STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, CONSTRUCTION )
INDUSTRY LICENSING BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2991
) 81-2992
DANIEL FOWLER, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in West Palm Beach, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on April 15, 1982, having been consolidated for hearing with Department of Professional Regulation, Construction Industry Licensing Board v. Paul Pariser, Case No. 81-2992. The Division of Administrative Hearings received the transcript of proceedings on May 27, 1982. On June 9, 1982, Donald R. Bicknell, Jr., Esquire, appeared as substitute counsel for John
Young, Esquire, who represented the respondent at hearing. On Mr. Bicknell's motion for extension of time, time for filing proposed recommended orders was extended until July 23, 1982. Thereafter, respondent's present counsel entered a notice of appearance and moved for an additional extension of time, on which motion time for filing proposed recommended orders was extended until August 2, 1982.
APPEARANCES
The parties are represented by counsel:
For Petitioner: John O. Williams, Esquire
547 North Monroe Street, Suite 204 Tallahassee, Florida 32301
For Respondent: Guyte McCord III, Esquire
Post Office Box 82 Tallahassee, Florida 32302
By administrative complaint dated September 17, 1981, petitioner alleged that respondent, a certified general contractor, "violated Section 489.129(1)(d), Florida Statutes (1979), in that he deliberately disregarded the applicable building code" when "[o]n or about March 2, 1981, the City of Coconut Creek, through James H. Cowley, Director of Building and Zoning, issued a stop work order to the Respondent, d/b/a Raben-Pastal, for certain construction. .
.[which respondent disregarded] in violation of the South Florida Building Code 201.1(a)(4), which has been adopted by the City of Coconut Creek."
Count two alleges that "[o]n or about May 7, 1981, the City of Coconut Creek. . .notified Respondent that he was to install shoring on a four-story building. . .permit number 344-81, and a two-story building. . .permit number 280-81 [but that] Respondent continued construction and thereby exposed workmen to danger. . .[in violation of] Section 489.129(1)(m), Florida Statutes (1979)." Count three alleges that construction persisted notwithstanding a second notice to install shoring "[o]n or about May 15, 1981."
Count four alleges that the City of Coconut Creek issued a second stop work order on May 28, 1981, which respondent disregarded "in violation of the South Florida Building Code, Section 201.1(a)(4), . .[and thereby] violated Section 489.129(1)(d), Florida Statutes (1979), in that he deliberately violated the applicable building code."
Count five alleges that "[o]n or about May 22, 1981, Respondent attempted to deny access to the above referenced construction project to the Building Inspector for the City of Coconut Creek. . .[and thereby] violated Section 489.129(1)(m), Florida Statutes (1979). . .[and gave] proof and continued evidence. . .of misconduct."
Count seven alleges that respondent "violated Section 489.129(1)(m), Florida Statutes (1979), in that the above referenced constitutes proof and continued evidence that licensee is guilty of gross negligence, incompetency or misconduct in the practice of contracting." On petitioner's motion, count six was dismissed on August 6, 1982.
FINDINGS OF FACT
Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981,
and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each.
PLANS CHANGE
After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.)
At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation.
STOP WORK ORDER ENTERED
On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated:
Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved.
All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date.
While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work.
For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4
(A)(B). Petitioner's Exhibit No. 5.
The following day, Mr. Pariser wrote Mr. Cowley, as follows:
In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and
304.4 is invalid.
We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . .
Respondent's Exhibit No. 16.
Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows:
I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order
issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code.
After meeting with your architect, Mr. Bryan, I propose the following solution.
The stop work order will remain in effect for Construction only, i.e. steel
re-inforcement, concrete, etc. could not be placed.
Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming.
If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15.
To this, Mr. Pariser responded the following day with this letter:
In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81.
There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns.
Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card.
My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance.
If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by
the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19.
On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981.
STOP WORK ORDER VIOLATED
By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light.
STRUCTURAL PROBLEMS
In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged
D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981.
SHORING ORDERED
On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated:
I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings.
Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10.
A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied:
I am in receipt of your letter of May 7, 1981, please be advised that even though
Raben-Pastal is respecting your wishes as to
the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6.
In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley:
I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound.
We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8.
Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name:
Per your instructions requiring 4 post shores to be placed around our columns on building
C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5.
During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser.
FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED
Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling.
If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall.
On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic],
Mr. Thomas and I made an inspection of the
above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81.
Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order.
YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END.
ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION.
Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11.
To this letter Mr. Fowler replied, also on May 15, 1981:
Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th.
It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation.
As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab.
However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it?
Respondent's Exhibit No. 10.
The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building.
Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T.
306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony.
Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated.
The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler.
LOAD TEST
As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled.
LAWYERS' MISUNDERSTANDING
Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted.
That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact.
Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode.
BUILDER'S ENGINEER STOPS TEST
Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.)
SECOND STOP WORK ORDER ENTERED
On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued:
With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9
of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued.
During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr.
Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12.
By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981.
On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
CONCLUSIONS OF LAW
The Construction Industry Licensing Board "may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed $1,000, place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of. . .(d) Willful or deliberate disregard and violation of the applicable building codes or laws of the state or any municipalities. . .[or] (m) Upon proof and continued evidence that she licensee is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." Section 489.129(1), Florida Statutes (1981).
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d
201 (Fla. 1979). License revocation proceedings have, indeed, been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission,
281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission,
289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980).
At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1974); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). With respect to counts one and four of the administrative complaint, petitioner failed to carry this burden. The "applicable building code" never came in evidence, except for scattered fragments. At one point this colloquy transpired:
[Mr. Williams] Would you please tell me under what provision of the South Florida Building Code you had authority to suspend the permit already issued on that building?
[The Witness] May I refer to the Code:
THE HEARING OFFICER: Could you give me the number?
THE WITNESS: 302 point one paren C. "Each application shall describe the land and" --
MR. WILLIAMS: May I interrupt for just a minute, Your Honor. I think it is just a matter of procedure and I think that you can do this just by judicial notice, but put in the record that the City of Coconut Creek did in fact adopt the South Florida Building Code. I think that we have established that his job was to enforce the Code, but I don't think that we have established the fact that the City has adopted the Code.
MR. YOUNG: I think that is appropriate.
THE HEARING OFFICER: Counsel have stipulated that the City of Coconut Creek adopted the South Florida Building Code as an ordinance.
MR. YOUNG: Yes, I think that is true.
THE HEARING OFFICER: However, the Code is still not in evidence. There are no provisions of the Code in evidence at this point.
MR. YOUNG: That is correct. (T. 71-72.)
Various provisions of the South Florida Building Code were later read into evidence by a witness, but taken together they did not seem to support the first stop work order. As to what rights or duties the South Florida Building Code imposes on contractors to whom an unauthorized stop work order is directed, the record in these proceedings is silent. There was no proof of any culpable violation or disregard of the second stop work order, in any event.
Petitioner proved, however, that construction continued, even if at a reduced pace, after the order to shore issued on May 7, 1981, and before the shoring was properly in place. Respondent testified that scores of man hours were devoted to shoring before May 15, 1981; yet the evidence showed clearly and convincingly that the first floor of the four-story building had still not been shored on May 14, 1981. If respondent's testimony about the amount of shoring had been credited, it would follow that workmen's lives were unnecessarily imperiled during those scores of man hours. As it is, respondent's failure to see to it that the four-story building was shored from the ground up, as quickly as possible, beginning on May 7, 1981, and, in any case, before any other work was done (including shoring the upper stories) was "gross negligence" or "incompetency" or a combination of the two, within the meaning of Section 489.129(1)(m), Florida Statutes (1979) and (1981).
There was no proof that respondent struck Mr. Thomas on the day he blocked his approach to the four-story building or did anything beyond attempting to maintain the status quo while arguing his position to the policeman who ended up arresting him. Under the unique facts of the present case, it cannot be said that respondent's conduct amounts to misconduct within the meaning of Section 489.129(1)(m), Florida Statutes (1979), as alleged in count five of the administrative complaint.
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner suspend respondent's license for six months.
DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1982.
ENDNOTE
1/ The parties stipulated to the City of Coconut Creek's adoption of the South Florida Building Code as an ordinance. The code was not offered in evidence, but the text of certain sections was read into the record.
COPIES FURNISHED:
John O. Williams, Esquire Suite 204
547 North Monroe Street Tallahassee, Florida 32301
Guyte McCord III, Esquire Post Office Box 82 Tallahassee, Florida 32302
James Linnan, Executive Director Construction Industry Licensing
Board
Post Office Box 2 Jacksonville, Florida 32202
Samuel R. Shorstein, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 04, 1990 | Final Order filed. |
| Sep. 03, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 05, 1987 | Agency Final Order | |
| Sep. 03, 1982 | Recommended Order | Respondent ignored building code and stop orders in violation of statute. Suspend Respondent's license for six months. |
