STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In re JERRY COLUMBUS, )

)

Respondent. ) CASE NO. 92-5621EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on July 22 and 23, 1993, in Daytona Beach, Florida.

APPEARANCES

The Advocate Virlindia Doss, Esquire

for the Advocate for the Commission on Ethics Commission Office of the Attorney General

on Ethics: The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Frederick C. Morello, Esquire

Post Office Box 1007

Daytona Beach, Florida 32115 STATEMENT OF THE ISSUES

On July 22, 1992, the State of Florida Commission on Ethics entered its order finding probable cause that Respondent, Jerry Columbus, committed three violations of Section 112.313(6), F.S., as chief building official for the City of Port Orange, Florida by: (a) requiring changes to a house being built across the street from property which he owned; (b) building a swimming pool on his property which did not meet the proper building codes and by requiring the employee reviewing the plans for the pool to approve them; and (c) using city employees and city vehicles to pick up building materials and supplies and to perform work on a house that Respondent was building.

The issue is whether those violations occurred, and if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

On September 11, 1992 the executive director of the Commission on Ethics (EC) forwarded the case to the Division of Administrative Hearings (DOAH) for conduct of a public hearing and for a recommended order.

After consultation with the parties, the hearing was scheduled, but was continued twice, for good cause, at the parties' request.

At hearing, the Advocate presented testimony of the following: Todd Herget, Gerald Tonguette, Frank Surmaczewicz, Jim Scott, Steve Levine, and Domenic Nicotera. Respondent testified in his own behalf, and presented the testimony of Stanley Watts and Joseph McGowen.

Advocate's Exhibits #1-28 were received in evidence, without objection, including depositions of Richard Lee and William Groom. Respondent's exhibits #1-29 were received in evidence, including, without objection, depositions of Phil Clark and George Scott.

The transcript of proceedings was filed on August 10, 1993, and on September 10, 1993 the parties filed written closing arguments.

FINDINGS OF FACT

1. Respondent, Jerry Columbus (Columbus), has been and was at the time in question the chief building official for the City of Port Orange, Florida. He was appointed to that position in March 1989, after having served in a similar capacity in other cities in Connecticut and Florida for approximately ten years. As chief building official, Columbus supervises the code enforcement officers, plans examiner, inspectors, the occupational licensing section and the front counter clerical staff.

   
   

   The House in Spruce Creek Run

   
   

2. Richard Lee and Jim Scott were builder/developers in Volusia County and surrounding areas. Together they formed a corporation to develop a small subdivision in the City of Port Orange, Spruce Creek Run.

   
   

3. The subdivision had approximately fourteen lots. Sometime prior to December 1989, Richard Lee sold four lots to Jerry Columbus, who planned to build his own home and homes for his father and brother. Lee told Columbus that because of the cost of the lots and their size, he expected nice, upscale homes in the subdivision, homes that would be larger than 1800 square feet.

   
   

4. Jim Scott sold a lot on the same street to Stanley Watts, and on November 10. 1989 he contracted to build a house for Watts on the lot for

   $85,000. Watts was an anxious owner and called Scott frequently to find out the progress of commencing construction.

   
   

5. The testimony of various witnesses differs in the details, but the most credible version of the events is this: Colombus saw the plans for the Watts house in the office of Domenic Nicotera, the City of Port Orange plans examiner. Colombus did not like the front view of the house and the fact that it was less than 1800 square feet. He called the house a little "shit box" and told Nicotera to hold off until he could talk to Jim Scott. Colombus approached Richard Lee and told him "as a landowner in the subdivision" (#A-27,p.16) that Jim was building a house down on the corner that did not seem nice enough or large enough for the neighborhood. Colombus said he was disappointed and that Lee should talk to Scott.

   
   

6. Scott, in the meantime, had applied for the building permit for the Watts house on December 13, 1989. He had trouble getting plans approved and told Watts so. He had what he considered were insignificant problems with electrical outlet locations and with headers. When he talked to Nicotera about why his plans were being held up for items that generally were fixed with a note on the plans or verbal agreement to make changes on site, Nicotera told him that Columbus "had a little personal thing with the home". (T-77).

   
   

7. Scott talked to Columbus and said that he could not make the house any larger because he already had a contract. Columbus suggested that he put some

   architectural feature on the facade and offered to make some drawings. Scott said that he would discuss this with Watts.

   
   

8. Watts then called Columbus and introduced himself as a neighbor. Watts characterizes himself as an aggressive person and he took great pains to make the conversation amiable. From his builder, Scott, and from the conversation with Columbus, Watts gathered that Columbus was the cause of the hold-up on his house. Columbus suggested that Watts take a look at some drawings and volunteered to send them to Watts.

   
   

9. Thereafter Columbus drew some sketches of front elevation changes, changes in the facade to give the design a little more detail. He sent the drawings to Watts on December 19th; Watts liked them and gave them to Scott. From then on, Watts felt progress was appropriate and the house was constructed with the design change suggested by Columbus. The change cost Scott approximately $4,000, as Watts declined his request to pay for the increase.

   
   

10. Columbus denies holding up the building permit and there is competent evidence that it was issued on December 19 or shortly thereafter. He admits being upset about the design and size of the Watts' house and he admits saying disparaging things about it, including "shit box" or words to that effect. He, Columbus, pointed out the deficiencies in the plans to Nicotera, deficiencies that he felt Nicotera should have identified relating to the lack of a load balance diagram for electricals, non-labeling of headers and placement of electrical outlets.

    
    

11. Even if the building permit was not unduly delayed, Columbus' insinuation of his personal interest in the approval process was inconsistent with the proper performance of his public duties. The change in the Watts house facade had nothing to do with code compliance and was occasioned by Columbus' involvement for his own benefit.

    
    

    The Pool

    
    

12. Columbus decided to build his house elsewhere in the City of Port Orange and eventually sold his lots in Spruce Creek Run. To avoid any appearance of impropriety, arrangements were made with the South Daytona building department for inspections and permit approval for the Columbus house.

    
    

13. South Daytona has adopted the Southern Standard Building Code (SSBC), and performed its inspections according to that code. The relevant codes in effect in the City of Port Orange were the CABO One and Two Family Dwelling Code and the Standard for Residential Swimming Pools promulgated by the National Spa and Pool Institute. The SSBC was in effect in the City of Port Orange for commercial and other structures not covered by CABO.

    
    

14. Columbus' swimming pool at his new home became a source of controversy during the construction and inspections, as one corner of the pool is located within sixteen inches of his house. In the City of Port Orange there used to be a requirement of a five-foot setback. The requirement was repealed well before Columbus began construction and the repeal was part of a general code revisions process during which Columbus worked with the local homebuilders and trade organizations. The code revisions were passed by the city council. The five- foot setback requirement, therefore, did not apply to Columbus' pool.

    
    

15. Neither did the SSBC apply to the pool. The inspectors and building official from South Daytona had concerns about whether the placement of the pool

    violated the SSBC. Specifically, they questioned whether the pool met this section of the SSBC:

    
    

    1301.1.3 Excavations for any purpose shall not extend within 1 ft of the angle of repose or natural slope of the soil under any footing or foundation, unless such footing or foundation is first properly underpinned or protected against settlement.

    (Exhibit #A-16 emphasis added.)

    
    

16. In the view of the South Daytona officials, the pool needed to be built according to sealed engineered plans if it was going to be so close to the house. They were told that there were sealed plans, and they approved the construction. There is no evidence that Columbus himself talked to these persons or influenced them to approve his plans or construction.

    
    

17. Moreover, the pool and its placement did not violate Section 1301.1.3 of the SSBC or any other relevant code.

    
    

18. "Angle of repose" refers to the angle at which fill material falls if left unsupported; it is an angle relative to the horizon. It is customary for building officials to assume a forty-five degree angle of repose when the given material's angle is not known. As you dig near an existing structure you see dirt falling out. The code is intended to protect the support of the existing structure. As stated in the code cited above, and as applied in practice, the angle is measured from the bearing surface under the footing, not from the top of the footing. Columbus' pool, even though sixteen inches from the house, was not, at that proximity to the house, dug below the footing.

    
    

19. Whether Columbus' pool was constructed according to sealed plans is irrelevant. In fact, it was; although the sealed plans produced at hearing by Columbus are, on their face, "typical residential pool details", and do not address the excavation issue nor placement near an existing structure. (Respondent's Exhibit #25)

    
    

    Use of City Employees

    
    

20. Steve Levine and Joseph McGowen are now, and were during the relevant period, building inspectors for the City of Port Orange. Columbus paid Levine and McGowen $10 an hour, each, to help him put in the plumbing in his house. They did not provide this labor during their city work day. They agreed to do the work because they knew that South Daytona would be performing the inspections, not themselves.

    
    

21. Before hiring Levine and McGowen, Columbus spoke to his supervisor, Bill Meyers, the director of community development. Meyers did not tell him it was wrong, and Columbus knew of no city policy prohibiting such moonlight activities by city employees.

    
    

22. On one occasion Steve Levine admits he picked up parts for the Columbus job on his lunch hour in the city vehicle. He was not told by Columbus to do this. He knew he was not supposed to take the city vehicle out of the city limits and the parts store was in Daytona Beach.

23. The after hours work that Levine and McGowen performed for Columbus was similar to work they performed for other customers. There is no evidence that Columbus used his position to get these employees to work on his house.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and Florida Commission on Ethics rule 34-5.010, FAC.

    
    

25. Section 112.313(6), F.S., provides:

    
    

    (6) Misuse of Public Position - No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

    
    

    "Corruptly" is defined in Section 112.312(9), F.S.:

    
    

    (9) "Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.

    
    

26. As chief building official, Jerry Columbus is a "public officer" or "employee" as defined in Sections 112.313(1), F.S. and 112.312(2), F.S.

    
    

27. By a preponderance of the evidence, the Advocate proved that Columbus misused his position to inveigle Watts and Scott into upgrading the Watts home to enhance the appearance of Columbus' street or neighborhood. This constitutes a violation of Section 112.313(6), F.S.

    
    

28. The remaining two violations were not proven. The Columbus pool met the building codes, both applicable and inapplicable codes, and it was properly approved. Columbus did not interfere in that approval process. Nor did he use his position to obtain the labor of his employees on his own house. While Levine should not have used the city vehicle to pick up Columbus' supplies, he does not contend that Columbus requested this or even knew of his peccadillo.

    
    

29. The advocate suggests a civil penalty in the amount of $1500 for each violation. That penalty is within the range of penalties described in Section 112.317, F.S. and is adopted here.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED that: a Final Order be entered finding that Jerry Columbus violated Section 112.313(6), F.S. by requiring changes to the Watts house, that a fine of $1500 be recommended by the Commission on Ethics, and that the remaining allegations of violations of Section 112.313(6), F.S. be dismissed.

DONE AND RECOMMENDED this 29th day of December, 1993, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1993.

COPIES FURNISHED:

Virlindia Doss, Esquire Advocate for the Commission

on Ethics

Office of the Attorney General The Capitol, PL-01

Tallahassee, Florida 32399-1050

Frederick C. Morello, Esquire Post Office Box 1007

Daytona Beach, Florida 32115

Bonnie Williams Executive Director Ethics Commission

2822 Remington Green Circle Suite 101

Tallahassee, Florida 32317-5709

Phil Claypool, Esquire Ethics Commission

2822 Remington Green Circle Suite 101

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-005621EC

Orders for Case No: 92-005621EC