STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 84-3100

)

ERIC NEALE ANDERSON, )

)

Respondent, )

)

RECOMMENDED ORDER

This cause came on for hearing in Lake City, Florida on February 14, 1985 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances were entered as follows:

Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Respondent: Eric Neale Anderson, pro se

Route 9, Post Office Box 322 Lake City, Florida 32085

At the Hearing, Petitioner introduced ten (10) exhibits and Respondent introduced three (3) exhibits. Petitioner's request for official recognition of Section 20.30, Chapters 455 and 489, F. S., pertinent portions of the Standard Building Code, and Columbia County Ordinance 78-1 was granted. Petitioner had also previously filed a request for admissions to which there was no reply from Respondent, although he acknowledges receiving the request for admissions. By Order dated December 19, 1984, all matters contained in Petitioner's request for admissions were deemed admitted. Four (4) witnesses testified on behalf of the Petitioner, and the Respondent testified on his own behalf. A transcript of the hearing was filed on February 20, 1985.

FINDINGS OF FACT

1. Respondent, Eric Neale Anderson, has been a registered building contractor in Florida, at all times relevant

   to this proceeding with license number RB 0016806.

   
   

2. In December, 1983 Respondent entered into a contract with Mrs. Linda Fatzinger, a homeowner in Columbia County, for replacement of a roof. The contract price for the reroofing was $2820. After Respondent completed the reroofing, leaks developed in the new roof which Respondent attempted to fix.

   Respondent did not correct the leaking roof. Mrs. Fatzinger contracted with another building contractor who did repair her roof and eliminate the leaks for an additional charge of approximately $900.

   
   

3. Mrs. Fatzinger's roof was inspected by representatives of the Columbia County Building Department who found violations of portions of the Standard Building Code, as adopted by Columbia County Ordinance 78-1, in the work performed by Respondent. Specifically, Respondent installed shingles on a portion of Mrs. Fatzinger's roof that had a pitch of only 1/2 inch per foot instead of the two inches per foot which is required by Section R-803 of the Standard Building Code when shingles are used. This means that the rise of the roof was only 1/2 inch per running foot which is virtually a flat roof. The manufacturer's packaging of the shingles used by Respondent clearly states that the shingles are for application to roof decks having inclines of not less than two (2) inches per foot.

   
   

4. Respondent did not obtain a building permit for this reroofing job, although one was required by Columbia County Ordinance 78-1, and he admits knowing that one was required.

   
   

5. In the installation of shingles on Mrs. Fatzinger's roof, it has been deemed admitted that Respondent used an insufficient number of nails. Although four nails per shingle were recommended by the manufacturer and are required by Section R-803, Standard Building Code, for the shingles that were used, in some areas Respondent used only two or three staples per shingle, and did not use any nails.

   
   

6. In making the above findings of fact, Petitioner's proposed findings of fact numbered one through four are approved and proposed finding number five is rejected as irrelevant, unnecessary and not based on competent substantial evidence.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), F.S.

   
   

8. Respondent is charged with violating Section 489.129(1)(d), F.S., which authorizes Petitioner to take license disciplinary action when a licensee if found guilty of:

   
   

   Willful or deliberate disregard and violation of the applicable building codes or laws of the state or of any municipalities or counties thereof.

   
   

   The question is whether Respondent willfully or deliberately disregarded relevant portions of the Standard Building Code, as adopted by Columbia County Ordinance 78-1.

   
   

9. There has been no judicial determination of the terms "willful" and "deliberate" as they appear in Chapter 489, F.S. In Webster's New Collegiate Dictionary, the term "willful" is defined as "obstinately and often perversely self willed; done deliberately." The term "deliberate" is defined as "resulting from careful and thorough consideration." "Willful" is applied to violations which are intentional, knowing or voluntary as distinguished from accidental, and is also used to characterize conduct marked by a careless disregard of

   whether ones has the right to act in a certain way. Chandler v. Kendrick, 146 So. 551 (Fla. 1933). In licensing cases, federal courts have construed the terms "willful" and "deliberate" to require that an agency seeking to discipline a licensee prove that the licensee knew his legal obligation and purposely disregarded or was plainly indifferent to such requirements. Shyda v. Director, Bureau of Alcohol, Tobacco and Firearms, 448 F.Supp, 409, 415 (M.D.P.A. 1977).

   Accord, Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir. 1979); Perri v.

   Department of Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981).

   
   

10. It is clear from the evidence that Respondent's actions were not accidental, but rather were intentional and knowing. He knowingly failed to obtain a building permit, admits to disregarding manufacturer's specifications by using an insufficient number of staples in the installation of shingles, and failed to follow Standard Building Code provisions concerning the minimum slope for a shingle roof although such provisions were also clearly printed on the shingle packaging. This failure, disregard, and plain indifference represents a deliberate and willful violation of Columbia County Ordinance 78 1, and relevant portions of the Standard Building Code. Thus, Respondent has violated Section 489.129(1)(d), F.S.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license be suspended for a period of three (3) months.

DONE and ORDERED this 13th day of March, 1985 at Tallahassee, Florida.

DONALD D. CONN, 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 13th day of March, 1985.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Eric N. Anderson

Route 9, Post Office Box 322 Lake City, Florida 32085

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003100

Orders for Case No: 84-003100