STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, CONSTRUCTION INDUSTRY ) LICENSING BOARD, )
)
Petitioner, )
)
v. ) CASE NO. 84-1205
)
WILLIAM B. PITTS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above- styled cause on December 7, 1984 in Panama City, Florida.
APPEARANCES
For Petitioner: Edward C. Hill, Jr. Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Charles S. Isler, III, Esquire
Post Office Box 430
Panama City, Florida 32402
By Administrative Complaint dated March 9, 1984 but filed with the Division of Administrative Hearings on April 4, 1984 Petitioner seeks to revoke, suspend or otherwise discipline the license of William B. Pitts as a registered residential contractor in the State of Florida. As grounds therefore, it is alleged: (1) that Respondent failed to qualify a business through which Respondent engaged in contracting as required by Section 489.119(2) and (3), Florida Statutes (1981) thereby violating Section 489.129(1)(j), Florida Statutes (1981) and acted in the capacity of a contractor in a name other than that issued on registration in violation of Section 489.129(1)(g), Florida Statutes (1981); and (2) that Respondent willfully or deliberately disregarded and violated the applicable building codes or laws of the state or municipality or county thereby violating Section 489.129(1)(d), Florida Statutes (1981).
In support of the charges Petitioner presented the testimony of DeWayne Manuel, Lee R. Munroe, James Robert Van Orman and Harold Benjamin, Jr.
Petitioner's Exhibits 1 through 15 were received into evidence.
Respondent William B. Pitts testified on his own behalf and presented the testimony of DeWayne Manual. Respondent's Exhibits 1 and 2 were received into evidence.
There were no pending motions to be considered at the time of the hearing.
At the hearing the Administrative Complaint was amended to correct Paragraph 8(h) to reference Section 1705.8 rather than Section 1706.8.
The parties submitted posthearing proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)(4), Florida Administrative Code (Supp.
1984). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:
At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders.
Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes.
There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983.
Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding.
Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara
W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes.
The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00.
The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982.
DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection.
At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe.
The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate.
The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked."
The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted.
There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to
depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam.
The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered.
No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally.
The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on.
A 32/16, 1/2 inch plywood was used for subflooring.
There was no top plate on dining room wall which was a weight bearing wall.
Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic.
The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips.
In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted.
Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound.
On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised.
Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job.
On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection.
By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters.
Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer.
Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house.
It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house.
Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code.
Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and
(2) an acceptable knowledge of he applicable construction practice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter, of this proceeding.
Section 489.129, Florida Statutes (1981), empowers the Construction Industry Licensing Board to revoke, suspend or otherwise discipline the license of Respondent if he is found to be guilty of any one of those enumerated acts listed in Section 489.129, Florida Statutes (1981).
The Administrative Complaint charges Respondent with two basic violations of Section 489.129, Florida Statutes.
Count I charges Respondent with violations of Sections 489.129(1)(j) and 489.129(1)(g) Florida Statutes, (1981), by doing business under a company name he failed to qualify and doing business in a name other than that which appears on his license.
Count II charges Respondent with a willful or deliberate disregard and violation of the applicable building code in violation of Section 489.129(1)(d), Florida Statutes (1981) which resulted in structural deficiencies in the residence.
Section 489.129(1)(j), Florida Statutes provides that failure in any material respect to comply with the provisions of Chapter 489, Florida Statutes, (1981) shall serve as a ground for discipline by the Board. Section 489.1l9(2)(3)(a), Florida Statutes (1981), provide in relevant part:
(2) If the applicant proposes to engage in contracting as a partnership, corporation, business trust, or other legal entity; the applicant shall apply through a qualifying agent... and the applicant shall furnish evidence of statutory compliance if a fictitious name is used...
(3)(a) The business organization may not engage
in contracting until a qualifying agent is employed.
Section 489.129(1)(g) provides as a further ground for discipline:
Acting in the capacity of a contractor under any certificate or registration issued hereunder except in the name of the certificateholder or registrant as set forth on the issued certificate or registration, or in accordance with the personnel of the certificateholder or registrant as set forth in the application for the certificate or registration, or as later changed as provided in this act.
By doing business in the name of Regency Builders, Inc., or William Pitts, d/b/a Regency Builders, and failing to qualify Regency Builders, Inc. or William Pitts, d/b/a Regency Builders, as required by Section 489.119(2), Florida Statutes (1981), the Respondent has violated Section 489.129(1)(g)(j), Florida Statutes (1981), and is, therefore, guilty of the violation charged in Count I of the Administrative Complaint.
The Respondent's argument that his violation of Section 489.129(1)(g)(j), Florida Statutes (1981) was neither willful nor deliberate and that immediately upon being notified of such violation qualified Regency Builders and complied with the fictitious name statute in accordance with Section 489.119(2),Florida Statutes (1981), may act as a basis for mitigation of the penalty to be imposed but does not excuse the Respondent's failure to timely comply with the law.
Section 489.129(1)(d), Florida Statutes (1981) provides as grounds for discipline:
Willful or deliberate disregard and
violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.
Black's Law Dictionary, Fifth Edition defines "willful" as:
Proceeding from a conscious motion of the will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.
And defines "deliberate" as
To weigh, ponder, discuss, regard upon, consider. To examine and consult in order to form an opinion. To weigh in the mind; to consider the reasons for and against; to consider maturely; reflect upon, as to deliberate a question; to weigh the arguments for and against a proposed course of action.
The applicable building Code which Respondent is alleged to have willfully or deliberately disregarded and violated is the Southern Standard Building Code, 1982, as adopted by the Gulf County Board of County Commissioners.
The Petitioner has failed to meet its burden to show that a violation of: (1) Code Section 1205.3(d) and Appendix D, concerning the attachments of hurricane clips to the center exterior wall; (2) Code Section 1706.1 and 1706.2, concerning the set-in braces and plywood sheathing; (3) Code Sections 1704.2 and 1706.1, concerning inadequate ledger stamps on main floor; (4) Code Section 1706.8; concerning adequate weather board; and (5) Code Section 114 and 1705.2; concerning the number of 2 x 12's used in the main girder or that the 2 x 12's used in all of the girders were butted in the wrong location had occurred.
The Petitioner has shown that a violation of: (1) Code Section 1706.5; concerning the failure to provide a top plate on an interior bearing partition (dining room wall); (2) Code Section 1201; concerning the insufficient piling-to-girder connection; (3) Code Section 1705.3(e), concerning the holes and notches in the wood I-Beams exceeding the allowable limits; and (4) Code Section 1707.8, concerning improper ventilation of rafters and attic; has occurred but has failed to meet its burden to show that the Respondent willfully and deliberately disregarded and violated the above code sections.
Code Section 1706.5 requires a top plate on an interior bearing partition but at the time of construction both Respondent and Manuel considered the dining room wall as an interior non-bearing wall. While Manuel changed his opinion at the hearing, Respondent was still of the opinion that it was an interior non-bearing wall.
While Orman's report concluded that the piling-to- girder connection was a violation of Code Section 1201, Respondent had followed the Plans and the advice of both Manuel and Gaskins in trying to correct the problem.
Code Section 1705.3(c) addresses the allowable limits of holes and notches in said floor joists and not wood I-Beams. But there was credible
testimony that when the plywood web was cut out as it was for the duct work there would be a violation in that that exceeded the allowable limits and affected the structural integrity of the house. However this was done, after discussion with Mrs. Munroe to eliminate the necessity of a 7 foot ceiling, and something Respondent had done before with the approval of other building inspectors.
In regard to the violation of Code Section 1707.8, the Respondent followed the Plans and there was no showing that Respondent was aware that this was a violation of the Code at the time of construction.
The Petitioner has met its burden to show that Respondent willfully and deliberately disregarded and violated Code Section 1201 and 1705.3(d) concerning unblocked wood I-Beams under large compression loads Section 114 concerning the deviation from approved plans by substituting wood I-Beams for 12 x 12 solid floor joists and placing those I-Beams on 24 inch centers without increasing the strength of the subfloor in accordance with Code Section 1705.6, as set out in Table 1705.6A
While the testimony of the Respondent indicates that he may not be the most knowledgeable person in the field of residential construction, his 10-12 years experience in building some 150-200 homes, his expressed knowledge of residential construction practice and his expressed knowledge of the Code leads to the conclusion that Respondent was aware that his actions in regard to the above changes would affect the structural integrity of the house and that failure to obtain prior approval of the Gulf County Building Department was a violation of the Code. It is clear that Respondent's actions were voluntary and intentional without any justifiable reason.
Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the
$1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license.
Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
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 2nd day of July, 1985.
COPIES FURNISHED:
Edward C. Hill, Jr. Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Charles S. Isler, III, Esquire Post Office Box 430
Panama City, Florida 32402
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee Florida 32301
Salvatore A. Carpino, General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Mr. James Linnan Executive Director
Department of Professional Regulation
Construction Industry Licensing Board Post Office Box 2
Jacksonville Florida 32202
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
CASE NO. 0032133
vs. DOAH CASE NO. 84-1205
WILLIAM B. PITTS,
License No. RR 0033727,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Construction Industry Licensing Board pursuant to Section 120.57(1)(b)9., Florida Statutes, on January 9, 1986, in Jacksonville, Florida for consideration of the Recommended Order (a copy of which is attached hereto and Incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. William
Pitts, Case No. 84-1205. The petitioner was represented by Douglas A. Shropshire. The Respondent was present.
Upon consideration of the hearing officer's Recommended Order, exceptions filed and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
FINDINGS OF FACT
The hearing officer's findings of fact are hereby approved and adopted.
There is competent, substantial evidence to support the hearing officer's findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 489, Florida Statutes.
The hearing officer's conclusions of law, are hereby approved and adopted in toto.
The penalty recommended by the Hearing Officer is hereby rejected. The Respondent stipulates to the penalty provided herein.
There is competent substantial evidence to support the Board's findings and conclusions.
WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent shall pay an administrative fine in the amount of $2,000.00. The fine shall be paid by the Respondent to the Florida Construction Industry Licensing Board as follows: $1,000.00 by March 15, 1986, another $500.00 by March 15, 1987, and the final $500.00 by March 15, 1988.
To ensure payment of the fine in compliance with this stipulation, the Respondent further stipulates that all his licensure to practice contracting shall be suspended with the imposition of the suspension being stayed. If Respondent misses any of the above fine payment deadlines, the suspension will go into effect. If the licensee does not pay the above ordered fine in accord with the above schedule, then immediately upon the expiration of the stay he shall mail his evidence of licensure to the Construction Industry Licensing Board Office, P.O. Box 2, Jacksonville, Florida 32202, or shall surrender it to the Investigator of the Department of Professional Regulation.
Respondent shall be on probation for a period of five years. During said probation, Respondent shall appear before the Board every sixth month, to stand for questions by the Board and Department concerning his contracting activities.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one (1) copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one (1) copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the filing of this order.
This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 12th day of February, 1986.
John Fix, Chairman
Construction Industry Licensing Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to:
William B. Pitts Charles S. Isler, III, Esquire
Route A, Box 232 P.O. Box 430 Youngstown, Fla. 32466 Panama City, Fla. 32402
and by hand delivery/United States mail to the Board Clerk, Department of Professional Regulation and its Counsel, 130 North Monroe Street, Tallahassee, Florida 32301, on or before 5:00 p.m., this 19th day of February, 1986.
James B. Powell
| Issue Date | Proceedings |
|---|---|
| Jul. 02, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 12, 1986 | Agency Final Order | |
| Jul. 02, 1985 | Recommended Order | Residential contractor's license should be suspended for one year, and the suspension conditionally stayed, for violation of applicable building codes. |
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