STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY LICENSING ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1045

)

MILTON T. WARREN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 115, Putnam County Courthouse, Palatka, Florida, on August 31, 1983. This Recommended Order is being entered following the receipt and review of the transcript of the proceedings which was filed with the Division of Administrative Hearings on September 15, 1983. In addition, the parties to this action in the person of counsel have submitted proposed recommended orders.

Those proposed recommended orders have been reviewed. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are not consistent with the Recommended Order, they have been rejected based upon irrelevance, immateriality, that they are contrary to the facts found, that they are contrary to the conclusions of law reached or that they are contrary to the recommended disposition.

APPEARANCES

For Petitioner: Douglas H. Shropshire, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Tim Keyser, Esquire

Post Office Box 92 Interlachen, Florida 32048

ISSUES

The issues presented in this action are based upon an administrative complaint from the State of Florida, Department of Professional Regulation against Milton T. Warren. Through the administrative complaint, Respondent is charged with violation of Section 489.129(1)(d), Florida Statutes, in that he willfully or deliberately disregarded and violated applicable building codes in the course of his involvement with a project in Palatka, Florida known as the Ginn job. In particular, Respondent is accused of continuing to work on the project with disregard for a notice of correction left at the job site and that

he covered unapproved work in that he removed a stop work order at the job site without prior authorization. The specific references to local building codes by citation shall be made in the conclusions of law.

FINDINGS OF FACT

1. Milton T. Warren is a registered general contractor licensed by the Florida Construction Industry Licensing Board, license number RG 0029984.

   
   

2. Respondent made a contract with J. A. Ginn to construct an addition to the Ginn residence which is located at Herja Acre Lane in Palatka, Putnam County, Florida. To construct the project, Respondent obtained a building permit from the Putnam County Building-Zoning and Inspections Department. That permit was obtained on August 24, 1982. A request was made for an inspection related to framing involved in the Ginn project. That inspection was conducted by the Putnam County Building Department in the person of Richard F. Richter, Chief Building Inspector, Putnam County. The date of the inspection was September 21, 1982. At the time of the inspection, Richter felt the header over the exterior door in the utility room addition which was being attached to the sides of the residence was not sufficient. This door is depicted in a photograph, Petitioner's Exhibit 4 admitted into evidence. In addition, Richter did not feel that the extensions to the existing joists in the roof at the residence by nailing additional length to the joists at each individual member was in keeping with the requirements of the Southern Building Code. These joists constituted structural framing for the roof. At all times relevant, the Southern Building Code had application in keeping with a Putnam County Ordinance, No. 73-6. These joist extensions are depicted in Petitioner's Exhibit 5 admitted into evidence which is a photograph taken at the time of the inspection of September 21, 1982. Richter felt that any splicing that would be allowed must be done over a load-bearing wall and as depicted in Petitioner's Exhibit 5, the splicing was not done over a load-bearing wall. At the time this inspection occurred, the project had been dried in but the interior sheetrock had not been placed in the area of the joist extensions or on the walls of the utility area. Having discovered what he perceived to be deficiencies related to framing, Richter left a notice of correction attached to a tree which is shown in Petitioner's Exhibit 4 and is immediately adjacent to the outside door in the utility area. A copy of that notice of correction may be found as part of composite Exhibit 1 admitted into evidence as attachment 3 to that Exhibit. It stated that "corrections required before proceeding or covering this work: change header over door . . . see bldg. inspector regarding spliced ceiling rafters." The notice also indicated a phone number to call when corrections had been effected. The notice did not otherwise state how to solve the problem with the matters of joists.

   
   

3. On the same date as the inspection was made, the Respondent received the correction notice from one of his workers on the Ginn job. In an effort to comply with the instructions set out on the correction notice, he tried to contact the Building Department to discuss the concerns expressed by the inspector. He was unsuccessful in this effort. At the time that Respondent was made aware of the correction notice, the work had not been covered up inside the building related to the placement of sheetrock on walls and ceiling. The work was covered in on the following day per the instruction of Respondent to his employee to place the sheetrock. His remarks to the employee at that time was that the ceiling joists were adequate. The sheetrock was placed prior to any conversation between Respondent and the building department of Putnam County reference concerns about the ceiling joists.

4. On October 5, 1982, Robert H. Boone, Electrical Inspector for Putnam County, went to the Ginn property to ascertain the status of matters related to the correction notice, in view of the fact that Richter had not heard from Respondent about items set forth in the correction notice. The request that Boone check the job site was made by Richter. When Boone arrived at the job site, he discovered that the ceiling joists had been covered in with sheetrock. He then called and spoke with a Mr. Michaels, who was the Building Code Administrator in Putnam County at that time. In keeping with Michaels' instruction a stop work order was posted on the same tree as was discussed in the details related to the correction notice. That stop work order informed the contractor on the job not to proceed with any further work before contacting Putnam County building officials. It also contained an admonition not to remove the stop work order. At that time the work was approximately 98 percent complete.

   
   

5. On October 5, 1982, Respondent became aware of the stop work order and took down that stop work sign from its placement on the tree. No effort at compliance with the stop work order was made, the job having been substantially completed. Respondent attempted to contact the building department regarding the stop work order, but was unsuccessful.

   
   

6. Subsequent to October 5, 1982, Richter, by correspondence dated October 21, 1982, wrote to William J. Tangye, P.E., Executive Director of Southern Building Code Congress International, to obtain an opinion about the acceptability of splicing of joists over other than a load-bearing wall. That correspondence contained a sketch supplied by Respondent related to the joist circumstance. The query to the Southern Building Code official was one of whether splicing was in accordance with requirements of Southern Building Code and good construction practices, related to approval of the project by the building inspector. A copy of this letter may be found as Petitioner's Exhibit 6, admitted into evidence. The letter was answered by Tangye, and a copy of that correspondence may be found as Petitioner's Exhibit 7, admitted into evidence. Tangye did not feel that the construction was in compliance with the Southern Building Code requirements and recommended the submission of additional data to establish the ability of the roofs to provide necessary continuity. The project was later accepted by Putnam County based upon an engineering report vouching for the propriety of Respondent's choice to splice the joists other than over a load-bearing wall.

   
   

7. At the time Respondent determined on September 21, 1982, to cover in the joist members, he felt that the joist was sufficiently constructed to comply with requirements for inspection. Ultimately, his work was accepted by the Putnam County Building Department. Respondent claims that on September 21, 1982, upon examining the correction notice, that the statement to see the building inspector about the spliced ceiling rafters was not a statement of disapproval. That perception on the part of Respondent is not accepted. It is found that the correction notice clearly contemplated that Respondent should contact the Putnam County Building Department before covering the joists by the placement of sheetrock, and Respondent willfully disregarded this indication that the spliced ceiling rafters had not been approved and proceeded to cover that work without the necessary approval from the Putnam County Building Department.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.

   
   

9. Pursuant to Putnam County Ordinance No. 73-6, the Southern Building Code had application to the work conducted by Respondent on the Ginn job in question.

   
   

10. Section 108.2(a), Putnam County Building Code, requires that the building officials in that county inspect at various intervals. Those inspections are more particularly set forth in Section 108.2(c), Putnam County Building Code. One of those intervals pertains to frame inspection. The joists portion of the addition at the Ginn residence comes under the heading of frame inspection. The latter section of the building code further requires the building official to make the inspection upon notification that it is ready for inspection. This notification was given and the inspection was made related to the joists on September 21, 1982. The correction notice was effectively served on the Respondent and it indicated disapproval of the joist construction and cautioned Respondent against proceeding to covering the job. The notice of correction failed to notify the Respondent of the failure of the aspects of the joist construction which failed to comply with the law as contemplated by the latter-cited section of the Putnam County Building Code. Nonetheless, it did establish a disapproval of the joist work and cautioned against covering before approval was granted and also established a vehicle by which discussion could be made on the question of the noncompliance of the joist construction with applicable code provisions. Pursuant to Section 108.2(e), Putnam County Building Code, the structural framework, i.e., the joists, should not have been covered by sheetrock without obtaining the necessary approval of the building official. Notwithstanding Respondent's effort to contact the building officials on or around September 21, 1982, he willfully instructed his employee to cover in the joists without obtaining the necessary approval of the joist work. Respondent thereby violated Section 108.2(e), Putnam County Building Code. In turn, Respondent violated Section 428.129(1)(d), Florida Statutes, and subjected himself to the penalties set forth in Section 428.129(1), Florida Statutes.

    This action of willfully covering in the joists without approval is not a violation of Section 114, Putnam County Building Code, and Section 489.129(1)(d), Florida Statutes, as alleged. Section 114, Putnam County Building Code, as allegedly implemented by Section 489.129(1)(d), Florida Statutes, does not pertain, in that the code reference relates to criminal law actions involving misdemeanor charges which are not cognizable in this forum.

    
    

11. Section 103.2, Putnam County Building Code, requires a contractor to stop work when notified through a stop work order; however, removal of a stop work order without proper authorization, as alleged in the Administrative Complaint, did not constitute a violation of that section and Section 489.129(1)(d), Florida Statutes. The mere choice by the Putnam County Building Department through the printing of its stop work order forms, to admonish persons not to remove the stop work order from the job site does not in itself constitute an offense under the aforementioned code reference and statutory provision.

    
    

12. Argument was considered in the course of the hearing on the question of the applicability of Section 103.5, Putnam County Building Code, related to the ability of the building official through this "catchall" provision to determine the necessity for strength or stability of an existing or proposed

    building or structure, or dealing with the safety or health of the occupants in that building or structure. No notice was given that this provision would be relied upon in the course of the prosecution of the Administrative Complaint, and it is not necessary to look to that provision to decide the outcome of those provisions clearly referred to in the Administrative Complaint. Therefore, no reliance is placed upon Section 103.5, Putnam County Building Code.

    
    

13. Those jurisdictional claims advanced by the Respondent in the course of his proposed order at paragraph 9 and as argued in the course of the final hearing are rejected. Jurisdiction existed to proceed to final hearing, for the entry of a recommended order and for the ensuing final order.

RECOMMENDATION

Based upon a full consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a final order be entered which imposes an administrative find of one thousand dollars ($1,000).

DONE AND ENTERED this 21st day of November 1983 at Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1983.

COPIES FURNISHED:

Douglas H. Shropshire, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Tim Keyser, Esquire Post Office Box 92

Interlachen, Florida 32048

James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2

Jacksonville, Florida 32202

Fred M. Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-001045

Orders for Case No: 83-001045