STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re) The suspension of the ) certified general contractor's ) license of JOHN C. LEDBETTER )

d/b/a JOHN LEDBETTER DEVELOPMENT, ) CASE NO. 76-490 INC., CGC5281, P. O. Box 2538, )

Ormond Beach, Florida 32074 )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on June 25, 1976, in Daytona Beach, Florida.

The following appearances were entered: Barry S. Sinoff, Jacksonville, Florida, for the Florida Construction Industry Licensing Board; and Jason G. Reynolds, Daytona Beach, Florida, for the Licensee, John C. Ledbetter d/b/a John Ledbetter Development, Inc.

The Florida Construction Industry Licensing Board ("Board" hereafter) filed an Administrative Complaint against John C. Ledbetter d/b/a John Ledbetter Development, Inc. ("Licensee" hereafter) and served it upon the Licensee on or about March 3, 1976. It is alleged in the Administrative Complaint that the Licensee violated the provisions of the Southern Standard Building Code, and erected an inadequate fire wall in a project known as River Bend Condominium or Ocean Palm Villas South. The Licensee moved to dismiss the complaint, and the motion was denied. The Licensee then filed its Answer denying that he violated the provisions of the building code or constructed inadequate fire walls, and alleging that he was not the general contractor on the project, and that the fire walls constructed on the project met or exceeded the requirements of the Southern Standard Building Code. By notice dated April 13, 1976, the final hearing was scheduled to be conducted on May 21, 1976. The Board requested a continuance and by notice entered May 27, 1976, the hearing was rescheduled to be conducted on June 25, 1976.

At the hearing the Board called the following witnesses: John C. Ledbetter, the Licensee; Betty M. Roddy, the Clerk for the North Peninsular Zoning Commission in Volusia County; Harold L. Blumberg, the dry wall and painting contractor on the project which was the subject of this case; and James Hugh Gordon, Jr., the Supervisor of Permits and Inspections for Volusia County. The Licensee called Gerald A. Hadley, the General Contractor on the project as its only witness. Board Exhibits 1 - 5, and Licensee's Exhibit 1 were offered into evidence at the hearing and were received. The parties were invited to submit Post-Hearing Memoranda, and Proposed Recommended Orders.

FINDINGS OF FACT

1. On or about March 3, 1976, the Board served its Administrative Complaint upon the Licensee. On May 18, 1976 the Licensee filed its Answer to the Administrative Complaint. The final hearing in this case was scheduled by Notice dated April 13, 1976, and was rescheduled by Notice dated May 27, 1976.

2. John C. Ledbetter holds Certified General Contractor's License No. CG C5281 issued by the Florida Construction Industry Licensing Board. The Licensee Ledbetter has been a certified contractor at all times relevant to this proceeding.

   
   

3. The Licensee was the co-developer of a condominium project known as Ocean Palm Villas South or Ocean Palms Riverfront Condominium. Gerald M. Hadley, Sr., a certified contractor was initially listed as the general contractor for the project. Later Neil Wayne Smith was designated the general contractor. Smith was discharged as the general contractor, and by letter dated June 11, 1973 the Licensee notified the North Peninsular Zoning Commission that he would be substituted as the general contractor. Shortly thereafter Gerald M. Hadley was again designated the general contractor, and the change was acknowledged by the forth Peninsular Zoning Commission by letter dated August 28, 1973. Construction on Ocean Palm Villas South did not commence until after August 28, 1973. No construction was undertaken during the time that Ledbetter was designated as the general contractor.

   
   

4. The general contractor was responsible for installation of the walls in Ocean Palm Villas South. A subcontractor was utilized to install the dry wall, but the wall construction was supervised by the general contractor. The original plans called for use of 5/8" thick gypsum wallboard. The wall units were to be installed in the manner depicted in Board Exhibit 5. The gypsum was to be nailed on either side of 4" studs, with insulating material laid between the studs. 5/8" gypsum was not available to the general contractor. 1/2" gypsum wallboard was utilized. A new wall assembly was planned. With this assembly gypsum wallboard was nailed to studs, but the wallboard on the other side of the wall was nailed to alternately interspaced studs. Insulating material was woven between the interspaced studs. (See: Board Exhibit 3). The decision to use this assembly was made by Gerald A. Hadley, a labor foreman. Hadley's father was the general contractor, and was consulted in making the decision. A Mr. Rasmussen, the building inspector, was consulted about the wall assembly, and he gave his approval.

   
   

5. At the time that construction was under way on the Ocean Palm Villas South project, the 1965 Edition with Revisions of the Southern Standard Building Code was in effect in the North Peninsular Zoning District of Volusia County. The Ocean Palm Villas South project lied within that district. The wall assembly utilized by the general contractor does not precisely follow any of the assemblies set out as appropriate in the code. The wall assembly utilized does, however, meet the one hour fire resistance standard required by the code.

   
   

6. There was no evidence presented at the hearing from which it could be concluded that the Licensee Ledbetter had any knowledge of the wall assembly utilized in this project other than what was set out in the original plans. Ledbetter was not the contractor for the project when the assembly was constructed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

8. The burden of establishing that a licensee has violated the provisions of a licensing law and that the license should be suspended or revoked lies with

   the licensing authority. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

   
   

9. Florida Statutes Ch. 468 Part II establishes the Florida Construction Industry Licensing Board, and provides for the licensing of construction contractors. Florida Statutes Section 468.112 provides as follows:

   
   

   "(1) On its own motion or the verified written complaint of any person,

   the Board may investigate the action of any contractor certified or registered under this part and hold hearings pursuant to Chapter 120, Florida Statutes . . . the Board may take appropriate disciplinary action

   if the contractor is found to be guilty of or has committed any one or more of the acts or ommissions constituting cause for disciplinary action set out herein or adopted as rules or regula- tions by the Board.

   
   

   1. The following acts constitute cause for disciplinary action:

      1. Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any

         municipalities, cities or counties thereof."

         * * *

         
         

10. The Licensee Ledbetter was not the general contractor of the project involved in this action at the time that the alleged violations occurred. There is no evidence from which it could be concluded that the wall assembly as constructed was planned by Ledbetter or even known to Ledbetter.

    
    

11. The evidence will not support a finding that any provisions of the applicable building codes were violated in the Ocean Palm Villas South project. Insofar as any violation can be gleaned from the testimony, the evidence will not support a finding that the general contractor of the project willfully or deliberately disregarded the applicable building codes. Furthermore, the evidence will not support the finding that the Licensee Ledbetter had any knowledge of the alleged violations.

    
    

12. The Florida Construction Industry Licensing Board has failed to establish that the Licensee Ledbetter committed any violation which would justify any disciplinary action being taken against him. The Administrative Complaint filed against the Licensee should be dismissed.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Administrative Complaint filed against John C. Ledbetter be dismissed.

ENTERED this 3rd day of August, 1976, in Tallahassee, Florida.

COPIES FURNISHED:

Barry S. Sinoff, Esquire 1010 Blackstone Building

Jacksonville, Florida 32202

Jason G. Reynolds, Esquire 1025 Volusia Avenue

Daytona Beach, Florida 32014

Mr. J. K. Linnan, Executive Director

Florida Construction Industry Licensing Board

Post Office Box 8621 Jacksonville, Florida 32211

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

Docket for Case No: 76-000490

Orders for Case No: 76-000490