STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) CONSTRUCTION INDUSTRY )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 97-4845

) 98-0011

EDWIN A. HENRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was held by a duly-designated Administrative Law Judge of the Division of Administrative Hearings Diane Cleavinger, on August 24-26, 1998, January 19-22, 1999 and January 27-29, 1999, in Pensacola, Florida.

APPEARANCES

For Petitioner: Gary L. Asbell, Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

David L. McGee, Esquire Beggs & Lane

Blount Building

3 West Garden Street Suite 600

Pensacola, Florida 32501

Charles T. Wiggins, Esquire Beggs & Lane

Blount Building

3 West Garden Street Suite 600

Pensacola, Florida 32501

For Respondent: Neil H. Butler, Esquire

Butler & Dudley

310 East College Avenue Tallahassee, Florida 32301

Gregory D. Smith, Esquire Gregory D. Smith, P.A.

201 South Baylen Street Suite A

Pensacola, Florida 32501 STATEMENT OF THE ISSUE

The issue in this proceeding is whether disciplinary action should be taken against the Respondent’s registered general and residential contractor’s licenses for violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(j), 489.129(1)(n) and

489.129(1)(o), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 8, 1997, the Department, Construction Industry Licensing Board (Board), through the Department of Business and Professional Regulation (Department) issued a 12-count Administrative Complaint, Case No. 97-004845, against the Respondent, alleging that the Respondent knowingly violated the applicable Building Code (Section 489.129(1)(d), Florida Statutes); committed incompetency or misconduct in the practice of contracting (Section 489.129(1)(n), Florida Statutes); committed gross negligence, repeated negligence, or negligence

resulting in a significant danger to life or property (Section 489.129(1)(o), Florida Statutes); and failed to adequately supervise the construction of three separate residences belonging to Hayward Hornsby, located at 4433 Southminster Circle, Niceville, Florida; Cynthia Campbell, located at 3024 East Kingsfield Road, Pensacola, Florida; and Peter M. McLean, Jr., located at 3038 East Kingsfield Road in Pensacola, Florida (Sections 489.129(1)(j) and 489.1195(1)(a), Florida Statutes).

On December 1, 1997, the Department issued a 16-count Administrative Complaint, Case No. 98-000011, against the Respondent, alleging the same violations as set forth in the previous Administrative Complaint with respect to 13 additional properties or locations. Those properties were an unoccupied dwelling under construction at 102 Louise Drive in Crestview, Florida; an unoccupied dwelling under construction at 106 Louise Drive in Crestview, Florida; an unoccupied dwelling under construction at 107 Louise Drive in Crestview, Florida; an unoccupied dwelling under construction at 420 Jillian Drive in Crestview, Florida; a dwelling at 1255 Shipley Drive in Niceville, Florida (owned and occupied by Mr. and Mrs. Eldon Anthony); a dwelling at 1894 Alfred Boulevard in Navarre, Florida (which was an address that did not exist); an unoccupied dwelling under construction at 5774 Dunbar Circle in Pace, Florida; an unoccupied dwelling under construction at 5719 Dunbar Circle in Pace, Florida; an unoccupied dwelling under construction at 5800

Dunbar Circle in Pace, Florida; an unoccupied dwelling under construction at 7222 Antoinette Circle (Marion Manor Subdivision) in Santa Rosa County, Florida; various buildings under construction within the Tiger Lake Townhome project, located in Santa Rosa County, Florida; a dwelling at 3042 Kingsfield Road in Pensacola, Florida (owned and occupied by Mr. and Mrs. David Preble); and a dwelling at 951 Vonna Jo Circle in Pensacola, Florida (owned and occupied by Mr. and Mrs. James Janecki).

The Respondent disputed the allegations of the Administrative Complaints and requested a formal administrative hearing. Both matters were referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a formal administrative hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997). The cases were consolidated for purposes of the formal hearing.

Prior to hearing, the local Contractor's Competency Boards of Escambia and Santa Rosa Counties met, and disposed of all issues pertaining to the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki. Accordingly, upon a motion filed by counsel for the Respondent before the Administrative Law Judge, those properties were dismissed from this proceeding.

Additionally, prior to the hearing, it was determined that the property allegedly located at 1894 Alfred Boulevard in Navarre, Florida, did not exist. Accordingly, based on a motion filed by counsel for the Respondent, that property was dismissed from this proceeding.

At the formal hearing, the only properties which remained to be addressed were the Hornsby residence, the Anthony residence, the three properties located on Louise Drive, and the property located at 420 Jillian Drive.

Additionally, during the formal administrative hearing, the investigators for the Board, after interviewing a key witness involved in the construction of the Hornsby residence, went to the residence and actually looked at the top plate for the roof system on the residence which the Board had alleged was not properly constructed. Apparently, no one for the Board had actually looked at the top plate for the roof system or asked the person who built the roof on the Hornsby residence how the top plate was built; the investigators, however, discovered that the top plate for the roof met the Building Code requirements.

Accordingly, based on an announcement by the Board’s attorney at the hearing the allegations relating to the top plate of the Hornsby residence were dismissed from this proceeding.

At the formal hearing, the Department offered the testimony of Hayward Hornsby (the owner of one of the residences in question), Frank Abbott (a licensed general contractor and

architect), James O. Power (a licensed professional engineer), Joe Forgione (the former Warranty Manager for Henry Company Homes, Inc.), David Beitz (a building official in Seminole County, Florida), Charles Smith (a former superintendent of Henry Company Homes, Inc.), and Earl Elliott (the Chief Building Inspector in Okaloosa County, Florida). The Department also introduced 29 exhibits with subparts into evidence.

The Respondent testified in his own behalf and offered the testimony of John Kimberl (the former Chief Building Inspector of Escambia County, Florida), Leonard Tylka (a licensed professional engineer), Charles Shinn (a nationally-recognized construction management and organizational consultant), Eldon Anthony (the owner of one of the residences in question), Marlene Nelson (a former vice-president of the Respondent's corporation, Henry Company Homes, Inc.), and John Burris (a brick mason). The Respondent also introduced 54 exhibits with subparts into evidence.

In addition to the evidence presented during the course of the formal hearing itself, the Administrative Law Judge, accompanied by the parties, conducted a "view" of both the Hornsby and the Anthony residences.

The Transcript of the final hearing was filed on February 26, 1999.

After the hearing, the parties entered into a tentative settlement of this matter. However, the settlement failed.

Consequently, the time for filing proposed recommended orders was reset and both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. At all times material hereto, the Respondent, Edwin A. Henry, had been licensed by the Department as a registered general contractor and as a registered residential contractor, having been issued license nos. RG 0045112 and RR 0047927, respectively. Moreover, the Respondent was the qualifying agent for Henry Company Homes, Inc.

2. Henry Company Homes, Inc., is a production builder. A production builder builds homes from various standard or generic plans in the hopes of selling those homes at a later time. The homes are not customized in the sense that the plans for a home are drafted with specific home owners' input or for a specific home owner.

3. The pace of production building is generally substantially faster and less expensive than custom home building. Economies in standard materials and use of labor are the reason for the lesser expense. To gain such economies, Henry Company Homes uses the critical path method of construction. The critical path method is a scheduling outline of the time and sequence of work to be done to build a house. The critical path method is an accepted and appropriate construction management technique and the Respondent’s critical path method and times are

   within the norms of construction techniques accepted in the industry.

4. Respondent was the manager for Henry Company Homes. He did not personally build any of Henry Company’s houses and he did not personally build the houses at issue in this case. Moreover, Respondent was not on-site when these houses were built. Respondent’s role in the company was at least two levels removed from the actual on-site construction of any home. However, the Respondent’s organizational structure and span of management are within the norms accepted in the construction industry.

5. On all homes built by Henry Company, the construction was supervised by a qualified construction supervisor. An assistant supervisor was available to a construction supervisor, should the assigned supervisor need help in overseeing the houses assigned to him. At least one supervisor, Charles Smith, who supervised the construction of the Hornsby house, voiced the standard complaint that he was being overloaded with houses located in different subdivisions and that it was difficult to maintain the production goals established by Henry Homes of completing a house in 10 to 12 weeks. Expert testimony indicated that such a goal was appropriate. Moreover, this complaint seems to be a standard complaint of construction supervisors everywhere and not particularly probative of any of the issues in this case relating to the Respondent. In fact, the Respondent’s

   supervisory responsibility for his on-site superintendents is within the norms accepted in the construction industry.

6. The pace of construction of Henry Company Homes is the only fact submitted by the Department to demonstrate any knowledge or negligence on the part of the Respondent. No facts specific to the time period or pace of building of the houses involved in this complaint were submitted by the Department. Moreover, Mr. Smith also testified that the Hornsby home met the requirements of the Building Code and he was not aware of any defects in the home. Any other evidence on the issue of knowledge was unconvincing.

7. Okaloosa County adopted the 1994 Southern Standard Building Code on November 15, 1994. Prior to that time the County, on September 21, 1993, had adopted by Ordinance the "current edition of the Southern Standard Building Code, including the appendix." In 1993, the current edition of the Southern Standard Building Code was the 1991 Standard Building Code. In all material respects, the provisions of each edition of the Standard Building Code relevant to this proceeding are the same.

8. In essence, the Standard Building Code establishes minimum standards for the construction of residential homes. However, the Code provides for a high degree of flexibility in its interpretation and application by local building officials. One reason for the flexibility is that it is virtually impossible

   to construct a building which is totally compliant with the Building Code. Indeed there is a difference between non- compliance with the Building Code and a violation of the Building Code. Before a violation of the code occurs, notice of a deficiency and an opportunity to correct the deficiency must occur. Local building officials may adopt alternative methods of construction as long as those methods are not prohibited by the Building Code and meet the performance standards of the Building Code. No particular procedure is required for the determination of such alternate methods of construction and the building official is free to apply his expertise and knowledge of the local area to establish such alternate methods.

9. The 1994 Standard Building Code provides, in pertinent part, as follows:

   PREFACE. The purpose of the Standard Building Code is to serve as a comprehensive regulatory document to guide decisions aimed at protecting the public’s life, health and welfare in the built environment. This protection is provided through the adoption and enforcement, by state and local governments, of the performance-based provisions contained herein.

   
   

   The use of performance-based requirements encourages the use of innovative building designs, materials and construction systems while at the same time recognizing the merits of the more traditional materials and systems. This concept promotes maximum flexibility in building design and construction as well as assuring a high degree of life safety.

   
   

   The Standard Building Code incorporates by reference, nationally recognized consensus

   standards for use in judging the performance of materials and systems. This provides for equal treatment of both innovative and traditional materials and systems, provides for the efficient introduction of new materials into the construction process and assures a high level of consumer protection.

   * * * 101.3 Code Remedial

   1. General. This code is hereby

      declared to be remedial and shall be construed to secure the beneficial interests and purposes thereof, which are public safety, health and general welfare through structural strength, stability, . . . and safety to life and property from fire and other hazards attributable to the built environment . . . .

      
      

   2. Quality control of materials and workmanship is not within the purview of this code except as it relates to the purposes stated herein.

   
   

   * * *

   
   

   101.4 Applicability

   101.4.9 Referenced Standards. Standards referenced in the technical codes shall be considered an integral part of the codes . .

   . . Permissive and advisory provisions in a standard shall not be construed as mandatory.

   
   

   * * *

   
   

   1. POWERS AND DUTIES OF THE BUILDING OFFICIAL

      1. General. The Building Official is hereby authorized and directed to enforce the provisions of this code. The building official is further authorized to render interpretations of this code, which are consistent with its spirit and purpose. (Emphasis supplied)

         
         

         * * *

         1. Requirements Not Covered By Code

            Any requirements necessary for the strength, stability . . . or for the public safety, health and general welfare, not specifically covered by this or other technical codes, shall be determined by the building official.

            
            

         2. Alternate Materials and Methods

         The provisions of the technical codes are not intended to prevent the use of material or method of construction not specifically prescribed by them, provided any such alternate has been reviewed by the building official. . . . .

         
         

         1. Examinations of Documents

            1. Plan Review. The building Official shall examine or cause to be examined each application for permit and the accompanying documents, consisting of drawings, specifications, computations and additional data and shall ascertain . . . whether the construction indicated and described is in accordance with the technical codes . . . .

               
               

            2. Affidavits. The building official may accept sworn affidavits from a registered architect or engineer stating the plans submitted conform to the technical

         codes. . . .

         
         

         
         

         105. INSPECTIONS

         * * *

         
         

         * * *

         
         

         105.4 Inspections Prior to Issuance of Certificate of Occupancy or Completion

         The Building official shall inspect . . . at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building

         . . . prior to the issuance of the Certificate of Occupancy or Completion.

         * * * 105.6 Required Inspections

         The building official upon notification from the permit holder or his agent shall make the

         following inspections . . . and shall either release that portion of the construction or shall notify the permit holder or his agent of any violations which must be corrected in order to comply with the technical codes:

         
         

         Building

         
         

         1. Foundation Inspection: To be made after trenches are excavated and forms erected.

         2. Frame Inspection: To be made after the roof, all framing, fireblocking and bracing is in place . . .

         3. Final Inspection: To be made after the building is completed and ready for occupancy.

         
         

         * * *

         202. DEFINITIONS

         GRADE-a reference plane representing the average of finished ground level adjoining the building at all exterior walls. . . . .

         
         

         * * *

         1804. FOOTINGS AND FOUNDATIONS

         1804.1 General

         1804.1.1 Foundations shall be built on undisturbed soil or properly compacted fill material. . . .

         
         

         * * *

         
         

         1804.1.3 The bottom of foundations shall extend . . . no less than 12 inches (305 mm) below finish grade. (Emphasis supplied)

         
         

         * * *

         
         

         1804.18 The area under footings, foundations, and concrete slabs on grade shall have all vegetation, stumps, roots, and foreign materials removed prior to their construction. . . .

         * * *

         
         

         1804.4 Footing Design

         
         

         * * *

         1804.4.2 Footings shall be proportioned to sustain the applied loads and induced reactions without exceeding the allowable stresses specified in this code.

         
         

         * * *

         
         

         1906.4 Depositing

         1906.4.5 After concreting has started, it shall be carried on as a continuous operation until placing a panel or section, . . . is completed except as permitted or prohibited by 1907.4.

         
         

         * * * 1907.4 Construction Joints

         * * *

         
         

         1907.4.3 Construction joints shall be so made and located as not to impair the strength of the structure. Provision shall be made for transfer of shear and other forces through construction joints.

         
         

         * * * 2111. MASONRY CONSTRUCTION

         * * *

         
         

         2111.1.3 Weepholes. Weepholes shall be provided in masonry veneer . . . at a maximum spacing of 4 ft (1219 mm) on center by omitting mortar in the head joints.

         Weepholes shall be located in the first course above the foundation wall or slab . . . .

         
         

         2111.1.4 Installation of Wall Ties. The ends of wall ties shall be embedded in mortar joints. Wall tie ends shall engage outer face shells of hollow units by at least 1/2 inch (12.7 mm). . . .

         
         

         * * *

         203.1.2 The detailed structural requirements contained in this chapter are based on sound engineering principles. . . .

         
         

         * * *

         
         

         2301.2 Design

         2301.2.1 The quality and design of wood members and their fastenings used for load supporting purposes shall conform to good engineering practices.

         
         

         2301.2.1 All members shall be framed, anchored, tied and braced so as to develop the strength and rigidity necessary for the purposes for which they are used.

         
         

         2301.2.1 Preparation, fabrication and installation of wood members and the glues, connectors, and mechanical devices for the fastening thereof shall conform to good engineering practices.

         
         

         * * *

         
         

         2306. FASTENINGS

         2306.1 Nailing and Stapling Requirements. The number and size of nails or staples connecting wood members shall not be less than those specified in Table 2306.1. . . .

         
         

         2306.2 Other Fastenings. Where framing anchors, clips, staples, glues or other methods of fastening are used, they shall be labeled, listed and installed in accordance with their listing.

         
         

         * * *

         
         

         2308. VERTICAL FRAMING

         2308.1 Exterior Wall Framing 2308.1.1. Studs in one and two story

         buildings shall not be less than 2x4 with the wide face perpendicular to wall. . . .

         
         

         * * *

         
         

         2308.1.1 Heights listed in 2308.1.1 are distances between points of horizontal lateral support placed perpendicular to the

         plane of the wall. Heights may be increased where justified by analysis.

         
         

         * * *

         
         

         2308.1.5 Studs shall be capped with double top plates installed to provide overlapping at corners and at intersections with bearing partitions. End joints in double top plates shall be offset at least 24 inches (610 mm). In lieu of double top plates, a continuous header may be used. . . .

         
         

         2308.1.5 Studs shall have full bearing on a plate or sill of not less than 2 inch nominal thickness and having a width at least equal to the width of the studs.

         
         

         * * *

         
         

         2308.5 Interior bearing Partitions 2308.5.1 The provisions of 2308.1.1,

         2308.1.2, 2308.1.3 and 2308.1.4 shall apply to interior bearing partitions supporting more than a ceiling under an attic with no storage.

         
         

         * * *

         
         

         2308.5 Interior Nonbearing Partitions 2308.5.1 Framing for nonbearing partitions shall be of adequate size and spacing to support the finish applied. . . .

         
         

         * * *

         2309. ROOF AND CEILING FRAMING

         2309.1 Ceiling Joists and Rafter Framing

         
         

         * * *

         
         

         2309.1.3 Ceiling joists and rafters shall be nailed to each other where possible . . . .

         
         

         * * * 2309.1 Trussed Rafters

         * * *

         2309.1.3 The bracing of metal plate connected wood trusses shall comply to their appropriate engineered design. In the absence of specific bracing requirements, trusses shall be braced in accordance with the Truss Plate Institute’s "Handling, Installing and Bracing Metal Plate Connected Wood Trusses, HIB-91."

         * * * 2309.1 Roof Sheathing

         2309.1 All rafters and roof joists shall be

         covered with one of the following Materials:

         
         

         * * *

         
         

         4. Particleboard applied in accordance with the provisions of Table 2309.3B and nailed in accordance with Table 2306.1.

         
         

         * * *

         
         

10. Table 2306.1 provides that roof sheathing of the type used in the houses involved in this case be nailed 6 inches on center at the edges and 12 inches on center intermediate.

11. The Administrative Complaint alleges the following Building Code violations as the sole basis for the proposed disciplinary action against the Respondent in relation to both the Hornsby and Anthony houses:

    1. Foundation does not extend at least 12 inches below finished grade;

    2. Foundation is deficient as to form;

    3. Stub trusses are not anchored to the interior weight bearing wall;

    4. Stub trusses are not adequately cross braced;

    5. Brick veneer is not adequately anchored to the interior sheathing or studs to safely resist wind loads; and

    6. As to the Hornsby house, the roof sheathing is not attached to resist wind load requirements in the code.

12. The construction of the Hornsby residence was permitted by Okaloosa County, Florida, on June 2, 1994. At the time the Hornsby permit was issued, Okaloosa County was not reviewing building plans for compliance with wind load requirements of the Building Code or inspecting properties for compliance with wind load requirements of the Building Code.

13. The construction of the Anthony residence was duly permitted by Okaloosa County, Florida, on June 6, 1996. At the time the permit was issued, Okaloosa County was reviewing building plans for compliance with wind load requirements of the Building Code. The plans for the Anthony residence passed that review by the Okaloosa County Building Department.

14. The Hornsby and Anthony homes are wood-frame houses built on monolithic concrete slabs. They have a hip roof. The exterior walls are covered by brick veneer anchored with standard brick ties. Both houses have brick veneer which moves with the application of strong hand pressure to the top part of the veneer. The deflection on one wall of the Hornsby house is at least 1 inch. The deflection on the remainder of the Hornsby house and all of the Anthony house is slight and within general engineering perimeters. Both houses have been through at least two major hurricanes since they were built. Both hurricanes had winds in excess of any wind load requirements. Neither house sustained significant damage from either hurricane.

15. There was no evidence submitted, through appropriate calculations, that the houses involved in this case did not meet the performance criteria of the Building Code. To the contrary, there is evidence that these houses do meet the performance requirements of the Building Code since they have survived at least two major hurricanes without sustaining the type damage these performance tests were designed to prevent.

16. The Respondent requested and the Okaloosa County Building Department (Okaloosa County) conducted all required inspections of the Hornsby and Anthony residences. One deficiency, not at issue here, was noted by Okaloosa County during construction of the Hornsby house and was promptly repaired by the Respondent to the satisfaction of the local building official. No deficiencies were noted by Okaloosa County during any of the inspections of the Anthony house.

17. A Certificate of Occupancy (Certificate) was issued by Okaloosa County for the Hornsby house on March 14, 1995. The Certificate certified to the Respondent that the Hornsby residence was constructed in accordance with the applicable Building Code.

18. Hayward Hornsby purchased the house within several weeks after the Certificate was issued and after one walk-through of the house. However, shortly after moving in, Mr. Hornsby noticed that large portions of the ceiling drywall were sagging or wavy. The view of the property corroborated the condition of

    portions of the Hornsby ceiling, but, the ceiling is not unsightly; the waviness in the Hornsby ceiling can be traced to an unlevel foundation. However, the waviness does not appear to be the result of any code violation on the Respondent’s part, but is one of workmanship. After seeing the wavy ceiling,

    Mr. Hornsby has never been happy with his house.

    
    

19. A Certificate on the Anthony house was issued by Okaloosa County on December 9, 1995. The Certificate certified to the Respondent that the Anthony residence was constructed in accordance with the applicable Building Code. Mr. Anthony, to this day, is happy with his home and has never complained to the Department about his home. It was Mr. Hornsby who directed the Department to Mr. Anthony’s home.

20. As indicated, the applicable Building Code requires that the foundation extend at least 12 inches below finished grade. Section 1804.1.3, Standard Building Code, 1994. The foundation in the Hornsby and Anthony residences clearly met this Building Code requirement. Additionally, the view of each property demonstrated that the foundation met the Building Code requirement for depth. The Department’s expert testified that the correct measurement for determining the depth of the foundation below finished grade was from the bottom of the foundation to the bottom of the brick shelf. That is not the correct measurement for determining compliance with the Building Code. The correct measurement is from the bottom of the

    foundation to the top of the finished grade. The closest estimate of the original finished grade for both houses was the soil stain on the brick wall. Even after the Administrative Complaint was filed, the Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the depth of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence.

21. The Building Code requires that the foundation be sufficient to carry the load of the structure. Section 1804.4.2, Standard Building Code, 1994. The Department’s experts have testified that they had not performed any tests or calculations to determine whether the Hornsby or Anthony foundations are sufficient to carry the load of the structure. Importantly, nowhere in the Building Code is it required that walls be plumb or that foundations be level or shaped a certain way. One reason for this omission is that the materials and environmental conditions involved in construction are flexible and unpredictable, making mathematical and geometric precision impossible. Therefore, the soundness of a wall or a foundation under the Building Code is determined by using the various formulas for loads, wind, etc. Misshaped or unlevel foundations, or unplumb walls are not, by themselves, violations of the Building Code. Such construction is involved more in the quality of workmanship than in any code violations.

22. The view of the Hornsby and Anthony residences conducted by the Administrative Law Judge failed to disclose any facts which support the allegation in the Administrative Complaint as to the form of the foundation. Moreover, the Complaint alleges that Mr. Anthony had cracked bricks as the result of the insufficient foundation. No cracked bricks were observed during the view of the Anthony residence. The Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the form of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence.

23. On both the Hornsby and Anthony houses, the stub trusses were not anchored to the interior weight-bearing wall. Stub trusses are the blunt nosed trusses on a hip roof which intersect the main roof of a house and run under the main roof of a house forming a "T"-like structure. In this case, the blunt end of the stub trusses rested on an interior load-bearing wall. The other end of the stub trusses rested on an exterior load- bearing wall. The part of the trusses on the exterior load- bearing wall were properly anchored.

24. When the Hornsby residence was permitted, Okaloosa County was not reviewing plans for compliance with the wind load requirements of the Building Code. Plans review did not begin in Okaloosa County until July 1, 1994. Such review did occur with the Anthony house. Indeed, at the time both houses were built,

    there was a great deal of confusion within the building community as well as Okaloosa County regarding how to comply with wind load requirements of the Building Code. When the Hornsby and Anthony houses were constructed, neither the builder nor Okaloosa County knew that the prescriptive method for wind load requirements (SSTD 10-93) required the stub trusses to be anchored to an interior weight-bearing wall because the intersecting main roof covers that part of the stub trusses. It was clear the end of the trusses resting on an exterior weight-bearing wall had to be anchored. The Respondent built both houses consistent with the interpretation and enforcement of the Building Code by the local building official and consistent with local building practices in the area.

25. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence and confirmed that the stub trusses were not anchored properly as required by the wind load requirements of the local Building Code. In response to this finding (and consistent with established industry standards), the Respondent employed an engineer to design an appropriate anchoring mechanism for this condition. The engineer’s design was approved by Okaloosa County and properly installed by the Respondent as an alternate method of construction. Okaloosa County inspected the work and cleared the code deficiency.

26. Based on the confusion by both contractors and local building officials regarding the wind load requirement of the Building Code at the time the Hornsby and Anthony residences were constructed, this technical Building Code deficiency was not a knowing violation by the Respondent. No evidence was presented by the Department that the Respondent had any personal knowledge of the existence of this condition prior to the filing of the Administrative Complaint. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence.

27. The Building Code requires that the stub trusses be braced in accordance with the engineered truss drawings. At the time the Department made this allegation, its experts had not reviewed the engineered truss drawings. Based on observations at the viewing of the Hornsby residence, the bracing for the stub trusses in the Hornsby residence substantially met this Building Code requirement. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence. The Okaloosa County Building Official did not find any Building Code violations with respect to the cross-bracing of the trusses. He did note the bracing was light. Based on the view conducted by the Administrative Law Judge, the stub trusses did not have the required amount of bracing. The bracing which was in place was spaced too far apart by about 1 foot on the middle set of stub trusses. This spacing does not appear to be

    material and no calculations were completed to demonstrate that the bracing in place was inadequate or negligent construction. Moreover, no knowledge or negligence is attributable to the Respondent since he was unaware of the deficiency and the local building inspector passed the bracing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence.

28. When the brick veneer was removed on the end of the Hornsby residence, it was shown that all of the brick ties were installed into the interior sheathing or wall studs. Okaloosa County requires that the framers, not the brick masons, install the brick ties. The brick ties that were imbedded in the brick were properly installed, consistent with local construction practices in Okaloosa County. The failure of the brick masons to use the top row of brick ties is not a condition that the contractor knew about or reasonably could have known about, even with adequate supervision. The Hornsby and Anthony residences passed a brick tie inspection, the inspection which tells the contractor that the brick ties are properly installed and spaced. The failure to use the brick ties on the top row did not cause the excessive movement in the brick veneer of the Hornsby house. Due to the method of installation of Okaloosa County, it was impossible to use those ties on the soldier or top course of the brick wall. Indeed, the Department has failed to prove that the excess movement in the brick veneer of the Hornsby house even

    existed at the time the Certificate was issued on the Hornsby residence. The movement in the brick was caused by a break in the bond between the brick and the mortar in the tenth course from the top of the wall. It is impossible to know when or why that break occurred. However, Mr. Hornsby’s first report of brick movement to Okaloosa County was after the second hurricane hit Okaloosa County in 1995. The break in the bond could have been caused by the hurricanes or some other external force unrelated to the installation of the brick at the time the house was built. Although the Department’s expert testified that the brick veneer at the Anthony residence had the same movement as the brick in the Hornsby residence that conclusion had no factual foundation. The inspection by the Okaloosa County Building Inspector failed to disclose any excess movement in the brick veneer. A licensed engineer and contractor observed only the slightest movement in the veneer, all of which was within normal tolerances. Most importantly, no excess movement of the veneer was observed during the view. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

29. The Building Code requires roof sheathing to be nailed

    
    

    6 inches on center at the edges and 12 inches on center intermediate. Table 1206.1, Standard Building Code, 1994. The Department’s experts did not agree as to the number and severity of locations where nails in the roof sheathing missed the roof trusses. Based on the view of the Hornsby residence, there were

    some missed nails in the roof sheathing which allowed one section of sheathing to be lifted with hand pressure. The extent of the missed nails was very small compared to the number of nails contained in a roof on an average size house. All of the testimony supports the conclusion that the frequency and severity of this condition was not material. The number of "missed" nails was not a material deficiency and has not affected the performance or safety of the roof system. The deficiency is easily correctable. The concept that a few missed nails are a code violation that would support discipline of a contractor is not consistent with industry practice. Moreover, the record is void of any evidence that the Respondent had knowledge of this condition or that this condition was the product of a lack of supervision by the Respondent or even negligence attributable to the Respondent. To the contrary, the Hornsby residence passed a framing inspection, which included an inspection of the nailing in the roof sheathing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence.

30. Moreover, after Mr. Hornsby complained about defects or problems in his home, he consistently denied access to the Respondent for the purpose of effecting repairs. In general Okaloosa County requires that a contractor be allowed an opportunity to fix a code deficiency before it considers a deficiency to be a violation of the Building Code. This

    interpretation of the Building Code by the agency responsible for its interpretation and enforcement is reasonable.

31. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Hornsby residence, if any. Since the Respondent was not allowed such opportunity in relation to the Hornsby house, there is no code violation which the Respondent was aware of.

32. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Anthony residence, if any, and was allowed to do so in at least one instance.

33. Finally, on both the Anthony an Hornsby houses, the evidence failed to demonstrate that the Respondent’s supervisors were unqualified or failed to supervise the subcontractors underneath them or that the Respondent had specific personal knowledge of a supervisor’s failure to supervise. Likewise, the evidence did not demonstrate that the subcontractors were unqualified or that the Respondent had specific personal knowledge that a subcontractor was unqualified or performed in a negligent manner. Without such specific and personal knowledge on the part of the Respondent, none of the charges contained in the Administrative Complaint can be attributed to the Respondent. Therefore the Department has failed to establish that Respondent is guilty of violating Chapter 489, Florida Statutes.

34. The construction of the residences at 102, 106, and 107 Louise Drive and 420 Jillian Drive were duly permitted by the

    City of Crestview, Florida. All of these houses were incomplete at the time of the inspection by the Department’s experts.

35. The Department offered very little evidence in support of the allegations relating to these unfinished houses. On most of the houses the Respondent had not called for an inspection of the work the Department alleged was a violation. If the contractor has not called for an inspection of a particular phase of the work on unfinished houses, then the condition of that work by itself cannot support an alleged Building Code violation. In like regard, if the contractor calls for an inspection, and a deficiency is noted and the contractor corrects the deficiency to the satisfaction of the building official, then no code violation exists. All of the allegations regarding the incomplete houses fail for one of these two reasons.

36. On all the unfinished houses the Department alleged that the foundation did not extend at least 12 inches below grade. Again proper measurement to determine the depth of a foundation is based on the finished grade. See Section 1804.1.3, Standard Building Code, 1994. At the time each of these homes was inspected by the Department and its experts, finished grade had not been established. Therefore, there is no

    factual basis for this allegation in the Administrative Complaint and the Department has failed to prove this allegation by clear and convincing evidence.

37. At 102 and 107 Louise Drive the Department alleged that the brick ties were not properly spaced. At the time of the inspection by the Department and its experts, the Respondent had not called for a framing inspection. Nor was there any evidence that the construction supervisor of the home had accepted the brick tie placement. Accordingly, the spacing of the brick ties could not be the basis of an alleged violation. Indeed, The Department’s expert agreed that this was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

38. At 106 Louise Drive the Department alleged that the drywall was improperly nailed. At the time of the inspection by the Department and its experts, the drywall was being installed. No observations were made after the drywall installation was completed to determine the final nailing pattern. The Department’s expert agreed that the condition he observed (which was the basis for the allegation in the Administrative Complaint) was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

39. Also at 106 Louise Drive the Department alleged that the joint offset spacing in the top plate is less than 24 inches apart. At the time of the inspection by the Department and its experts, the Respondent had not called for the framing inspection on this house. The evidence further shows that the issue of the joint offset that was observed during the framing inspection, was

    noted by the building inspector as an exception, was corrected by the Respondent to the satisfaction of the local building official and was passed by the local building official. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

40. At 102, 106, and 107 Louise and 420 Jillian the Department alleged that the girder trusses were not anchored.

    The Department offered no evidence on this issue. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

41. At 102 and 107 Louise the Department alleged that the exterior sheathing was not properly nailed. The Department offered no evidence regarding this condition at 102 Louise Drive. At the time of the inspection by the Department and its experts of 107 Louise Drive, the Respondent had not called for a framing inspection. The local building official conducted a framing inspection on both houses. Both houses passed the framing inspection. Therefore, the Department has failed to prove this allegation by clear and convincing evidence.

42. Additionally, on all the unfinished houses, the Respondent requested and the City of Crestview conducted all required inspections of these houses. No deficiencies were noted by the City of Crestview Building Department during any of those inspections other than the joint offset at 106 Louise Drive. A Certificate was issued by the City of Crestview on each of these

    houses. The Certificate certified to the Respondent that these houses were constructed in accordance with the applicable Building Code.

43. As with the Hornsby and Anthony house, even if code violations had been established, the evidence is insufficient to establish that the Respondent knowingly committed any code violations with respect to the properties remaining in these two Administrative Complaints.

44. Likewise, the evidence is insufficient to independently establish that the Respondent committed negligence, incompetency, or misconduct in the practice of contracting. The evidence fails to establish that the Respondent deviated from the applicable standard of care. The evidence did not show that the Respondent relied on unqualified supervisors or subcontractors or that he specifically and personally knew of such. The Respondent is entitled to rely on such qualified personnel. Without such evidence the misconduct charged in the Administrative Complaint cannot be attributed to the Respondent.

45. Moreover, the evidence independently establishes that the Respondent had adequate systems and safeguards in place for supervision of his personnel, and adequately supervised the work on the job sites in question through such qualified construction supervisors.

46. Finally, prior to the commencement of the formal hearing in this matter, the local competency boards for the

    appropriate jurisdictions disposed of those matters involving the following properties in favor of the Respondent: the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by

    Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki.

47. The undisputed evidence, in the form of an Affidavit from the Respondent, establishes that the residence allegedly located at 1894 Alfred Boulevard in Navarre, Florida, did not exist; this fact was unopposed by the Department.

    CONCLUSIONS OF LAW

    
    

48. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject mater of these proceedings. Sections 120.569 and 120.57(1) Florida Statutes (1997).

49. The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes (1997); Sections 489.131(7) and 455.225, Florida Statutes (1997). Pursuant to Section 489.129(1), Florida Statutes (1997), the Construction Industry Licensing Board is the entity responsible for imposing discipline for any of the violations set forth in that Section.

50. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

51. Clear and convincing evidence requires that

    
    

    . . . the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

52. Additionally, in determining whether the Respondent violated the provisions of Section 489.129(1), Florida Statutes (1997), as alleged in the Administrative Complaints, the statute must be strictly construed and no conduct is to be regarded as included within the statute that is not reasonably proscribed by it. Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

53. Section 489.129(1), Florida Statutes (1997), provides, in pertinent part, as follows:

    (1) The board may take any of the following actions against any certificate holder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate or registration, or certificate of authority, require financial restitution to a consumer

    for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed

    $5,000.00 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under

    s. 489.1195 is found guilty of any of the following acts:

    
    

    * * *

    
    

    (d) Knowingly violating the applicable building codes or laws of the state or of any municipalities or counties thereof.

    
    

    * * *

    
    

    (j) Failing in any material respect to comply with the provisions of this part or violating a rule or lawful order of the board.

    
    

    * * *

    
    

    1. Committing incompetency or misconduct in the practice of contracting.

       
       

       * * *

       
       

    2. Committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property.

    
    

54. Rule 61G4-17.001, Florida Administrative Code, proscribes a contractor from failing to adequately supervise the contractor’s construction. The rule does not require a certain method for achieving such supervision. Moreover, Section 489.1195, Florida Statutes, which provides that a qualifying agent for a business entity is responsible for the construction

    work of that entity, does not impose such vicarious liability on a licensee for disciplinary purposes. Section 489.1195, Florida Statutes, applies to qualifying agents. Discipline can only be imposed on the business entity for which the agent acts. See Section 489.119(4), Florida Statutes. Discipline against a contractor’s license, which by statute is personal to that contractor, is governed by Section 489.129, Florida Statutes.

    Moreover, Section 489.1195, Florida Statutes, like the rule does not provide the method for reasonably achieving such supervision. It is reasonable for a person to rely on other qualified individuals in the performance of such supervision.

    Additionally, responsibility for fixing construction is not the same as responsibility for disciplinary purposes. Responsibility for fixing construction deficiencies is based more in contract law. Responsibility for disciplinary purposes is strictly statutory.

55. The Department filed two Administrative Complaints against the Respondent. These Administrative Complaints alleged and were wholly premised on the assertion that specific code violations purportedly existed in certain completed residences or properties under construction.

56. Based on the existence of those alleged code violations, the Department further asserted that the Respondent was also guilty of incompetence or misconduct, negligence, and

    failure to adequately supervise, in violation of Section 489.129(1), Florida Statutes (1997).

57. The disciplinary action taken may be based only upon the offenses specifically alleged in the Administrative Complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2d DCA 1984).

58. Throughout the formal administrative hearing, the Department attempted to try a case that had not been pled, alleged, or raised. Despite a number of warnings and admonitions from the Administrative Law Judge, the Department persisted in attempting to inquire into matters that were outside of the pleadings, to examine the Respondent’s alleged conduct "generally" (without reference to the specific charges or properties contained in the two Administrative Complaints), and to explore properties that had not been addressed or charged in either of the Administrative Complaints.

59. The Department also attempted to prove, at the formal administrative hearing, a pattern of conduct on the part of the Respondent, when no such pattern had been alleged in the pleadings or could reasonably be gleaned from a review thereof.

60. The Department attempted to prove, at the formal administrative hearing, that the Respondent was responsible for

    alleged "design" problems in some of the residences in question, based on the allegation that the Respondent purportedly failed to adequately supervise. Contractors ordinarily don't design homes (as an architect or engineer would), and nothing about the charge of "failure to supervise" puts the Respondent on notice of a "defective design" claim.

61. Due process requires, at a minimum, adequate notice of the proscribed violation, and a meaningful opportunity to defend against the same. Sternberg, supra; Hunter, supra.

62. Had the Department desired to put on evidence of alleged defects in other residences or properties, it could have either amended its Administrative Complaints and charged the Respondent with violations with respect to such residences or properties, or could have provided the requisite notice of intent to use similar fact evidence under Section 120.57(d), Florida Statutes (1997).

63. The local building official is charged with the responsibility of interpreting, applying, and enforcing the Building Code. Indeed, the local construction boards are the controlling agencies with respect to locally registered contractors. Section 553.80, Florida Statutes (1997).

64. The Department has no jurisdiction with respect to the interpretation, application, and enforcement of the Building Code. Section 553.80, Florida Statutes (1997).

65. The local building official, in the exercise of his interpretive powers under the Building Code, has the ability to conform the requirements of the code to local building practice, and to prescribe alternate methods, means, and materials which, in his judgment, meet the purpose and intent of the code. Section 103.7, Standard Building Code, 1994.

66. When an agency with the authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another interpretation may be possible. Seibert v. Bayport Beach and Tennis Club Association, Inc., 573 So. 2d 889 (Fla. 2d DCA 1990).

67. Hence, the building official's determination that a particular circumstance or condition complies with the code is entitled to great weight, and unless the same is shown to be clearly erroneous, should be sustained. Id.

68. A contractor has a right to rely on the local building official's interpretation of the code. Id.

69. Consequently, a contractor is entitled to rely on the inspections performed by the local building official and on the issuance of Certificates of Occupancy in connection with the dwellings which he constructs.

70. It is not sufficient for the Department to simply assert and prove that a code violation exists as a basis for imposing discipline. To do so would make code violations matters of strict liability for disciplinary purposes.

71. As a plain reading of Section 489.129(1)(d), Florida Statutes (1997) demonstrates, the statute requires a mental element or a scienter requirement in connection with alleged code violations. The statute specifies that in order for a code violation to be the basis of disciplinary action, the code violation must have been committed "knowingly."

72. Chapter 489, Part I, Florida Statutes (1997), does not expressly define the word "knowingly." Thus, that word is deemed to have the meaning which the law ordinarily accords it. State v. Bryant, 712 So. 2d 701 (Fla. 2d DCA 1998); State v. Cohen, 696 So. 2d 435 (4th DCA 1997)

73. Black's Law Dictionary (5th edition) defines "knowingly" as:

    With knowledge; consciously; intelligently; willfully; intentionally.

    
    

74. In short, that the Respondent specifically and personally knew that the homes involved in this complaint were being constructed in violation of the code or in a negligent manner.

75. Seibert holds that a contractor cannot be held responsible, in a civil action, for negligence, based on his compliance with the terms of the Building Code, as interpreted by the local building official.

76. If a contractor cannot be said to be "negligent" for relying on the interpretation of the building official as to the application of the Building Code, then the contractor in so doing

    cannot be said to have "knowingly" violated the Building Code.

    
    

    In such regard, a contractor is clearly complying with the provisions of the code by relying on the only official authorized to interpret and enforce the same -- the local building official.

77. Therefore, the Respondent is not guilty of knowingly violating the Building Codes.

78. Based on both the failure of the Department to prove a knowing violation of the Building Codes, as well as the failure of the Department to adduce any independent evidence of negligence, incompetency or misconduct, or failure to supervise, the Respondent is not guilty of negligence, incompetency or misconduct, or failure to supervise.

79. Finally, Section 489.131(7)(f), Florida Statutes (1997), provides:

    (f) The department may investigate any complaint which is made with the department. However, if the department determines that the complaint against a registered contractor is for an action which a local jurisdiction enforcement body has investigated and reached adjudication or accepted a plea of nolo contendere, including a recommended penalty to the board, the department shall not initiate prosecution for that action, unless the secretary has initiated summary procedures pursuant to s. 455.225(8).

80. The aforesaid statute creates a "race to prosecution/disposition," with the decision of the entity first reaching adjudication being conclusive on the matter.

81. Once adjudication has occurred, with respect to a matter affecting the Respondent’s licenses to practice

    contracting, by a body entitled to make such a determination, under the language and intent of Section 489.131(7)(f), Florida Statutes (1997), such a determination is conclusive, and forecloses further consideration and litigation of the issue.

82. Accordingly, the allegations and counts relating to the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki should be dismissed.

83. Additionally, based on the non-existence of the property allegedly located at 1894 Alfred Boulevard in Navarre, Florida, the allegations and counts relating thereto should be dismissed.

84. For a similar reason and on both the findings of fact set forth herein, as well as the action of the local competency board, the allegations and charges with respect to the Anthony residence should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent not guilty of any of the counts in either of the Administrative Complaints.

DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2000.

COPIES FURNISHED:

Gary L. Asbell, Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

David L. McGee, Esquire Beggs & Lane

Blount Building

3 West Garden Street Suite 600

Pensacola, Florida 32501

Charles T. Wiggins, Esquire Beggs & Lane

Blount Building

3 West Garden Street Suite 600

Pensacola, Florida 32501

Neil H. Butler, Esquire Butler & Dudley

310 East College Avenue Tallahassee, Florida 32301

Gregory D. Smith, Esquire Gregory D. Smith, P.A.

201 South Baylen Street Suite A

Pensacola, Florida 32501

Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and

Professional Regulation

7960 Arlington Expressway, Suite 300

Jacksonville, Florida 32311-7467

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommend 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: 97-004845

Orders for Case No: 97-004845