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. /
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent H. James Lentz was a certified general contractor licensed by the State of Florida. At a special Board meeting of the Leon County Licensing and Examination Board (Leon County Board) held on July 26, 1979, the County Building Inspection Department requested an opinion as to whether to bring respondent Lentz before the Leon County Board on charges of abandonment and violations of the Building Code. The Leon County Board voted to have its Executive Secretary, James Courtney, advise respondent to appear before it and advise him that his County license was susceptible to revocation. By a registered letter dated August 14, 1979, Mr. Courtney advised respondent that a complaint had been filed against him, requested him to appear before the Leon County Board on August 30, 1979 and advised him that he had the right to be represented by counsel at the hearing. By letter dated August 23, 1979, attorney John A. Barley informed Mr. Courtney that he would be representing respondent and requested that the Board reschedule the matter for hearing during its next meeting after the August 30th meeting. Mr. Courtney approved Mr. Barley's rescheduling request by letter dated August 27, 1979. Respondent and Mr. Barley appeared before the Leon County Board at its September 27, 1979 meeting. After Mr. Courtney orally informed the Board as to the nature of the complaints against the respondent, counsel for the respondent requested that the complaint be issued in writing, listing dates, locations and violations. The Board agreed to issue a formal written complaint and advised respondent and his counsel that the Board would expect a response to the complaint at its October 25, 1979 meeting. By letter, with attachments, dated November 1, 1979, the Assistant County Attorney, O. Earl Black, Jr., advised respondent through his attorney that the complaints concerned three specific projects, explained the specific code violations on each project and also notified respondent that he had either removed himself or was removed by the owners from each of the three projects without notifying the Building Inspection Department that he was no longer associated with the project. Respondent, through his counsel, was further advised that he would be expected to respond to the complaints and that the next meeting of the Leon County Board would be November 29, 1979. Neither the respondent nor his counsel, Mr. Barley, appeared at the November 29, 1979 Leon County Board meeting. The Board discussed at length the complaint of abandonment and noncompliance with the Building Code, and voted to revoke respondent's Leon County Contractor's license. By certified letter dated December 5, 1979, respondent and his attorney were notified that the Leon County Board, at its meeting of November 29, 1979, revoked respondent's certified general contractor's license for use in Leon County for "noncompliance of code and abandonment." Mr. Courtney notified his Plans Examiner, Permit Clerk and Supervisor of Inspections by interoffice memorandum dated December 6, 1979, that respondent's license had been revoked for use in Leon County. The purpose of this notice was to notify them that they were not to process or issue any permits to respondent or make any inspections on any other premises after that date. By letter dated December 10, 1979, Mr. Barley acknowledged receipt of the December 5, 1979, letter notifying him of the Board action taken at the November 29th meeting, and requested a copy of the Board minutes from that meeting. These minutes were sent to him by letter dated December 27, 1979. On January 11, 1980, Mr. Barley requested that the Leon County Board rehear the complaints against respondent and reconsider its decision to revoke respondent's license. The Board agreed to rehear the matter at its February, 1980 meeting. Apparently, the Board requested additional information at its February meeting and the matter was again rescheduled for the April, 1980 meeting. On April 24, 1980, respondent and his attorney, Mr. Barley, appeared before the Leon County Board for a rehearing. Respondent produced evidence to the Board that certain violations had been corrected, that one of the three projects was in litigation and that termination and settlement agreements had been entered into on the other projects. Thereafter, the Leon County Board reduced the prior revocation of respondent's license to a suspension for a period of nine months, said suspension to be retroactive to November 29, 1979, and to end on August 29, 1980. By certified letter dated April 28, 1980, respondent was advised of the Leon County Board's action taken at its April 24th meeting rescinding its prior action and suspending his license for nine months. Attorney Barley sent a letter dated April 28, 1980, to Assistant County Attorney Black confirming his understanding of the action taken by the Board on April 24, 1980. No further action was taken by respondent concerning the action of the Leon County Board until June of 1982. At that time, respondent sent a letter dated June 24, 1982, requesting the Board to rehear its action of November 29, 1979, as revised on April 24, 1980. Respondent withdrew his request for rehearing by letter dated September 14, 1982.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of a violation of Section 489.129(1)(i), Florida Statutes, and that an administrative fine be imposed against him in the amount of $500.00. Respectfully submitted this 7th day of June, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of June, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Mr. James Linnan Department of Professional Executive Director Regulation Construction Industry 130 North Monroe Street Licensing Board Tallahassee, Florida 32301 Post Office Box 2 Jacksonville, Florida 32202 Bruce P. Anderson, Esquire John A. Barley & Associates,P.A. Mr. Fred Roche P. O. Box 10166 Secretary Tallahassee, Florida 32303 Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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 =================================================================
