vs. ) CASE NO. 96-3418
Respondent. )
A hearing was held in this case by telephone conference call on November 26, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
For Petitioner: William J. Owens
The issue for consideration in this case is whether Respondent's certification as an aluminum contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
By Administrative Complaint dated May 14, 1996, William J. Owens, Executive Director of the Pinellas County Construction Licensing Board, charged Respondent with failing to obtain a timely inspection and to remedy noted code defects on work performed by a company operating under his license, in violation of Section 105.6, Standard Building Code, 1994, and Section 24(2)(d),(j),(m), and (n), Chapter 75-489, Laws of Florida. Respondent requested formal hearing on the allegations and this hearing followed.
At the hearing, Petitioner presented the testimony of Harvey W. Heimann, homeowner of the property in question; David G. Livesay, Chief Building Inspector for Pinellas County; and Steven K. Howe, an aluminum contractor operating in Pinellas County. Petitioner also introduced Petitioner's Exhibits
One through Eight. Respondent did not testify nor did he introduce any exhibits, but presented the testimony of Willard Hill, his father.
No transcript was furnished and neither party submitted Proposed Findings of Fact.
At all times pertinent to the matter in issue herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of construction industry professionals and contractors operating in Pinellas County, Florida. Respondent was certified as an aluminum contractor and was issued license C-3664. He was, at the time in issue, the qualifying contractor of record for Phoenix Aluminum, Inc. Phoenix Aluminum, Inc. and Ace Aluminum, Inc. are parts of the same entity and are operated by the same individuals.
On December 1, 1993, Harvey W. Heimann, the owner of a town house located at 1802 Largo Vista Boulevard, in Largo, Florida, orally agreed with Willard Hill, the reputed representative of Ace Aluminum, to have an aluminum enclosure placed on the rear of his home. Mr. Hill initially had solicited the Heimanns during construction of the home, indicating Ace had done other work in the area. When the parties agreed on a price Mr. Hill indicated that construction would start as soon as the required permit could be obtained, and the job would be completed as soon as possible. No time period for construction was specified.
When the job was completed, the Heimanns were not satisfied, feeling the workmanship was poor and the job was esthetically unsatisfactory. They complained numerous times either to Willard Hill or to a Mr. Smart, both reputed to be employees of the company, who promised to come and look the work over. No satisfactory corrections were made by the contractor, however. Nonetheless, an invoice was issued on January 21, 1994 in the amount of $1,720.00, and the Heimanns paid Ace Aluminum the sum of $1,360.00 by check on April 23, 1994, after some corrective work was accomplished. This check was subsequently endorsed and paid to Ace.
In November 1995 a strong wind hit the Largo area during which some of the roof panels on the Heimanns' aluminum room installed by Ace/Phoenix blew off. Mrs. Heimann subsequently spoke by telephone with someone at the company office but got no satisfaction, and in February, contacted another aluminum contractor, Mr. Howe, to give them an estimate to repair the damage.
When Mr. Howe found out that the installation was so recent, he refused to do any corrective work on it until he determined if the work had been both permitted and finally inspected. He found that a permit had been pulled for the installation. He then advised the owners to contact the original installer.
The Heimanns wanted nothing more to do with Ace/Phoenix and on April 5, 1996, Mr. Howe pulled a permit to do the necessary work.
The work, which also required the replacement of the screws affixing the base aluminum to the concrete with larger screws and a deeper insertion into the concrete, was completed by April 10, 1996, after which Howe arranged for the job to be properly inspected. The work Howe did passed inspection.
According to David Livesay, the chief building inspector for Pinellas County, a permit for the project in issue was pulled by Willard Hill on December
9, 1993. Building Department records also show that on January 24, 1994, a frame inspection was done of the project which resulted in the issuance of a yellow tag, denoting a failure, because of inadequate base anchoring. The actual inspection form reads, "Called in for 'building inspection' YTAG: 9:50AM Need verification of base fastening into slab, Recall J K." J K appears to be the initials of the inspector who did the inspection. On January 25, 1994, a second inspection was done and again the project was rejected because of the base fasteners. That inspection report reads, "9:30 AM Recheck same as previous insp."
Both a yellow tag and a red tag mean that a code violation exists. The difference between the two is that while a red tag requires payment of a fee, a yellow tag does not. Notwithstanding the deficiency found in the first inspection was not corrected by Respondent or his company, no further action was taken until March 21, 1996, when Mr. Livesay filed a citation against the Respondent for "construction not to code" based on the work done at the subject address. A court date was set for April 5, 1996, but on March 23, 1996, Respondent appeared in court, pleaded guilty to the charge and paid a fine of
$155.00. According to Mr. Livesay, normal procedure is for the contractor who has completed work which requires inspection to call in to have the inspection made. There is no indication here that this was not done. The problem here lies in the failure to make the necessary corrections disclosed by the inspection.
Respondent, Bret Hill, admits that he is the individual whose license/certification was used to qualify Phoenix Aluminum, Inc., the company which did the work in issue. However, he denies having ever met or dealt with the Heimanns and this appears to be the case. Respondent's father, Willard Hill, indicates it is he who, as salesman for Ace/Phoenix, dealt with the Heimanns and pulled the permit for the required construction. He is also the individual who did the installation work and who called for the inspection when the work was completed. When the first inspection resulted in the issuance of a yellow tag, he called, the next day, for a second inspection. Mr. W. Hill insists that the first yellow tag resulted from the inspector's inability to determine the size of the lag bolt used to fasten the aluminum to the concrete base. He also asserts that the day after the first inspection he brought the appropriate bolts to the site for the inspector's review, but the inspector did not see them and issued a second yellow tag. Nonetheless, Hill asserts, the bolts used were proper for the job and the room built according to the specifications submitted to the building department by Phoenix.
The prime contractor for the housing project was Geiger Enterprises, and it was Geiger who hired Phoenix to do the screening work. Both Ace Aluminum and Phoenix Aluminum were, Hill indicates, owned by a Mr. Brabham, with Bret Hill serving only as the qualifying licensee. Taking into account all the above, the ultimate finding is that the work was done by Phoenix Aluminum, Inc., based on a permit issued to Phoenix; it was found to be inadequate on an inspection called for by Phoenix, and the identified deficiency was not shown to be corrected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In its Administrative Complaint, the Petitioner charges Respondent with failing to obtain a final inspection on the work in issue and failing to remedy noted code defects, all cited as violations of Section 24(2)(d)(j)(m) and (n), Chapter 75-489, Laws of Florida. The cited provisions, listed as causes for disciplinary action read:
(d) Willfully or deliberately disregarding and violating the applicable building codes or laws of the state, this board, or of any municipality or county of this state;
(j) Failing in any material respect to comply with the provisions of this part.
Being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting.
Proceeding on any job without obtaining applicable local building departments and inspections.
The burden of proof in this matter rests with the Petitioner which must establish Respondent's guilt of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Heimanns' dissatisfaction with the quality of the work done by the firm operating under Respondent's license serves as no more than the basis for initiation of the inquiry which led to the filing of this Complaint. The Administrative Complaint identifies the Respondent's failure to remedy inspection defects and his failure to obtain a final inspection, not the quality of the work done, as evidence of gross negligence, incompetency, or misconduct in the practice of contracting.
Gross negligence is defined in Black's Law Dictionary as:
... the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is materially more want of care than constitutes simple inadvertence. ... [It] consists of conscious and voluntary act or omission which is likely to result in grave injury when in fact of clear and present danger of which [the] alleged tort-feasor is aware.
The evidence in this case clearly establishes that Respondent's sole participation in the misconduct alleged is in his use of his certification to qualify the company actually doing the work. There is no indication that he solicited the work in issue or that he had anything to do with its accomplishment. Nonetheless, as the qualifying licensee, if misconduct was committed, he bears responsibility for it. Section 489.119, Florida Statutes.
The evidence further indicates that the work was done by Willard Hill, Respondent's father. The evidence also indicates that Willard Hill arranged for the required inspection when the work was done, but that the inspector was unable to determine whether the work was done properly. Petitioner argued that the work was done improperly. Respondent contends the evidence of record shows that the inspector could not determine how the fastening was accomplished rather
than that he found it to be inappropriate. A follow-up inspection was done the day after the first inspection and the second write-up issued. Willard Hill contends the second failure was due to the inspector's inability to find the bolts he, Hill, left out for him. However, it is the contractor's responsibility to be present to demonstrate to the satisfaction of the inspector that the fastening in issue was done properly.
Taken as a whole, the actions of the contractor do not constitute gross negligence or incompetence. However, the failure to insure that the inspector had access to the information needed to perform a proper inspection of the construction done clearly constitutes misconduct for which Respondent, as qualifying agent, is responsible.
In its letter to the Judge after the hearing, with which Petitioner forwarded the exhibits introduced by it at hearing, a copy of which also was sent to the Respondent, Petitioner suggested an appropriate penalty, should Respondent be found subject to discipline, would be an administrative fine of
$750.00, and a suspension of his license conditioned upon reimbursement to the Heimanns in the amount of $500.00 or the amount necessary to repair the property to the point where the noted code defects are remedied. Petitioner also submitted its published guidelines for disciplinary action. This document indicates that the fine for a minor first infraction should be $300.00, and that for a major first infraction, $750.00. For a repeat minor infraction, the fine should be $500.00. Apparently, from the penalty recommended, the Board considers Respondent's infraction to be major.
The code failure in issue appears to relate only to the attachment of the framing to the concrete slab. The cosmetic defects complained of by the Heimanns and, for that matter, the replacement of panels blown off by the wind storm, have not been shown to relate to the cited code defect. This would, therefore, seem to be a minor infraction. In light of the above, and considering that Respondent has already paid a criminal fine of $155.00 for construction not to code, an additional administrative fine of $250.00 appears appropriate. Suspension of his license is not appropriate, in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order finding Respondent, Bret Hill, guilty of misconduct in the practice of contracting, and imposing an administrative fine of $250.00.
DONE and ENTERED this 13th day of December, 1996, in Tallahassee, Florida.
ARNOLD H. POLLOCK
William J. Owens Executive Director
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
