Judges: JAMES E. BRADWELL
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 04, 1990
Summary: The issue posed for decision herein is whether or not Respondent engaged in acts and/or conduct, which will be set forth hereinafter in detail, in violation of Chapter 489, Florida Statutes, as alleged by Petitioner in its Administrative Complaints filed herein dated December 1, 1981, and March 8, 1982. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant:Resp
Summary: The issue posed for decision herein is whether or not Respondent engaged in acts and/or conduct, which will be set forth hereinafter in detail, in violation of Chapter 489, Florida Statutes, as alleged by Petitioner in its Administrative Complaints filed herein dated December 1, 1981, and March 8, 1982. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant:Respondent didn't qualify his corporation, go by code, or fix deficiencies. He also operated in county without license. Recommend probation and fine.
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DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA CONSTRUCTION ) INDUSTRY LICENSING BOARD, )
vs. ) CASE NOS. 82-1554 1/
SPENCER L. JAMES, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James F. Bradwell, held a final hearing in these cases on January 25, 1983, in Tallahassee, Florida. The parties were afforded leave through March 8, 1983, to submit proposed recommended orders. In so doing, the parties waived the thirty-day time requirement that the undersigned issue a Recommended Order herein within thirty days following the close of the hearing. The Petitioner has submitted a proposed recommended order which was considered by me in preparation of this Recommended Order. 2/
For Petitioner: John O. Williams, Esquire
For Respondent: George S. Reynolds, Esquire
The issue posed for decision herein is whether or not Respondent engaged in acts and/or conduct, which will be set forth hereinafter in detail, in violation of Chapter 489, Florida Statutes, as alleged by Petitioner in its Administrative Complaints filed herein dated December 1, 1981, and March 8, 1982.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant:
By its Administrative Complaints filed herein, Petitioner charges Respondent with three counts of deliberately disregarding the applicable building code, in violation of Section 489.129(1)(d), Florida Statutes (1979), presently codified as Section 489.129(1)(d), Florida Statutes (1981); with
violation of Section 489.129(1)(k), Florida Statutes (1979), in that he abandoned a construction project; with violation of Section 489.129(1)(m), Florida Statutes (1979), presently codified as Section 489.129(1)(m), Florida Statutes (1981), in that he is guilty of fraud or deceit or misconduct in the practice of contracting; with violation of Section 489.129(1)(c), Florida Statutes (1979), presently codified as Section 489.129(1)(c), Florida Statutes (1981), to wit: Section 455.227(1)(a), Florida Statutes (1979) in that he is guilty of a misleading, deceptive, untrue or fraudulent representation in the practice of contracting; with violation of Section 489.129(1)(j), Florida Statutes, to wit: Section 489.117(2), Florida Statutes (1979), in that he was engaging in the practice of contracting in a county where he was not properly registered; with violation of Section 489.129(1)(e), Florida Statutes (979), presently codified as Section 489.129(1)(e), Florida Statutes (1981), in that he aided or abetted an unlicensed person to evade the provisions of the contracting license law; with violation of Section 489.129(1)(f), Florida Statutes (1979), presently codified as Section 489.129(1)(f), Florida Statutes (1981), in that he knowingly combined or conspired with an unlicensed person and allowed his registration to be used by an unlicensed person with the intent to evade the provisions of the contracting license law; with violation of Section 489.129(1)(g), Florida Statutes (1979), presently codified as Section 489.129(1)(g), Florida Statutes (1981), in that he acted in the capacity of a contractor in a name other than as registered; with violation of Section 489.129(1)(j), Florida Statutes (1979), presently codified as Section 489.129(1)(j), Florida Statutes (1981), to wit: Sections 489.119(2) and (3), Florida Statutes (1979), in that he failed to properly qualify a company under which he was doing business.
In support of the allegations in the Administrative Complaint filed in Case No. 82-1554, Petitioner presented the testimony of Newton B. Webb and Lewis Abbott, and introduced three (3) exhibits into evidence. Respondent testified on his own behalf and introduced no exhibits.
In support of the allegations in the Administrative Complaint filed in Case No. 82-1645, Petitioner presented the testimony of Gladys Durden, Carolyn Thomas, and Cory M. Henriksen and introduced four (4) exhibits. Respondent testified on his own behalf and presented the testimony of Abe Anderson. Respondent introduced one (1) exhibit.
Respondent is a registered residential contractor having been issued license No. RR0022063. That license was initially issued during 1976 and is current through calendar year 1983.
On February 17, 1983, (Case No. 82-1554), Respondent entered into a contract with Newton B. and Flora Mae Webb to construct a fireplace in their trailer for the sum of $1,725. (Petitioner's Exhibit 1) The contract was on a letterhead indicating that the Respondent was doing business as James Construction Company. The fireplace was subsequently constructed by the Respondent and payment was made in full. (Stipulation of counsel, TR p. 10). Respondent did not obtain a building permit to construct the fireplace for the Webbs.
The Southern Standard Building Code, which is the building code that was being enforced in Wakulla County, Florida, during times material when the fireplace for the Webbs was being constructed, contains a provision which requires that a permit be obtained for the construction of a fireplace. (TR p. 16; Section 106.1, Southern Standard Building Code.)
Respondent is not licensed to engage in the practice of contracting in Wakulla County. The site of the Webb home, where the Respondent constructed the fireplace in question, is in Wakulla County. Respondent has not qualified James Construction Company as the entity through which he would engage in the practice of contracting in Wakulla County.
Following completion of the fireplace for the Webbs, Mr. Webb complained that the fireplace was improperly constructed in that smoke poured from the hearth in a profuse manner. Mr. Webb complained that his fire detection alarm was constantly triggered by the smoke pouring out of the chimney.
Respondent returned to the Webbs' residence and checked the fireplace and its operation on at least three occasions. On the fourth occasion, Respondent returned to the Webb residence with his counsel and an official from the City of Apalachicola, Florida. A small fire with paper was started and Respondent demonstrated to the Webbs, his attorney, and the building official how the damper in the fireplace operated and what Mr. Webb was doing wrong in the operation of the damper. Respondent gave Mr. Webb and those in attendance a brief demonstration in the proper and correct manner in which the damper should be opened so that the chimney vented properly. During that demonstration, the chimney did not smoke.
During an inspection by the building official, Lewis Abbott, the following violations of the Southern Standard Building Code were observed:
The chimney did not extend three feet above the roof of the residence.
The foundation of the fireplace did not comport with the minimum requirements of the Southern Standard Building Code.
The liner between the wall and the flue of the chimney was approximately 3-1/2 inches, whereas the minimum thickness required by the Southern Standard Building Code is 8 inches.
A smoke chamber was not installed.
The outside chimney was constructed against a combustible wall and the one-inch minimum clearance requirement was not met.
The hearth was of insufficient size and was not supported sufficiently by a foundation that meets the minimum requirements of the Southern Standard Building Code. (TR p. 17)
It is found that these conditions existed at the Webb residence at the time of Inspector Abbott's inspection.
On September 30, 1979, (Case No. 82-1645), Respondent entered into a contract with Gladys M. Durden to rehabilitate her residence for the sum of
$12,000. (Stipulation of counsel and TR p. 65).
Respondent agreed inter alia, to repair the plumbing; install new flooring; build an extra room; install a new kitchen sink and cabinet; install vinyl floors as needed; and replace several windows and doors. According to Ms. Durden and Carolyn Thomas, Manager of the Federal Block Grant Program, the principal items which the Respondent failed to complete and/or correct centered
around problems with the plumbing and his failure to install new flooring in the bathroom.
Payment for the construction to the Durden residence was made by draws from the Block Grant Program and Respondent received payment based on two-party checks, which required, for negotiation, that both payees (Respondent and the homeowner-- Gladys Durden) sign the check.
At the time Respondent presented the check representing final payment for construction to the Durden residence, Ms. Durden refused to sign it based on her claim that Respondent had failed to complete all of the work as contracted.
Respondent presented the check for payment, which was honored, at the local bank in Apalachicola even though it was not endorsed by Ms. Durden.
Prior to receiving payment for the final phase of the work to the Durden residence, Respondent had the construction on the Durden residence checked by the local building officials and a certificate of occupancy was issued which enabled Respondent to receive final payment for the Durden project from the City of Apalachicola's Block Grant Program.
After negotiating the check representing the final payment for construction work done to the Durden residence, Respondent did not return to the site despite notification from the City Attorney of Apalachicola, the Block Grant Administrator, Carolyn Thomas, and phone messages received from Ms. Durden.
Respondent encountered numerous problems while in the construction phase on the Durden residence. Ms. Durden had ten (10) children living in her home at the time construction was ongoing and, as a result, Respondent had to redo several phases of the work which had been previously done days earlier based on the number of residents living in the Durden home.
Respondent did not return to the Durden residence based on his fear that Ms. Durden believed in "voodoo" and his position that he had completed all that was required by him pursuant to the contract.
Respondent utilized the services of a plumber, Abe Anderson, to complete the plumbing and flooring phase of the Durden project. Abe Anderson installed a new floor, consisting of 1/2 inch plywood, and a new vinyl covering to the bathroom floor of the Durden residence in all areas except where the bath tub sat in the bathroom. When Respondent left the Durden project the plumbing operated properly. (Testimony of Respondent, Anderson, and Building Inspector Cory M. Henriksen.)
Respondent acknowledged that he did not, in all respects, comply with the Southern Standard Building Code in his construction of the fireplace for the Webbs. However, Respondent contends that the code provisions are incorrect and that in any event he has been constructing chimneys in excess of twenty (20) years and that all other builders in the area construct chimneys in the same manner as he. In support of his position in this regard, Respondent points to the fact that most of the chimneys in the area do not satisfy the three-feet- height criteria and that various other sections of the Southern Standard Building Code, which he is charged with violating, are either not required or not followed.
Respondent acknowledges the fact, and it is found herein, that he is not registered to engage in contracting in Wakulla County, and that he has not qualified James Construction Company as the entity through which he is conducting his contracting business.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of Petitioner is derived from Chapter 489, Florida Statutes.
Respondent, a licensed registered residential contractor, is subject to the disciplinary guides of Chapter 489, Florida Statutes. Section 489.129(1)(d), Florida Statutes (1981) empowers the Board to revoke or suspend the certificate of registration of a contractor, or to impose an administrative fine not exceeding $1,000, or other sanctions, if a contractor is found guilty of deliberately disregarding and violating the applicable building code.
Respondent's action in engaging in a project through the entity James Construction Company with the Webbs while he was licensed as an individual, amounts to a failure on his part to properly qualify a company under which he was doing business, in violation of Section 489.129(1)(j), Florida Statutes, to wit: Sections 489.119(2) and (3), Florida Statutes (1979).
Respondent's action in failing to obtain a building permit to construct the fireplace for the Webbs, amounts to a deliberate disregard and violation of the applicable building code, in violation of Section 489.129(1)(d), Florida Statutes (1979), presently codified as Section 489.129(1)(d), Florida Statutes (1981).
Respondent's action in failing to construct the fireplace for the Webbs in conformity with the Southern Standard Building Code, as set forth hereinabove, amounts to conduct violative of the applicable building code, in violation of Section 489.129(1)(d), Florida Statutes (1981).
Respondent's action in failing to register as a contractor in Wakulla County before engaging in the practice of contracting in that county, amounts to conduct violative of Section 489.117(2), Florida Statutes (1979), presently codified as Sections 489.117(1) and (2), Florida Statutes (1981).
Respondent's action in failing to return to the Durden residence to complete claimed deficiencies, amounts to conduct violative of Section 489.129(1)(k), Florida Statutes (1979) presently codified as Section 489.129(1)(k), Florida Statutes (1981).
In all other respects, insufficient evidence was offered to establish the remaining complaint allegations.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's license as a registered residential contractor (License No. RR0022063) be placed on probation for a period of one
(1) year. It is further RECOMMENDED that Respondent be assessed an administrative fine in the amount of five hundred dollars ($500).
RECOMMENDED this 26th day of July, 1983, in Tallahassee, Florida.
JAMES E. BRADWELL
Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1983.
1/ The cases were consolidated in the interest of judicial economy.
2/ To the extent that the proposed findings are not incorporated in this Recommended Order, said proposed findings, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.
John O. Williams, Esquire
George S. Reynolds, Esquire
Mr. James Linnan Executive Director Construction Industry Licensing Board
Mr. Fred M. Roche Secretary
