the Administrative Complaint is a violation of section 468.629(1)(a), Florida Statutes. Section 468.629 provides in pertinent part:

    468.629 Prohibitions; penalties.--

    1. No person may:

       (a) Falsely hold himself or herself out as a certificateholder.

       
       

       * * *

       
       

    2. Any person who violates any provision of this part commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Any person who violates any provision of this part after a previous conviction for such violation commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

34. While section 468.629 provides for criminal penalties, it does not confer upon the Department or the Board of Building Code Administrators and Inspectors the authority to take disciplinary action when a licensee violates its provisions. An administrative agency may not take action against a license for some cause not clearly within the parameters of its statutory authority. Federgo Discount Center v. Dep't of Prof. Reg.,

    452 So. 2d 1063, 1066 (Fla. 3d DCA 1984).

    
    

35. Section 468.621, Florida Statutes, on the other hand,

    
    

    delineates the conduct for which the Board has the authority to take action against a license. That section provides in pertinent part:

    468.621 Disciplinary proceedings.--

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

       1. Violating or failing to comply with any provision of this part, or a valid rule or lawful order of the board or department pursuant thereto.

       2. Obtaining certification through fraud, deceit, or perjury.

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

          1. This part; or

          2. The building code adopted by the enforcement authority of that person.

       4. Having been convicted of a felony against this state or the United States, or of a felony in another state that would have been a felony had it been committed in this state.

       5. Having been convicted of a crime in any jurisdiction which directly relates to the practice of building code administration or inspection.

       6. Making or filing a report or record that the certificateholder knows to be false, or knowingly inducing another to file a false report or record, or knowingly failing to file a report or record required by state or local law, or knowingly impeding or obstructing such filing, or knowingly inducing another person to impede or obstruct such filing.

       7. Failing to properly enforce applicable building codes or permit requirements within this state which the certificateholder knows

          
          

          are applicable or committing willful misconduct, gross negligence, gross misconduct, repeated negligence, or negligence resulting in a significant danger to life or property.

       8. Issuing a building permit to a contractor, or any person representing himself or herself as a contractor, without obtaining the contractor's certificate or registration number, where such a certificate or registration is required.

       9. Failing to lawfully execute the duties and responsibilities specified in this part and ss. 553.73, 553.781, 553.79, and 553.791.

       10. Performing building code inspection services under s. 553.791 without satisfying the insurance requirements of that section.

       11. Obstructing an investigation or providing or inducing another to provide forged documents, false forensic evidence, or false testimony to a local or state board or member thereof or to a licensing investigator.

       12. Accepting labor, services, or materials at no charge or at a noncompetitive rate from any person who performs work that is under the enforcement authority of the enforcement official and who is not an immediate family member of the enforcement official. The term "immediate family member" includes a spouse, child, parent, sibling, grandparent, aunt, uncle, or first cousin of the person or the person's spouse or any person who resides in the primary residence of the enforcement official.

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       1. Denial of an application for certification.

       2. Permanent revocation.

          
          

       3. Suspension of a certificate.

       4. Imposition of an administrative fine not to exceed $5,000 for each separate offense. Such fine must be rationally related to the gravity of the violation.

       5. Issuance of a reprimand.

       6. Placement of the certificateholder on probation for a period of time and subject to such conditions as the board may impose, including alteration of performance level.

       7. Satisfactory completion of continuing education.

       8. Issuance of a citation. (Emphasis supplied.)

    
    

36. The conduct alleged, i.e., that Respondent held himself out as a licensed plumbing and mechanical inspector when those licenses had expired, could be charged as a violation of section 469.621(1)(a), Florida Statutes (violating or failing to comply with any provision of this part) if properly pled. However, the Department did not charge a violation of section 468.621. Where the legislature has enacted separate provisions for criminal and administrative penalties, the Board must adhere to the Legislature's stated delineation of authority. State v. Bowling, 712 So. 2d 798 (Fla. 2d DCA 1998). For the Board to find a violation where none was alleged would be a violation of due process. B.D.M. Financial Corp. v. Department of Business and Professional Regulation, 698 So. 2d 1359, 1362 (Fla. 1st DCA 1997).

37. Finally, the evidence presented did not necessarily support the allegation actually charged. While there was clear

and convincing evidence that Respondent signed inspection cards for plumbing and mechanical inspections after his provisional licenses in those areas expired, the evidence was not clear and convincing that he actually performed the inspections.

Respondent denied doing so and Mr. Council claimed, consistent with Respondent's testimony, that he actually inspected three of the properties. The only evidence that Respondent actually performed the inspections was hearsay statements contained in Petitioner's Exhibit E. This evidence is insufficient to form the foundation for a finding that Respondent actually performed the inspections as alleged. Given the deficiencies in both the pleadings and the proof presented at hearing, dismissal is required.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Florida Board of Building Code Administrators and Inspectors dismiss the Administrative Complaint in its entirety.

DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010.

COPIES FURNISHED:

Elizabeth F. Duffy, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Richard Larry Noles

62 Quail Run

Crawfordville, Florida 32327

Robyn Barineau, Executive Director Building Code Administrators

and Inspectors Board Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Reginald Dixon, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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: 10-006676PL

Orders for Case No: 10-006676PL