Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
Findings Of Fact At all times material to these proceedings, the Respondent, David R. Knight, held a registered general contractor's license numbered RG 007907 issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board initially in July, 1968. Respondent's license is presently in an inactive status for failure to renew but renewal can be accomplished by Respondent paying the required renewal fee only. On May 13, 1983, Respondent contracted with Joseph Cobb to remodel a house in Milton, Florida. The contract price was $23,800.00. The Respondent began the remodeling and when the project was approximately 50 percent completed, left the site. Joseph Cobb, on numerous occasions, offered to work with the Respondent in any way to finish the project, but the Respondent failed to return. Joseph Cobb paid Respondent $19,100.00 from May 14, 1983 through June 23, 1983. In addition, although the contract required Respondent to pay for all supplies and materials, Cobb paid $2,300.98 for supplies and material used in the remodeling. Respondent failed to pay Gary Rich Plumbing for the plumbing work done on the Cobb residence. Joseph Cobb was forced to pay Gary Rich $1,200.00 in order to avoid a lien being filed on his home. Respondent was not licensed to contract in Milton, Santa Rosa County, Florida, when he contracted with Joseph Cobb to perform remodeling. In June, 1982, Respondent contracted with Pearlie Rutledge to remodel a house at 608 North D Street, Pensacola, Florida, Escambia County. The contract price was $17,000.00. The Respondent began the construction without obtaining a building permit which is in violation of Section 106 Standard Building Code as adopted by the City of Pensacola Ordinance 81-83. Respondent deliberately and in a hurry left the site of construction when the building inspector appeared on the job. The Respondent was not licensed in Escambia County or the City of Pensacola to practice contracting. Pearlie Rutledge paid Respondent $5,000.00 which the Respondent failed to return when the remodeling was stopped by Charles Humphreys, Housing Inspector for the City of Pensacola. Pearlie Rutledge obtained a Final Judgement against the Respondent for $4,557.00 which has not been paid by the Respondent. Respondent's "81-82' and "82-83", Okaloosa County Occupational License was issued to David Knight doing business as "Your Way Construction." However, there was no evidence presented at the hearing that Respondent ever contracted in the name of "Your Way Construction." In fact there is evidence that during the year 1983 he contracted with Cobb as David Knight, General Contractor and not as David Knight, General Contractor, d/b/a Your Way Construction. (See Petitioner's Exhibit No. 1.)
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Board enter a final order Dismissing Counts II, V and VI of the Administrative Complaint filed against the Respondent. It is further RECOMMENDED that the Board enter a final order finding Respondents guilty of the violation charged in Counts I, III and IV of the Administrative Complaint filed against the Respondent and for such violation it is RECOMMENDED that the Board revoke the Respondent's registered general contractor's license numbered RG 0007907, to practice contracting in the State of Florida Respectfully submitted and entered this 9th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 84-3836 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Exhibit 1). 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. Adopted in Finding of Fact 2 except for contract amount which should have been $23,800. (See Petitioner's Respondent Did Not Submit Any Proposed Findings of Fact COPIES FURNISHED: James Linnan, Executive Director Department of Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David R. Knight 1215 East Hayes Street Pensacola, Florida 32503
The Issue Whether Respondent committed the offenses described in the administrative complaints filed against him? If so, what discipline should he receive?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: General Information Edward Ryan is now, and has been since October, 1973, licensed as a Building Contractor by the State of Florida. He holds license number CB 0006481. Ryan has previously been disciplined by the Florida Construction Industry Licensing Board (Board). In July, 1987, prior to the issuance of the instant administrative complaints, he received a letter of reprimand from the Board. The Department of Professional Regulation has recently received additional complaints concerning Ryan. These complaints are currently under investigation. Ryan has been the qualifying agent for Gulf Chemical Contractors, Inc. (Gulf) since August, 1982. All ten of the instant administrative complaints involve projects undertaken by Gulf in Dade County, Florida. The South Florida Building Code (Code) has been adopted as the building code for both the incorporated and unincorporated areas of Dade County. The Code provides in pertinent part as follows with respect to the requirement of permits: It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof; or any equipment, device or facility therein or thereon; or to change the Occupancy of a building from one use Group to another requiring greater strength, means of egress, fire and sanitary provisions; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code; without first having filed application and obtained a permit therefor, from the Building Official, validated by payment there for. EXCEPTION: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building Official. The Code further requires that the permit holder or his agent notify the Building Official of the completion of the project and call for an inspection of the work completed. Another requirement of the Code is that products such as air vent systems receive official approval from the appropriate Building Official prior to their installation. An experienced building contractor like Ryan doing business in Dade County should be aware of these requirements and should know that it is the responsibility of the general contractor of a project to make sure that these requirements are met. Case No. 89-2204 On May 2, 1987, Helana Lau and her husband entered into a written contract with Gulf. Gulf agreed to perform work on the Lau residence located at 2400 S.W. 15th Street in Miami, Florida, for which it was to be paid, pursuant to the terms of the contract, $11,450.00 by the Laus. The work that was to be performed on the structure included, among other things, the replacement of the roof and "any rotted wood on facia and soffits" and the installation of a "filter vent system." Gulf installed an aluminum air vent system for the Laus. The product used by Gulf had not received official approval prior to its installation as required by the South Florida Building Code. Furthermore, it posed a potential safety hazard. No official inspection of the contract work performed by Gulf on the Lau residence has ever been requested, notwithstanding that Gulf has long since terminated its work in connection with the project and vacated the jobsite. Case No. 89-2205 On December 29, 1986, Marvin Lichtenstein entered into a written contract with Gulf. Gulf agreed to texture coat Lichtenstein's home located at 2080 N.E. 171st Street in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,000.00 by Lichtenstein for performing this work. The contract contained a handwritten notation that "finances will be appr 10-11%" and that therefore Lichtenstein would have "a monthly payment of appr $71 or less" on the unpaid balance, which was $3,900.00. The contract also contained the following provision, which unlike the aforementioned notation was printed: This is an agreement by the parties mentioned herein to enter into an installment loan contract. The Purchaser requests that the Seller and the Seller's agents make the appropriate inquiries into the Purchaser's credit history and into the condition of the Title of the Property to be encumbered. The purpose of these inquiries is to see if the Seller may be able to arrange financing of the unpaid cash balance and what the terms of that financing may be. The purchaser agrees to accept any Home Improvement Contract presented by or thru the Seller, that has an interest rate less than the maximum current interest mentioned in the Florida Retail Installment & Sales Acts. The Purchaser agrees that all cost incurred by the Seller in connection with the payment plan will be paid by the Purchaser if the Purchaser refuses to accept that Home Improvement Contract. The work was performed by Gulf on the Lichtenstein home during the second week of January, 1987. Although a permit was required under the Code, it was not obtained prior to the commencement of the project or at any time thereafter. Furthermore, no official inspection of the work completed by Gulf has been requested. Following the completion of the work, Lichtenstein received from AmSav Financial, Inc., an Advance Notice of Acceptance and Intent to Purchase an FHA Title I Note. The document, which was dated January 14, 1987, provided Lichtenstein with the following information: We have found your credit to be satisfactory for a loan in the amount of $3,900.00 for a period of 60 months. Interest at a rate of 14.50% will be charged on the unpaid principal balance. Monthly payments will be $92.82. It is our intention to disburse the funds to the above mentioned dealer [Gulf] when all necessary documents, including a completion certificate indicating the work has been satisfactorily completed are received in proper order; but not earlier than six days from this date. It is not our policy to inspect all improvement projects we finance, so we want you to know that the selection of the contractor and the acceptance of workmanship and materials is your responsibility. You should insist on a copy of all instruments you sign and you should not sign the completion certificate until the contract has been fulfilled to your satisfaction. Contractors are not permitted to give cash rebates from the proceeds of this transaction nor are they permitted to make any payments for you nor any other type of incentive to buy. This commitment is good for 60 days only. If you have any questions regarding this transaction, or if we can be helpful in any way, please let us hear from you within six days from this date. Lichtenstein refused to accept this financing arrangement and, because he was dissatisfied with the work Gulf had done, withheld payment. He eventually settled this dispute with Gulf and paid the company $2,500 in accordance with the terms of the settlement agreement. Case No. 89-2206 On or about July 11, 1987, Al Childress, the supervisor of the Code Enforcement Section of the Dade County Building and Zoning Department, received a complaint regarding work purportedly done by Gulf on the Rojas residence located at 18105 N.W. 5th Court in Dade County, Florida. Childress thereafter inspected the premises and discovered that a three-ton air conditioning unit had been installed without a permit first having been obtained. He further ascertained that no formal inspection of the installed unit had been requested. Childress subsequently issued Gulf citations for "unlawfully commencing work on a[n] air conditioning installation without a permit" and "unlawfully contracting for work outside the scope of the certificate of competency." Case No. 89-2207 On January 12, 1987, Bryan Bitner entered into a written contract with Gulf. Gulf agreed to remodel and renovate the kitchen and other parts of the Bitner residence located 571 N.E. 175th Terrace in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $10,216 by Bitner. Work on the project began on February 14, 1987, and ended on April 20, 1987. Although given the opportunity to do so by Bitner, Gulf failed to finish the work it had agreed to perform and, without justification or notice, abandoned the project after having completed only 70% of the kitchen cabinetry work specified in the contract. Neither before nor after the commencement of work on the project were the required building, electrical and plumbing permits obtained. No official inspections of the work done in connection with the project have been requested. Case No. 89-2208 On December 19, 1985, Anthony and Anna Rabeck entered into a written contract with Gulf. Gulf agreed to perform roofing work on the Rabeck's home located at 447 East 7th Street in Hialeah, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,792.00 by the Rabecks. Gulf thereafter subcontracted with Louis Rusty Gordon of Rusty's Roofing to perform work on the project. Gordon performed the work, but was not paid the $600.00 Gulf had agreed to pay him. He therefore filed a lien on the Rabeck's residence in the amount of $600.00 and filed a complaint against Gulf and the Rabecks in Dade County Circuit Court seeking a $600.00 judgment against them. Gordon was ultimately paid the $600.00 by the Rabecks. A roofing permit was never obtained for the work that was done on the Rabeck residence. Furthermore, no official inspection of the work has ever been requested. Case No. 89-2209 On February 21, 1987, James Cox entered into a written contract with Gulf. Gulf agreed to texture coat and to add a screened porch to the Cox residence located at 11621 S.W. 183rd Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $5,700.00 by Cox. The texture coating was completed in late March, 1987. The screened porch was finished in early April, 1987. Upon completion of the entire project, Cox paid Gulf in full in accordance with their contractual agreement. Although a permit was necessary to commence the work on the Cox residence, it was never obtained. In addition, no one requested that the completed work be officially inspected. The screened porch was constructed by a subcontractor, Steve Buzzella. Prior to his undertaking this project, Gulf had agreed to pay him $2,200.00 for such work. Although he satisfactorily completed the project, Gulf did not pay him for his work. Consequently, he filed a lien on the Cox residence in the amount of $2,200.00. Buzzella has yet to be paid the money he is owed by Gulf and the lien remains in effect. Cox has retained legal counsel to assist him in connection with this matter and has already paid $175.00 in legal fees. Case No. 89-2210 On June 30, 1986, Adele Spiegel and her husband David entered into a written contract with Gulf. Gulf agreed in the contract to, among other things, texture coat the Spiegels' residence located at 7380 S.W. 116th Terrace in Dade County, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,500.00 by the Spiegels. The contract further provided that the Spiegels were to receive a "15 year warr[anty] on [the] tex[ture] coat[ing]" work. It also contained the following provision: Contractor guarantees that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed, built or applied in a good workmanlike manner; said labor and materials guaranteed against structural and material defects. Gulf completed the project without obtaining the required permit. Furthermore, no official inspection of the completed project was ever requested. The Spiegels paid Gulf in full for the work it had done. The last of their payments was made on July 10, 1986, following the completion of the project. After this final payment was made, "dark stains" appeared on portions of the texture coating that had been applied to the gable end of the Spiegels' roof. In addition, some of the texture coating started to peel and crack. These problems were caused by the improper application of the texture coating. The Spiegels have advised Gulf of these problems. They have made numerous efforts to have Gulf honor its fifteen-year warranty and correct these problems. These efforts have been to no avail. Gulf has yet to take any corrective action, notwithstanding its obligation to do so under the warranty it gave the Spiegels. Case No. 89-2211 On February 18, 1985, Angelo Bertolino entered into a written contract with Gulf. Gulf agreed to texture coat Bertolino's residence located at 11730 S.W. 175th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,000.00 by Bertolino. Bertolino received from Gulf, as part of their agreement, a fifteen-year warranty on the texture coating similar to the one that the Spiegels were given. Assurances were given to Bertolino that any warranty work that was necessary would be done by Gulf. The Bertolino home was texture coated shortly after the contract was signed. In July, 1987, the texture coating began to crack and peel. Bertolino immediately contacted Gulf to apprise it of the situation and to request that it perform the necessary repairs in accordance with the terms of the warranty it had given him. Receiving no response from Gulf to this initial request, he telephoned the company's offices on almost a daily basis until September, 1987, when a Gulf representative came to his home and did some corrective work. A month later, the area that had purportedly been repaired started to again crack and peel. Bertolino has made Gulf aware of the situation and has sought on numerous occasions to have the company perform the warranty work necessary to correct these problems. Gulf has ignored these requests and failed to honor the warranty it gave Bertolino. Case No. 89-2212 On January 6, 1988, Edward Baum entered into a written contract with Gulf. Gulf agreed to texture coat Baum's residence located at 10921 S.W. 120th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,200 by Baum. The project was completed on January 13, 1988. Upon completion of the work, Baum paid Gulf in full. Textured Coatings of America, Inc. (TCA) supplied Gulf with $583.28 of materials that were used to complete the project. The materials were supplied on credit. Because it had not received payment for these materials, TCA, on March 4, 1988, after giving due notice to Gulf and Baum, filed a lien on Baum's residence in the amount of $583.28. TCA has yet to be paid for these materials and the lien is still in effect. Case No. 89-2213 On February 17, 1987, James Harris entered into a written contract with Gulf. Gulf agreed to install new windows in Harris' residence located at 9730 S.W. 167th Street in Dade County, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,503.20 by Harris. The windows were installed in one day. Although one was needed, no permit was obtained prior to the completion of the project. Furthermore, no official inspection of the completed work has ever been requested. The windows were not installed properly. As a result, they do not close and lock as they should. Harris must put cement blocks on the outside ledges in front of some of the windows and then tape these windows shut to prevent them from falling open. Harris has unsuccessfully sought to have Gulf repair the windows.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of the violations described in paragraph 7, 8, 11, 12, 14, and 16-24 of the foregoing Conclusions of Law; (2) revoking his license as punishment for these violations; and (3) dismissing the charges against Respondent discussed in paragraphs 9, 10, 13, and 15 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1989. STUART M. LERNER 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 8th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2204 THROUGH 89-2213 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department: 1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence inasmuch as it suggests that Lichtenstein was obligated to, and did, make monthly payments of $92.82. Rejected for the same reason as 13, second sentence, above. 15-16. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence to the extent that it asserts that Rojas "had hired Gulf to install an air conditioning unit." Insofar as it describes the complaint received by Childress, it has been accepted and incorporated in substance. Rejected as not supported by persuasive competent substantial evidence inasmuch as it indicates that the work on the Rojas residence was performed by Respondent. First and second sentences: Accepted and incorporated in substance; third sentence: Rejected as more in the nature of argument than a finding of fact. First sentence: Rejected for the same reason as 18 above; second sentence: Accepted and incorporated in substance. Rejected for the same reason as 18 above. 22-28. Accepted and incorporated in substance. Rejected as beyond the scope of the charges to the extent that it addresses the quality of the work that was completed. In all other respects, this proposed finding has been accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence. 31-32. Accepted and incorporated in substance. 33-34. Rejected as not supported by persuasive competent substantial evidence inasmuch as both of these proposed findings are based upon the premise that the Rabeck's paid Gulf in full. 36-44. Accepted and incorporated by reference. 45. Rejected as unnecessary, except for the last sentence, which has been accepted and incorporated in substance. 46-62. Accepted and incorporated in substance. 63. Rejected as unnecessary except to the extent it references the lien filed against the Baum residence. Insofar as it addresses said lien, it has been accepted and incorporated in substance. 65-66. Accepted and incorporated in substance. 67. First sentence: Rejected as unnecessary; second and third sentences: Accepted and incorporated in substance. 68-71. Accepted and incorporated in substance. COPIES FURNISHED: Gregory A. Victor, Esquire Jan L. Darlow, Esquire William Burke, Esquire Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Edward Ryan 169 Lincoln Road Miami Beach, Florida 33139 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
The Issue The principal issue in this case is whether certain local technical amendments to the Florida Building Code adopted by the Broward County Board of Review and Appeals (BORA) comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). As to Broward County, there is the additional issue of whether Broward County is a proper party to this proceeding.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and upon the parties' stipulations, the following findings are made: Findings about status of Broward County Respondent Broward County is a county created pursuant to the laws of the State of Florida. Broward County became a charter county effective on January 1, 1975, by a referendum approved by the voters of Broward County in November of 1974. In 1976, the Broward County Charter was amended to add a new Section 8.18, which the legislative history for the charter describes as establishing BORA as “an arm of Charter government.” Broward County has not voted to adopt any local amendments to the Florida Building Code. Findings about status of BORA Respondent BORA, is a board created under the provisions of the Charter of Broward County (the “Charter”). BORA was originally created in 1971 by a special act of the Florida legislature, 71-575, Laws of Florida, Special Acts of 1971. That special act adopted the South Florida Building Code, as the applicable building code for Broward County and included within the South Florida Building Code as Section 203 the following language, which created BORA: 203. Board of Rules and Appeals. In order to determine the suitability of alternate materials and types of construction, to provide for reasonable interpretation of the provisions of this code and to assist in the control of the construction of buildings and structures, there is hereby created a BORA, appointed by the appointing authority, consisting of twenty-four (24) members who are qualified by training and experience to pass on matters pertaining to building construction. Findings about status of Petitioners Petitioner, TRG-Aquazul, Ltd. ("TRG"), is a Florida limited partnership and is the developer of a high-rise multi- family residential building project located in Broward County (“Project”) which is subject to the Florida Building Code, as amended, in Broward County. Petitioner, Alfonso Fernandez-Fraga, is a principal of Initial Engineers. Mr. Fernandez-Fraga and Initial Engineers are the mechanical engineers of record on the Project. Mr. Fernandez-Fraga's firm has designed other high-rise residential buildings in Broward County in the past and plans on doing more such projects in the future. Petitioners allege that they will be materially and adversely affected by the application of the Broward County local technical amendments to the Florida Building Code in that the application of said technical amendments to the Project will require a redesign of the mechanical systems of the Project to comply with those technical amendments and undertaking such redesign will cost significant time and money. Alfonso Fernandez-Fraga submitted plans to the Broward County Building Department for approval in connection with the Project. The plans submitted included plans for smoke control measures. The smoke control measures were not approved by the chief mechanical official because in his estimation they did not comply with the local technical amendments to the Florida Building Code enacted by BORA on March 1, 2002. Despite the Broward County Building Official’s suggestion that Mr. Fernandez-Fraga appeal the Building Official’s decision interpreting the applicable code, Mr. Fernandez-Fraga decided not to appeal that decision. Rather, Mr. Fernandez-Fraga chose to challenge the validity of the local technical amendments to the Florida Building Code adopted by BORA, a different appeal than the one discussed with the Building Official. TRG, through its engineer and its architect of record on the project, attempted to comply with option four of the local technical amendments at issue here, which allows one to achieve an understanding with the local building official on an alternative method for smoke control. TRG could not, and did not, reach that understanding with the Broward County Building Official. The building that TRG proposes to build is over 75 feet high, which makes it subject to the local technical amendments at issue here. At the time the local technical amendments at issue here were being adopted, Petitioners were not concerned with such developments because at that time they did not have any projects in Broward County. Findings about BORA's amendment process Once it was clear that Florida was going to have a new statewide Florida Building Code, BORA embarked upon a course of action to adopt several local technical amendments to the Florida Building Code. Such amendments were allowed, with certain qualifications and requirements, by the then-new statutes providing for the implementation of a new Florida Building Code. On March 1, 2002, BORA adopted the local technical amendments that are at issue here. Those two local technical amendmants, Sections 412 and M403.6.4, contained standards for the application and testing of smoke control systems for high-rise buildings. The two amendments were more stringent than the corresponding requirements in the Florida Building Code. Each of these local technical amendments had been part of Broward County’s local building code in effect prior to the adoption of the Florida Building Code, and as set forth in the South Florida Building Code, Broward Edition. BORA sought to maintain the status quo within Broward County with respect to the adoption of these two local technical amendments to the Florida Building Code, a status quo that had been in effect since the mid 1980's. The two local technical amendments at issue here did not introduce any new subjects that had not previously been contained in the South Florida Building Code, Broward Edition. The process leading up to the adoption of amendments on March 1, 2002, began several months earlier with the appointment of a committee and a sub-committee to discuss and draft proposed amendments. The chairman of BORA’s Mechanical Committee appointed a subcommittee which reviewed materials and made decisions with respect to the Local Amendments and made recommendations to the Mechanical Committee which, in turn, made recommendations to BORA The meetings of BORA’s Mechanical Committee and its Smoke Control Subcommittee were not publicly noticed in the Sun Sentinel or any other local newspaper of general circulation. No findings or determinations made by BORA’s Mechanical Committee or Smoke Control Subcommittee with respect to the local need to enact the Local Amendments are reflected in the minutes of their meetings. On December 13, 2001, BORA held a hearing to receive and consider information from the subcommittee and the committee regarding the pending proposed amendments. BORA’s December 13, 2001 hearing was not publicly noticed in the Sun Sentinel or any other local newspaper. Final BORA action to adopt the proposed amendments was eventually scheduled for March 1, 2002. The March 1, 2002, BORA meeting was the only BORA meeting pertaining to the local technical amendments at issue here that was publicly noticed in the Sun Sentinel or any other local newspaper. BORA did not make any findings or determinations at the March 1, 2002, meeting. There was no discussion or determinations made at the March 1, 2002, hearing regarding whether there was a local need justifying the subject local technical amendments. There was no discussion at the March 1, 2002 hearing regarding the subject local technical amendments. At the March 1, 2002, meeting, BORA determined that what its Mechanical Committee presented was acceptable and BORA therefore voted to adopt it without any meaningful discussion. BORA did not make any other determinations with respect to the local technical amendments at that hearing. The members of the Florida Building Commission’s Mechanical and Technical Advisory Committee, which drafted and/or made recommendations with respect to the Florida Building Code, are presently considering the possibility of putting more stringent smoke control measures into the Florida Building Code for statewide application. Findings about the challenge process Broward County does not have, and has never had, an interlocal agreement establishing a countywide compliance review board for the purpose of reviewing any challenges to local technical amendments to the Florida Building Code that may be challenged by a substantially affected party. Neither Broward County, per se, nor any of the municipalities in Broward County, is authorized to exercise any authority over the building code in Broward County. In light of this situation in Broward County it appears to have been the concensus of the members of BORA that it was simply not necessary to structure any interlocal agreement nor create any county-wide compliance review board as otherwise generally provided for in the applicable statutory provisions. Thus, when Petitioner Fernandez-Fraga advised BORA that he wished to challenge the validity of two of the local technical amendments adopted by BORA, it was initially unclear where the challenge should be filed and where it should be heard. Following discussion with Commission staff, BORA advised that the challenge should be filed with BORA and would be heard by BORA. On or about March 20, 2003, Petitioners filed an appeal with BORA challenging the validity of the subject amendments. BORA scheduled a hearing on the challenge for April 10, 2003. BORA was apparently of the initial view that it was hearing the Petitioners' appeal in the capacity of a statutory "countywide compliance review board" because BORA originally noticed the April 10, 2003, hearing as being held by “the Board of Rules and Appeals sitting as a Countywide Compliance Review Board pursuant to Florida Statutes 553.73(4)(b) to hear challenges to Broward County Local Amendments to Sections 412 and M403.6.4 by Mr. Alfonso Fernandez-Fraga, P.A.” Notwithstanding the notice and agenda of the April 10, 2003, BORA meeting/hearing, during the course of the hearing BORA took the position that Broward County does not have a countywide compliance review board as described in Section 553.73(4)(b)8, Florida Statutes. Counsel for BORA stated, on the record, that BORA “has exclusive authority over the building code in Broward County.” Counsel then advised the Board: That statutory section which refers to an interlocal agreement applies to counties where the county and municipalities have the authority to amend the code. In Broward County, the municipalities and the county do not have that authority. Therefore, we don’t have a Compliance Review Board in Broward County because it’s just not authorized because we operate on a different procedure here. The Board of Rules and Appeals has the sole authority to amend the code, so we’re hearing this appeal tonight really as an appeal to reconsider whether the action of this board in March of 2002, when you passed these amendments, were done properly, and that’s the sole issue. The appeal was heard by BORA on April 10, 2003. BORA voted unanimously to deny the appeal. Mr. Fernandez-Fraga promptly received a letter from James DiPietro advising him that the appeal had been rejected. Thereafter the Petitioners timely filed their petition seeking relief from the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which concludes that, for the reasons set forth above, the local technical amendments adopted by BORA which are challenged in this case fail to comply with the requirements of Section 553.73(4)(b)1, Florida Statutes (2001), and are invalid local technical amendments, and further concluding that Broward County is not a necessary or appropriate party to this proceeding. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of June, 2003.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been certified by Petitioner as a building code administrator in the State of Florida. On April 5, 1993, Respondent began his employment with Metropolitan Dade County, Florida, as the permit control division chief in the County's Department of Building & Zoning, now known as the Department of Planning, Development and Regulation. Carlos Bonzon was the head of the County's Department of Building & Zoning and also served as the County's Building Official. The Port of Miami is another department within Metropolitan Dade County. At all times material hereto, Carmen Lunetta was the head of that department. The County desired to expand Terminals 8 and 9 at the Port of Miami to accommodate a Carnival Cruise Lines mega-cruise ship, anticipated to arrive in March 1996. The County was concerned that if it could not offer the taller terminal required for such a large ship, the ship would utilize Port Everglades instead of the Port of Miami. For purposes of construction, Terminals 8 and 9 were "threshold" buildings. A threshold building is one which is of such magnitude or complexity that the construction requires continuous inspections. Those continuous inspections are performed by the on-site "threshold inspector," the engineer of record, who keeps a log of the on-going inspections. The expertise required of a threshold inspector is beyond that of most County field inspectors. When a threshold inspector is involved, the County's inspectors check to make sure the log is being kept up-to-date and on-site. On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit. While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code. Construction work began on Phase I, the foundation for Terminals 8 and 9. By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time." By letter dated June 29, 1995, Port Director Lunetta again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time." There is no such permit as a conditional permit under the South Florida Building Code. In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project. As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project. On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only." Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits. All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only. At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official. On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control Division Chief. In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative. Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans. Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete. Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued. Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule. He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code. On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed. In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety. On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9. There was never any danger to the public as a result of the construction of Terminals 8 and 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998. COPIES FURNISHED: Diane Snell Perera, Esquire Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N607 Miami, Florida 33128 Gary B. Goldman, Esquire Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Jose Ramone Garcia obtained a building permit for the purpose of aiding an uncertified or unregistered person to evade the provisions of Part 2, Chapter 468, Florida Statutes.
Findings Of Fact Jose Ramone Garcia holds a license as a general contractor issued by the Florida Construction Industry Licensing Board and is licensed as doing business as Gabros Construction. Jose Ramone Garcia, on or about April 26, 1974, obtained a building permit No. 74-1006 issued by Collier County Building Department to build a home at 378 Seabee Avenue, Vanderbilt Beach, Florida. The home at 378 Seabee Avenue, Vanderbilt Beach, Florida, was built by Roger Dulaney, an unlicensed person, who had contracted verbally to build said home with Mr. William E. Young, the owner of the real property. Jose Ramone Garcia obtained the building permit No. 74-1006 with money given to him by Roger Dulaney, but Jose Ramone Garcia did not receive any compensation for his assistance to Roger Dulaney. Jose Ramone Garcia did not contract with William E. Young to build the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia did not contract with any of the subcontractors or materialmen for services or goods used in the construction of the home at 378 Seabee Avenue, Vanderbilt Beach, Florida. Jose Ramone Garcia was frequently at the construction site at 378 Seabee Avenue and did oversee the construction which Dulaney directed. Garcia did insure that all construction work done was in accordance with the specifications and plans and the building code of Collier County. All work on the home at 378 Seabee Avenue was inspected and approved by the building authorities of Collier County. With several minor adjustments, the construction was acceptable to the owners. The major problem involved with the house constructed at 378 Seabee Avenue involved the contract price of the home arrived at between Dulaney and Young. Garcia did not negotiate the contract of the construction of the house at 378 Seabee Avenue and had no knowledge of the contract price. The dispute between Dulaney and Young resulted in court action between these parties which resulted in a judgment by the court in the favor of Dulaney. Jose Ramone Garcia has been unable to obtain a building permit as a contractor in Collier County since the filing of the Administrative Complaint in January, 1976. Garcia currently resides in Collier County.
Recommendation Because the licensing privilege of Garcia has already been effectively suspended for 14 months, which is a substantial period of suspension, the Hearing Officer does not feel that a further suspension would be of any benefit. The Hearing Officer would recommend that a civil penalty of $500 be assessed against Garcia based upon the foregoing findings of fact and conclusions of law. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire Jacobs, Sinoff, Edwards, Alford & Burgess Post Office Drawer I Fernandina Beach, Florida 32034 Jose Ramone Garcia 9341 S. W. 38th Street Miami, Florida J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent's license as a certified residential contractor should he suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 489, Florida Statutes, as set forth in Administrative Complaint, dated July 12, 1982. This case was consolidated for hearing with Department of Professional Regulation, Electrical Contractors' Licensing Board v. Raymon E. Johnson, DOAH Case No. 82-2394, pursuant to Rule 28-5.106, Florida Administrative Code. Respondent appeared at the hearing without legal counsel and, after being advised by the Hearing Officer as to his rights to counsel and as to procedures involved in an administrative proceeding, acknowledged that he understood such rights and elected to represent himself. At the commencement of the hearing, Petitioner moved to amend paragraphs 6, 11, 16 and 19 of the Administrative Complaint to correct a typographical error by changing the statutory provision allegedly violated from Section 489.129(1)(c) to 409.129(1)(d) , Florida Statutes. Respondent did not object to the amendment and it was therefore granted. This proceeding involves allegations by Petitioner that Respondent constructed several residences in Sarasota, Florida from 1979 to 1981 without subcontracting electrical, mechanical, and plumbing portions of the buildings in violation of pertinent pro- visions of Chapter 489, Florida Statutes, and that he further practiced electrical contracting with an inactive license and in a county where he was not properly registered, also in violation of Chapter 489, F.S. Petitioner presented the testimony of four witnesses at the hearing, and submitted nine exhibits in evidence. Respondent testified in his own behalf and submitted three exhibits.
Findings Of Fact Respondent Raymon E. Johnson is a certified residential contractor and was so licensed at all times material to the matters alleged in the Administrative Complaint. He was also registered by the Electrical Contractors' Licensing Board as an electrical contractor on April 9, 1979, but such license was not renewed and became delinquent on July 1, 1980. During the valid licensing period, he was registered to perform contracting in Gainesville, Florida and Alachua County. (Stipulation, Petitioner's Exhibit 1) At an undisclosed date, Respondent, a resident of Gainesville, Florida, purchased a lot at 505 South Shore Drive, Sarasota, Florida. On November 30, 1979, Respondent applied to the Building Construction Department of Sarasota County for an owner's building permit to construct a residence on the lot, and the permit was issued on December 14, 1979. The application and permit form provided that if the applicant did not possess a contractor's license and was constructing a single family residence on his land, such structure could not be offered for sale or sold during the valid existence of the current building permit, and that all contracted services must be with licensed contractors. Respondent completed construction of a residence on the property in the spring of 1980, and sold it on or about May 10, 1980. During construction of the house, Respondent had placed a sign on the property which stated "Custom Homes by Ray Johnson." Respondent constructed the home himself and did not subcontract any of the work. (Testimony of Respondent, Petitioner's Exhibits 2, 4, 8) In 1980, Respondent purchased a lot at 3625 Beneva Oaks Boulevard, Sarasota, Florida, and obtained an owner's building permit from Sarasota County on August 7, 1980, to construct a residence there. During construction, Respondent had a "For Sale" sign on the premises. Officials of the Sarasota County Building Construction Department informed him that he would have to take the sign down, and he did, until receiving the certificate of occupancy in early 1981 when he again placed the sign on the property. Respondent sold the house on August 8; 1981. The permit issued for construction contained the same prohibition against offering the property for sale or selling it during the existence of the building permit. Respondent constructed the house himself and did not utilize subcontractors. (Testimony of Respondent, Hayek, Taylor, Petitioner's Exhibits 2-3, 6, 9) On February 2, 1981, Harry W. Mathley obtained an owner's building permit from the Sarasota County Building Construction Department to construct a residence at 3759 Beneva Oaks Boulevard, Sarasota, Florida. Mathley entered into an oral contract with Respondent to perform the framing, electrical and plumbing work on the house. At the time, Respondent told Mathley that he was not licensed in Sarasota County to perform electrical and plumbing work. Mathley paid Respondent a lump sum for the electrical materials and work. Mathley paid for a portion of the plumbing fixtures himself, and paid Respondent a lump sum for the remainder of the fixtures and for the plumbing work. Mathley indicated on a county Subcontractors Verification Form1 prior to issuance of the building permit, that he would perform the electrical and plumbing subcontracting himself. During the course of construction, Mathley permitted Respondent to place a sign "Custom Homes by Ray Johnson" on the property to help him get business. Officials of the County Building Department placed a stop order on the premises on May 11, 1981, which recited that the reason for such notice was that subcontractors were not licensed. Respondent went to the Building Department where the supervisor of licensing explained to him that his sign did not correspond to the owner's building permit taken out by Mathley. Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Hayek, Mathley, Respondent, Petitioner's Exhibits 2, 6, Respondent's Exhibit 1.) On March 6, 1981, Robert L. Rogers obtained an owner's building permit from the Sarasota County Building Construction Department to construct a residence at 3735 Beneva Oaks Boulevard, Sarasota, Florida. On the Subcontractors Verification Form which was completed prior to obtaining the building permit, Rogers stated that the electrical and plumbing work was to be performed by himself as owner. He entered into an oral contract with Respondent to do the framing, electrical and plumbing portions of the house and paid him in a lump sum for this work. Respondent advised him that he was not licensed to perform electrical and plumbing contracting in Sarasota, but was qualified in another county. Respondent performed the electrical and plumbing work as provided in the oral contract. (Testimony of Rogers, Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 2) Section 113.1 of Sarasota County Ordinance No. 80-90 makes it unlawful for any person to do any construction work in the various trades, including electrical and plumbing, unless he holds an active Sarasota County Operating Certificate, in addition to an applicable Sarasota County Certificate of Competency and State of Florida Registration, or a valid certification by the Florida Construction Industry Licensing Board. The ordinance further provides in that section that no person who is to perform all construction work on his own building is required to hold an operating certificate, provided that the building is for his own single family residence and the required permit is issued. It further provides that the hiring out by "day labor" in order to avoid operating certificate requirements shall be deemed a violation of the ordinance. Section 106.3(c) of the ordinance provides that all work contracted for under a construction permit shall be performed by contractors holding operating certificates for the particular trade involved. Respondent did not hold an operating permit or certificate of competency from Sarasota County at the time he did the work on the residences of Mathley and Rogers. (Testimony of Hayek, Petitioner's Exhibit 5) Respondent testified at the hearing that he had originally intended to build the residences at 505 South Shore Drive and at 3625 Beneva Oaks Boulevard as personal residences and to move his family from Gainesville to Sarasota when his daughter completed high school in the spring of 1981, but that he was unable to do so because of financial difficulties involving unsold houses in Gainesville. However, he conceded that "Well, I am a builder. Any house that I build is for sale." He further testified chat he had resided for several days a week in the residence at 3625 Beneva Oaks Boulevard from the period after it was completed until it was sold. (Testimony of Respondent, Respondent's Composite Exhibit 3)
Recommendation That the Construction Industry Licensing Board suspend he license of Respondent Raymon E. Johnson as a certified residential contractor for a period of three (3) months. DONE AND ENTERED this 2nd day of December, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1982. COPIES FURNISHED: John O. Williams, Esquire Department of Professional Regulation 547 North Monroe Street, Suite 204 Tallahassee, Florida 32301 Raymon E. Johnson P. O. Box 13981 Gainesville, Florida 32604 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NO. 0015275 DOAH CASE NO. 82-2393 RAYMON E. JOHNSON CR C004461 612 101ST Street Gainesville, Florida 32604 Respondent. /
