STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION ) LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-2477

)

PETER BATTLE, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 11, 1997, a formal administrative hearing was held by telephone conference call between Largo and Tallahassee, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William J. Owens

Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

For Respondent: Peter Battle, pro se

1090 Sixty-Fourth Avenue, South St. Petersburg, Florida 33705

STATEMENT OF THE ISSUE

Whether the Respondent, Peter Battle, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against his roofing contractor's license.

PRELIMINARY STATEMENT

On or about May 6, 1997, Petitioner, Pinellas County Construction Licensing Board (Petitioner), filed an Administrative Complaint against Peter Battle (Respondent), alleging in two counts that he violated various provisions of Chapter 75-489, Laws of Florida, as amended. Specifically, Count One alleges that Respondent failed to obtain a satisfactory final inspection on a roofing project as required by Section 105, Standard Building Code, 1994 Edition, as amended. Count Two alleges that Respondent committed fraud or deceit or gross negligence, incompetence, or misconduct in the practice of contracting. Petitioner alleges that these offenses constitute violations of Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24(2)(d), (j), (m), and (n), Laws of Florida, as amended.

The Respondent denied the allegations contained in the Administrative Complaint and requested a formal hearing. By letter dated May 19, 1997, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing.

At hearing, Petitioner presented the testimony of one witness, William Keeley, Building Code Administrator for the Town of Redington Beach. Petitioner offered and had five exhibits admitted into evidence. Respondent testified on his own behalf and had one exhibit entered into evidence. The record remained open until September 16, 1997, for late-filed exhibits. However, no such exhibits were filed by either party.

The hearing was recorded but not transcribed. Neither party submitted proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent, Peter Battle, was a certified roofing contractor having been issued License No. C-1959 and was the certified contractor for Battle Roofing Company.

2. On September 18, 1996, the Town of Redington Beach approved and issued a roofing permit to Battle Roofing Co. to replace the roof of a house located a 16215 Second Street, East, Redington Beach, Florida.

3. In Redington Beach, inspections of construction sites are conducted only in the following instances: (1) upon request by the property owner or the contractor working at the site; (2) to determine if a proper permit has been secured for the work being performed; or (3) when apparent violations of the Standard Building Code can be viewed by local code enforcement personnel from the street or right-of-way adjacent to the site where work is being performed.

4. On October 16, 1996, while driving on the street adjacent to the site of the roofing project, William Keeley, Building Code Administrator for the Town of Redington Beach, observed the roofing system being installed by Respondent. At that time, it was apparent to Mr. Keeley that the roof being installed by Respondent was a low-sloped roof. Moreover, it appeared to Mr. Keeley that the low-sloped roof being installed

   by Respondent had single-ply base sheets. Because the Standard Building Code, required double-ply base sheets for a low sloped roof, Mr. Keeley went on the property to inspect the roofing project. As a result of the inspection, Mr. Keeley determined two violations of the Standard Building Code; detailed the code violations on a written rejection notice; and posted the rejection notice at the site.

5. The rejection notice indicated that Respondent (1) failed to use two-ply base sheets as required by Section 1509.4.21 of the Standard Building Code and (2) failed to use six nails or fasteners per shingle as required by Section 1509.3.5 of the Standard Building Code.

6. On October 16, 1996, Mr. Keeley met and discussed with Respondent the violations of the Standard Building Code that Mr. Keeley's inspection had revealed. Furthermore, Mr. Keeley informed Respondent that the deficiencies must be corrected and brought into compliance with the applicable provisions of the Standard Building Code.

7. Another inspection of the roof of the Redington Beach house was performed by Mr. Keeley on March 4, 1997. At that time, it was determined that the violations cited on the rejection notice issued on October 16, 1997, had not yet been corrected.

8. Moreover, the March 4, 1997, inspection of the subject roofing project revealed several other deficiencies and violations of the Standard Building Code. These deficiencies

   included the following: (1) The rakes were not nailed and cemented as required by Section 1509.4.2.3 of the Standard Building Code; (2) The valley lining was not cemented and was only 14 inches wide in violation of Section 1509.14.3.2 of the Standard Building Code; (3) One shingle on the north and south rakes was short and tabs were missing; (4) The lap at the tie into the porch roof was not cemented as required due to the house being located in a high wind area; and (5) The area on south side of house where soffit and fascia meet was not sealed and secured.

9. On or about March 7, 1997, Mr. Keeley filed a formal complaint with the Pinellas County Construction Licensing Board against Respondent. As a basis therefore, Mr. Keeley cited the deficiencies noted in paragraphs 5 and 8 above.

10. A third inspection of the roofing project was conducted by Mr. Keeley on August 1, 1997. This inspection revealed that only one of the previously noted deficiencies was corrected to comply with the Standard Building Code. The corrected deficiency involved the lap at the tie into the porch roof which previously had not been cemented. Other deficient areas noted in the October 1996 and March 1997 inspections were still in noncompliance with the Standard Building Code at the August 1997 inspection.

11. There is no evidence that Respondent's license as a roofing contractor has been subjected to disciplinary action on any prior occasion by Petitioner.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

13. The Pinellas County Construction Licensing Board is statutorily empowered to discipline the license of roofing contractors based upon any of the grounds enumerated in Chapter 75-489, Laws of Florida, as amended by Chapter 89-504, Section 24, Laws of Florida.

14. Respondent, a licensed roofing contractor, is charged with the responsibility of complying with all applicable building codes and regulations adopted by Petitioner. Likewise, Respondent is subject to the disciplinary guidelines of Chapter 89-504, Section 24, Laws of Florida.

15. Petitioner has adopted the Standard Building Code pursuant to Chapter 89-504, Section 24, Laws of Florida.

16. In license discipline cases such as this, the Petitioner must prove the alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. The allegations in this case are that Respondent is guilty of violating the following provisions of Chapter 89-504, Section 24 (2), Laws of Florida:

    (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 this part.

    
    

    * * *

    
    

    1. Being found guilty of fraud or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting.

       
       

    2. Proceeding on any job without obtaining applicable local building departments and inspections.

    
    

18. Petitioner established by clear and convincing evidence the allegations contained in Count One of the Administrative Complaint. Count One alleges that, after being issued a rejection notice, Respondent failed to correct code violations and, therefore, was unable to obtain a satisfactory final inspection. It was established that a rejection notice, citing two code violations, was issued to Respondent and that Respondent was subsequently notified of other code violations. Petitioner presented clear and convincing evidence that the roofing project performed by Respondent failed to comply with requirements of the Standard Building Code. Likewise, Petitioner met its burden in establishing that despite notification of numerous code violations, all but one remained uncorrected by Respondent. Consequently, Respondent was unable to obtain a satisfactory final inspection as required by Section 105, Standard Building Code, 1994 edition, as amended.

19. With regard to Count Two, Petitioner has met its burden. Count Two alleges that Respondent committed fraud or deceit or gross negligence, incompetence, or misconduct in the

    practice of contracting. The evidence adduced at hearing

    established that Respondent failed to perform the subject roofing project in accordance with the Standard Building Code, even after he was notified of the deficiencies. Such failure constitutes incompetence within the meaning of Chapter 89-504, Section 24 (2)(m), Laws of Florida

20. Petitioner is authorized to suspend certificate holders from all operations as contractors, suspend or revoke certificates, impose administrative fines not to exceed $1000, require restitution, and impose reasonable investigative and legal costs. Chapter 89-504, Section 24, Laws of Florida, and Chapter 93-387, Section 24, Laws of Florida.

RECOMMENDATION

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 that finds that:

1. Respondent, Peter Battle, committed the offense alleged in Count One of the Administrative Complaint, violated Chapter 89-504, Section 24(2)(d) and (j), Laws of Florida, and which imposes an administrative fine of $300 for this violation.

2. Respondent violated Chapter 89-504, Section 24(2)(m), Laws of Florida, is guilty of incompetence as alleged in Count Two of the Administrative Complaint, and which imposes an administrative fine of $300 for this violation.

DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

_ CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.

William J. Owens, Executive Director Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo, Florida 34643-5116

Peter Battle, pro se

1090 Sixty-Fourth Avenue, South St. Petersburg, Florida 33705

Howard Bernstein, Esquire County Attorney's Office

315 Court Street Clearwater, Florida 34616

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-002477

Orders for Case No: 97-002477