The Issue Whether Respondent's registration as a general contractor should be suspended or revoked, or the respondent otherwise disciplined, for alleged violations of Sections 468.112 (2)(a), (2)(g), and (2)(h), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner Phillip H. Bare, Ocala, Florida, is registered with Respondent as a general contractor under the provisions of Chapter 468, Florida Statutes, and was so registered throughout the year of 1977. He operates under the name of American General Corporation of Florida, but that firm has not been qualified to engage in the contracting business in Florida, pursuant to Section 468.107, Florida Statutes. (Petitioner's Exhibits 1, 2, Stipulation, Testimony of Cherry) On August 15, 1977, Respondent, as president of American General Corporation of Florida, entered into a Home Improvement Installment Contract and Note with Joe Wheeler and wife, who reside at Route 2, Box 63, Live Oak, Florida. The contract provided that for a price of $4,250 Respondent would make the following property improvements on the Wheeler residence: Build 12 X 20 Room Addition and finish with paneling, ceiling tile, & all trim. Build 6 X 14 porch with top. Replace all Rotten sills. Replace all Rotten siding. Paint house with latex paint. Repair floor joist. The Wheelers made a down payment of $350 leaving an unpaid balance of $3,900. The promissory note provided for a total financed cost of $6,629.28 payable in monthly payments over a period of seven years. On August 29, 1977, the parties entered into another such contract for additional work to the residence for the price of $1,600 as follows: Install ceiling tile in (2) bed rooms and bathroom complete with trim. Install paneling in (2) bed rooms complete. Install paneling and tile board in bath. Remove old shingles and install new 235lb asphalt shingles. Install 54" kitchen sink complete and hook to water. The Wheelers paid $100 as a down payment on the work and financed the remainder with a total deferred price of $2,100 payable in 48 consecutive monthly installments. (Petitioner's Exhibits 5, 6, Testimony of E. Wheeler, J. Wheeler) Respondent subcontracted the work on the Wheeler residence to one John Compton. Respondent did not secure a Suwannee County Building Permit for the work, nor was he licensed in that county to act in the capacity of a contractor. (Testimony of Respondent, Wilson) On September 12, 1977, Mr. Wheeler signed a Customer's Completion Certificate" wherein he acknowledged that the contract work had been satisfactorily completed. Although Respondent testified that he explained the contents of the document to Wheeler at the time it was executed, Wheeler denied the same and testified that he had not read its contents prior to signing it. (Testimony of Respondent, J. Wheeler, Respondent's Exhibit 1) Prior to completion of the work, the Wheelers noted that certain deficiencies in the work existed, including a floor that "shaked" in the new addition, looseness of wall paneling, failure to replace rotten siding and lower sills, and failure to install ceiling tile in one bedroom. They spoke to workmen on the job who said that they would return and finish the work. However, nothing further was done in spite of the fact that Respondent told Mrs. Wheeler in a telephone conversation that he would be back to complete the job. As a result, Mrs. Wheeler made a complaint to Derl W. Wilson, the building official for Suwannee County. (Testimony of E. Wheeler, J. Wheeler, Wilson) Pursuant to Mrs. Wheeler's complaint, Wilson inspected the premises at some time during the month of September, 1977, and observed that the accomplished work was of a substandard nature involving various violations of the Southern Standard Building Code which had been adopted by Suwannee County in 1975. These violations, which Respondent acknowledged at the hearing to have been committed, included the following: concrete foundation blocks improperly aligned and unsupported by required concrete pad; improper spacing of floor joists at 24 inch rather required 16 inch intervals; use of one-ply instead of two-ply flooring material; failure to extend vent stack for plumbing system in kitchen to a height of 6 inches above the roof line; failure to provide a shutoff valve for cold water line under kitchen sink; failure to cover and protect splices in wiring of ceiling light fixture; failure to install ridge board for support of roof rafters; improperly installing two inch by four inch wood braces in attic; failure to connect sewer line to septic tank. Additionally, Wilson observed various instances of poor workmanship in installation of an electric wall receptacle and connection of the roof of the new addition to the existing building. Further, he noted that due to the improper spacing of floor joists, the substandard plywood flooring was not firm and constituted a safety hazard. (Testimony of Wilson, Petitioner's Composite Exhibit 3) After his inspection, Wilson wrote a letter to Respondent, dated October 18, 1977, pointing out the deficiencies in construction and advising that a complaint would be filed against him unless a building permit was obtained within ten days and the necessary corrections of deficiencies were made. Although Wilson testified that he did not hear from Respondent as a result of the letter, Respondent made several telephone calls to Wilson's office and was informed that he was on vacation. (Testimony of Wilson, Respondent, Respondent's Exhibit 7) On June 14, 1978, Respondent entered a plea of guilty in the County Court of Suwannee County, Florida to a charge of improper construction arising out of the Wheeler contract, and the Court withheld adjudication of guilt in the matter. (Petitioner's Exhibit 9) Respondent was previously convicted in the County Court of Putnam County, Florida, on August 13, 1974 of engaging in the business or acting in capacity of a contractor without being duly registered in the county pursuant to Section 468.105(2), Florida Statutes. On June 16, 1975, Respondent pleaded nolo contendere in the County Court of Alachua County, Florida to a charge arising out of his activities as a home improvement contractor. The Court withheld adjudication of guilt and placed the Respondent on probation for a period of six months and required that he "make necessary repairs to home of victim to satisfaction of Consumer Protection Section of State Attorney's Office, Eighth Judicial Circuit." (Petitioner's Exhibits 7-9) Petitioner has been a building contractor for twelve years. He testified that his subcontractor for the Wheeler job had been competent in the past and he relied on this fact in not closely inspecting the work under the Wheeler contracts. For this reason, he was unaware that the building code violations had occurred until after he had sold the Wheeler contracts and mortgages to a third party who was contacted by the Wheelers regarding the deficiencies. Respondent denied that he abandoned the work because he thought it had been completed until subsequent notification of the Wheeler complaint. He has since made attempts through Counsel to resolve the complaint by having the work performed by a contractor licensed in Suwannee County or by means of a monetary settlement. He further testified that he had inquired of Petitioner's office as to the necessity for obtaining a Suwannee County license prior to commencing the Wheeler contracts and was informed that his registration was valid for work in that county. He acknowledged that he made a "mistake" in not obtaining a building permit and in failing to supervise his subcontractor properly, but stated that the licensing rules in the various counties were "confusing." As to his prior difficulties in Putnam and Alachua Counties, Respondent testified that the Alachua matter involved a complaint raised four or five years after construction regarding quality of workmanship and that he had taken care of the matter. As to the Putnam County case, he testified that he was unaware that a building permit was necessary at the time he did the work for which he was subsequently prosecuted. It is found that Respondent's exculpatory testimony regarding his failure to obtain a building permit or county licensing, and lack of knowledge of code violations with respect to the work performed at the Wheeler residence is not credible. (Testimony of Respondent, Respondent's Exhibits 2-6)
Recommendation That Respondent's registration as a general contractor be suspended for a period of one year and that an administrative penalty in the amount of $500 be imposed, for violation of Section 468.112(2)(a), Florida Statutes. DONE and ENTERED this 23rd day of March, 1979, 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 23rd day of March, 1979. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 C. Valentine Bates, Esquire 726 NW 8th Avenue - Suite B Gainesville, Florida J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621
The Issue The issue posed for decision herein is whether or not Respondent engaged in acts and/or conduct, which will be set forth hereinafter in detail, in violation of Chapter 489, Florida Statutes, as alleged by Petitioner in its Administrative Complaints filed herein dated December 1, 1981, and March 8, 1982. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact By its Administrative Complaints filed herein, Petitioner charges Respondent with three counts of deliberately disregarding the applicable building code, in violation of Section 489.129(1)(d), Florida Statutes (1979), presently codified as Section 489.129(1)(d), Florida Statutes (1981); with violation of Section 489.129(1)(k), Florida Statutes (1979), in that he abandoned a construction project; with violation of Section 489.129(1)(m), Florida Statutes (1979), presently codified as Section 489.129(1)(m), Florida Statutes (1981), in that he is guilty of fraud or deceit or misconduct in the practice of contracting; with violation of Section 489.129(1)(c), Florida Statutes (1979), presently codified as Section 489.129(1)(c), Florida Statutes (1981), to wit: Section 455.227(1)(a), Florida Statutes (1979) in that he is guilty of a misleading, deceptive, untrue or fraudulent representation in the practice of contracting; with violation of Section 489.129(1)(j), Florida Statutes, to wit: Section 489.117(2), Florida Statutes (1979), in that he was engaging in the practice of contracting in a county where he was not properly registered; with violation of Section 489.129(1)(e), Florida Statutes (979), presently codified as Section 489.129(1)(e), Florida Statutes (1981), in that he aided or abetted an unlicensed person to evade the provisions of the contracting license law; with violation of Section 489.129(1)(f), Florida Statutes (1979), presently codified as Section 489.129(1)(f), Florida Statutes (1981), in that he knowingly combined or conspired with an unlicensed person and allowed his registration to be used by an unlicensed person with the intent to evade the provisions of the contracting license law; with violation of Section 489.129(1)(g), Florida Statutes (1979), presently codified as Section 489.129(1)(g), Florida Statutes (1981), in that he acted in the capacity of a contractor in a name other than as registered; with violation of Section 489.129(1)(j), Florida Statutes (1979), presently codified as Section 489.129(1)(j), Florida Statutes (1981), to wit: Sections 489.119(2) and (3), Florida Statutes (1979), in that he failed to properly qualify a company under which he was doing business. In support of the allegations in the Administrative Complaint filed in Case No. 82-1554, Petitioner presented the testimony of Newton B. Webb and Lewis Abbott, and introduced three (3) exhibits into evidence. Respondent testified on his own behalf and introduced no exhibits. In support of the allegations in the Administrative Complaint filed in Case No. 82-1645, Petitioner presented the testimony of Gladys Durden, Carolyn Thomas, and Cory M. Henriksen and introduced four (4) exhibits. Respondent testified on his own behalf and presented the testimony of Abe Anderson. Respondent introduced one (1) exhibit. Respondent is a registered residential contractor having been issued license No. RR0022063. That license was initially issued during 1976 and is current through calendar year 1983. On February 17, 1983, (Case No. 82-1554), Respondent entered into a contract with Newton B. and Flora Mae Webb to construct a fireplace in their trailer for the sum of $1,725. (Petitioner's Exhibit 1) The contract was on a letterhead indicating that the Respondent was doing business as James Construction Company. The fireplace was subsequently constructed by the Respondent and payment was made in full. (Stipulation of counsel, TR p. 10). Respondent did not obtain a building permit to construct the fireplace for the Webbs. The Southern Standard Building Code, which is the building code that was being enforced in Wakulla County, Florida, during times material when the fireplace for the Webbs was being constructed, contains a provision which requires that a permit be obtained for the construction of a fireplace. (TR p. 16; Section 106.1, Southern Standard Building Code.) Respondent is not licensed to engage in the practice of contracting in Wakulla County. The site of the Webb home, where the Respondent constructed the fireplace in question, is in Wakulla County. Respondent has not qualified James Construction Company as the entity through which he would engage in the practice of contracting in Wakulla County. Following completion of the fireplace for the Webbs, Mr. Webb complained that the fireplace was improperly constructed in that smoke poured from the hearth in a profuse manner. Mr. Webb complained that his fire detection alarm was constantly triggered by the smoke pouring out of the chimney. Respondent returned to the Webbs' residence and checked the fireplace and its operation on at least three occasions. On the fourth occasion, Respondent returned to the Webb residence with his counsel and an official from the City of Apalachicola, Florida. A small fire with paper was started and Respondent demonstrated to the Webbs, his attorney, and the building official how the damper in the fireplace operated and what Mr. Webb was doing wrong in the operation of the damper. Respondent gave Mr. Webb and those in attendance a brief demonstration in the proper and correct manner in which the damper should be opened so that the chimney vented properly. During that demonstration, the chimney did not smoke. During an inspection by the building official, Lewis Abbott, the following violations of the Southern Standard Building Code were observed: The chimney did not extend three feet above the roof of the residence. The foundation of the fireplace did not comport with the minimum requirements of the Southern Standard Building Code. The liner between the wall and the flue of the chimney was approximately 3-1/2 inches, whereas the minimum thickness required by the Southern Standard Building Code is 8 inches. A smoke chamber was not installed. The outside chimney was constructed against a combustible wall and the one-inch minimum clearance requirement was not met. The hearth was of insufficient size and was not supported sufficiently by a foundation that meets the minimum requirements of the Southern Standard Building Code. (TR p. 17) It is found that these conditions existed at the Webb residence at the time of Inspector Abbott's inspection. On September 30, 1979, (Case No. 82-1645), Respondent entered into a contract with Gladys M. Durden to rehabilitate her residence for the sum of $12,000. (Stipulation of counsel and TR p. 65). Respondent agreed inter alia, to repair the plumbing; install new flooring; build an extra room; install a new kitchen sink and cabinet; install vinyl floors as needed; and replace several windows and doors. According to Ms. Durden and Carolyn Thomas, Manager of the Federal Block Grant Program, the principal items which the Respondent failed to complete and/or correct centered around problems with the plumbing and his failure to install new flooring in the bathroom. Payment for the construction to the Durden residence was made by draws from the Block Grant Program and Respondent received payment based on two-party checks, which required, for negotiation, that both payees (Respondent and the homeowner-- Gladys Durden) sign the check. At the time Respondent presented the check representing final payment for construction to the Durden residence, Ms. Durden refused to sign it based on her claim that Respondent had failed to complete all of the work as contracted. Respondent presented the check for payment, which was honored, at the local bank in Apalachicola even though it was not endorsed by Ms. Durden. Prior to receiving payment for the final phase of the work to the Durden residence, Respondent had the construction on the Durden residence checked by the local building officials and a certificate of occupancy was issued which enabled Respondent to receive final payment for the Durden project from the City of Apalachicola's Block Grant Program. After negotiating the check representing the final payment for construction work done to the Durden residence, Respondent did not return to the site despite notification from the City Attorney of Apalachicola, the Block Grant Administrator, Carolyn Thomas, and phone messages received from Ms. Durden. Respondent encountered numerous problems while in the construction phase on the Durden residence. Ms. Durden had ten (10) children living in her home at the time construction was ongoing and, as a result, Respondent had to redo several phases of the work which had been previously done days earlier based on the number of residents living in the Durden home. Respondent did not return to the Durden residence based on his fear that Ms. Durden believed in "voodoo" and his position that he had completed all that was required by him pursuant to the contract. Respondent utilized the services of a plumber, Abe Anderson, to complete the plumbing and flooring phase of the Durden project. Abe Anderson installed a new floor, consisting of 1/2 inch plywood, and a new vinyl covering to the bathroom floor of the Durden residence in all areas except where the bath tub sat in the bathroom. When Respondent left the Durden project the plumbing operated properly. (Testimony of Respondent, Anderson, and Building Inspector Cory M. Henriksen.) Respondent acknowledged that he did not, in all respects, comply with the Southern Standard Building Code in his construction of the fireplace for the Webbs. However, Respondent contends that the code provisions are incorrect and that in any event he has been constructing chimneys in excess of twenty (20) years and that all other builders in the area construct chimneys in the same manner as he. In support of his position in this regard, Respondent points to the fact that most of the chimneys in the area do not satisfy the three-feet- height criteria and that various other sections of the Southern Standard Building Code, which he is charged with violating, are either not required or not followed. Respondent acknowledges the fact, and it is found herein, that he is not registered to engage in contracting in Wakulla County, and that he has not qualified James Construction Company as the entity through which he is conducting his contracting business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent's license as a registered residential contractor (License No. RR0022063) be placed on probation for a period of one (1) year. It is further RECOMMENDED that Respondent be assessed an administrative fine in the amount of five hundred dollars ($500). RECOMMENDED this 26th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of July, 1983.
The Issue The issue is whether Respondent Robert Kegan (Mr. Kegan) committed violations of Chapters 455 and 468, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner Department of Business and Professional Regulation (Department).
Findings Of Fact Mr. Kegan has a Certificate of Licensure from the Florida Building Code Administrators and Inspectors Board. He was first licensed in 1994, and, unless he renewed it, the license expired on November 30, 2008. At all times pertinent, he was the Building Code Administrator in Mt. Dora, Florida. Mr. Kegan has never been employed by the City of Leesburg in any capacity. The Department is the state agency charged with regulating the practice of building code administration and inspections pursuant to Section 20.165 and Chapters 455 and 468, Florida Statutes. Linda Renn purchased a home located at 2407 Winona Avenue, Leesburg, Florida, from Mr. Kegan and his wife pursuant to a contract entered into during March 2001. Prior to entering into the contract for sale, Ms. Renn walked through the house with Mr. Kegan. Ms. Renn was aware that it was an older home and testified, "And I felt very comfortable after leaving the home and doing the walk through that even though I was buying an older home with older home obsolescent issues types, but that the renovations were enough that I felt comfortable." Ms. Renn typed up an addendum to the contract prior to execution that stated Mr. Kegan would level a part of the house that required leveling, install an HVAC, install a 220-volt outlet for the clothes dryer, and would accomplish certain other improvements prior to closing on the home. The addendum became part of the contract for sale. Mr. Kegan provided Ms. Renn with his business card indicating that he was the Building Code Administrator in Mt. Dora. Ms. Renn observed Mr. Kegan in a shirt with the Mt. Dora logo upon it, indicating that he was a building official of Mr. Dora, and she visited him in his office in Mt. Dora. There is no question Ms. Renn was aware that he was a building official in Mt. Dora. Ms. Renn claimed that because he was a building official she completely relied on the representations he made to her. However, this assertion lacks credibility because she employed an independent home inspector prior to closing. During the walk-through, the HVAC was resting upon the floor of the home's garage. However, at a time between March 17 and April 29, 2001, Mr. Kegan had the HVAC installed, as he agreed. Subsequently, Ms. Renn discovered this work was accomplished by an unlicensed individual. An inspection of the premises was conducted by Guy Medlock of Benchmark Building Inspections, Inc., on March 29, 2001. A report was issued on March 30, 2001. The report noted that the dwelling was 53 years old and had problems that one would expect from a home that old. Mr. Medlock also noted that the house had a lot of charm. Mr. Medlock's inspection noted that the dwelling required roof repairs and wood rot repairs. It was noted that it was necessary to ameliorate water leaks and correct electrical deficiencies, among other items. There were seven items noted with estimated costs of repair ranging from $50.00 to $150.00. At the time of the inspection, the 220-volt receptacle had not been installed for the washer and dryer. Mr. Medlock further noted that there was no plumbing available for the washer. Because of Mr. Medlock's report, Ms. Renn was well aware of the defects he noted, and she knew this prior to closing. The report stated that he, Mr. Medlock, had discussed the electrical deficiencies with Ms. Renn and suggested that she have an electrician inspect the dwelling. Ms. Renn testified that she gave greater weight to Mr. Kegan's knowledge than to the home inspector that she hired, but there is no basis in the record for her to arrive at that conclusion. On April 29, 2001, the day before closing, Economy Electric of Eustis, Florida, installed a 220-volt line, and Mr. Kegan paid for this work. Economy Electric's principal is Larry New. He is licensed to accomplish electrical work. He performed additional electrical work that was paid for by Ms. Renn, including upgrading wires so that her computer would not be damaged by bad wiring. On April 30, 2001, Mr. and Mrs. Kegan conveyed the premises to Ms. Renn by warranty deed. Subsequently, Ms. Renn concluded that she was not happy with certain facets of the house, and tried to contact Mr. Kegan to have her perceived problems corrected. Mr. Kegan was difficult to contact. In a letter dated November 4, 2001, Ms. Renn filed a 16-page complaint with the Department alleging numerous Florida Building Code violations by Mr. Kegan. She requested that the Department investigate these alleged violations. Sometime immediately prior to January 10, 2002, Ms. Renn had Raymond Anderson of Suter Air Conditioning, Inc., of Leesburg, inspect the HVAC. He made Ms. Renn aware of several city code infractions involving the HVAC. Sometime immediately prior to January 11, 2002, Ms. Renn had someone named James A. Dolan inspect the electrical service at the premises. In a letter dated January 11, 2002, Mr. Dolan stated that there were "national electrical code violations" at the house and that it was his opinion that an electrical inspector or building code official should look into the situation. Ms. Renn believed this to be true. Sometime immediately prior to February 5, 2002, Ms. Renn had the electrical service inspected by Bronson Electric Service, Inc., of Eustis, Florida. In a letter dated February 5, 2002, David E. Bronson reported numerous electrical deficiencies, including an improperly fused air conditioning unit. Mr. Bronson found that the electrical service to the house required an upgrade to 150 amps because the current service was inadequate. He quoted a price of $1,546.00 to accomplish the required modifications. Ms. Renn believed this to be accurate. Ms. Renn employed an inspector from Ocala, Florida, who prepared an inspection report dated May 10, 2002. She learned there were plumbing, electrical, and mechanical problems. She also learned that the roof did not meet building code standards. She noted that for a period of two and one-half years, the HVAC neither cooled nor heated, although it did make some noise. Permits were required for the electrical upgrade and for the air conditioning installation in Ms. Renn's house. No permits were obtained by Mr. Kegan, or his friends, or persons he employed to work on Ms. Renn's house, as were required by the City of Leesburg. By April 18, 2002, all permits had been obtained. Unlicensed persons worked on both the HVAC installation and the electrical upgrade. Work of that sort is lawful only if accomplished by licensed persons. The work accomplished without the appropriate permit and the work done by unlicensed persons, was done under the control of Mr. Kegan. Ultimately, Larry New, a licensed electrician, and Jimmy Harris, a licensed person, fixed all of the problems; got the work inspected; and ensured that all permits were in place. After her complaint to the Department which was drafted November 4, 2001, and submitted in early 2002, Ms. Renn was informed by the Department that she should handle the case locally. Complaints were made by Ms. Renn to the Leesburg Building Department and to many other officials of the Leesburg municipal government. Ultimately, a hearing regarding Mr. Kegan was held before the Lake County Board of Building Examiners (County Board) on August 7, 2003, in Tavares, the county seat of Lake County. Both Leesburg and Mt. Dora are in Lake County. The County Board heard charges against Mr. Kegan's contractor's license for accomplishing work in the trades of roofing, electrical, mechanical, and plumbing using unlicensed workers and failing to obtain permits. It imposed sanctions, including a $1,000 fine. The County Board required Mr. Kegan to do the work he promised, but it was clear that he had already accomplished that work, except for some roofing issues not further identified. The County Board did not address his position as the Building Code Administrator in Mt. Dora, Florida. The action of the County Board was subsequently reversed by a circuit court. Relations between Ms. Renn and Mr. Kegan eventually deteriorated to the point where Ms. Renn had a trespass warning served on Mr. Kegan and sought to have the state attorney prosecute him for trespass. She was not successful in this. She also sued Mr. Kegan civilly, but eventually she voluntarily dismissed the case. None of the actions taken by Ms. Renn, resulted in Mr. Kegan being disciplined. At some point thereafter, Ms. Renn appeared to be satisfied with her house and the retaliation she had visited upon Mr. Kegan. However, while Ms. Renn was "working on legislation" in Tallahassee, Florida, in 2006, she was asked by a Department attorney to reopen the case. Other than the transcript from the County Board hearing of August 7, 2003, nothing had changed. Every problem she had with the house that should have been ameliorated, had been ameliorated. Nevertheless, she did as asked by the Department attorney, and this case was filed. Ms. Renn sent two letters dated April 3, 2006, and one letter dated April 21, 2006, to the Chief Professions Attorney of the Department. The latter missive was a follow-up to the April 3, 2006, communications. The April 3, 2006, communications are considered complaints as contemplated by Subsection 468.619(4), Florida Statutes (2005). There is no evidence of record that Mr. Kegan was informed of the complaint or that he was permitted 30 days to respond as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005). There is no evidence of record that the Department submitted the complaint regarding Mr. Kegan to a probable cause panel for review as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005), within 180 days. There is no evidence to the contrary, either. In summary, the Department has proven that Mr. Kegan, during 2001 and 2002, caused work to be accomplished at 2407 Winona Avenue, Leesburg, Florida, when he owned the house, as well as after he sold the house to Ms. Renn, and this work was done without proper permits and, on occasion, by persons who had no license when a license was required.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss the Administrative Complaint in the case of Robert Kegan. DONE AND ENTERED this 13th day of January, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 13th day of January, 2009. COPIES FURNISHED: Harry T. Hackney, Esquire Harry Thomas Hackney, P.A. 3900 Lake Center Drive, Suite A1 Mount Dora, Florida 32757 Elizabeth F. Duffy, Esquire Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this matter are as established through an Administrative Complaint brought by the State of Florida, Department of Professional Regulation, against Johnny C. Fossett alleging various violations of Chapter 489, Florida Statutes, related to a job conducted for Joshua and Jacquelyn Williams. More specifically, Respondent is accused of violation of Section 489.129(1)(j) , Florida Statutes (1981), by failing to properly qualify a company under which he was doing business. In a related vein, he is accused of violation of Section 489.129(1)(g) Florida Statutes (1981), by acting in a name other than that on his license. Respondent is accused of violating Section 489.129(1)(d), Florida Statutes (1981), for willful and deliberate disregard and violation of a local building code. Respondent is accused of violating Section 489.129(1)(j), Florida Statutes, for contracting beyond the scope of his registration. Finally, Respondent is accused of a violation of Section 489.129(2), Florida Statutes,(1981), in violating Rule 21E-15.07, Florida Administrative Code, by failure to notify the Construction Industry Licensing Board of a change of address within 30 days of such change.
Findings Of Fact Respondent, Johnny C. Fossett, is the holder of a license issued by the Florida Construction Industry Licensing Board in the field of registered roofing contractor. That license number is RC 0040728. Respondent is also the qualifying agent of J. C. Fossett Roofing & Maintenance Repair of 4978 Soutel Drive, Jacksonville, Florida. In addition to the Soutel address associated with J. C. Fossett Roofing & Maintenance Repair, Respondent has given the Florida Construction Industry Licensing Board the address 8937 Castle Boulevard, Jacksonville, Florida, as his address. On April 15, 1983, Respondent contracted with Joshua and Jacqelyn Williams of 4634 Fairleigh Avenue, Jacksonville, Florida, for the construction of a utility building with roof; to repour a carport slab; and to construct a screened-in patio with roof. The agreement was also for the removal of a tree hanging over the den and carport area of the existing home. The total price of this contract was $3,550. Eighteen hundred dollars was paid as a deposit, and the remainder of the contract price was paid on May 11, 1983. In the proposal or contract agreement Respondent noted that the work was guaranteed by an entity known as J. C. Roofing. A copy of this proposal may be found as Petitioner'S Exhibit No. 2 admitted into evidence. Neither the Respondent nor any other duly licensed contractor had qualified the entity/organization known as J. C.. Roofing with the Florida Construction Industry Licensing Board. Respondent performed the work called for in the contract, without obtaining the necessary building permit from the City of Jacksonville, Florida. Respondent was registered with the City of Jacksonville as a roofing contractor. He was not registered in the fields of general contracting, building contracting, or residential contracting, which would have been necessary before Respondent could conduct that work for the Williamses, other than roofing. Respondent could not have been registered with the City of Jacksonville in those fields of general contracting, building contracting, and residential contracting because he was not qualified. The Williamses experienced problems with the quality of Respondent's work, most notable, leaks in the roof that Respondent had worked on. When it rained water would run down the walls and promote mildew. This was in the area of the joining of the roof over the patio and the roof over the carport. In response to complaints, Fossett made such remarks as "A little water on the roof is good" and offered to drill holes in the roof and install rain gutters to alleviate the problem. The owners found this unacceptable. Respondent having failed to satisfy their claims, the Williamses sought other assistance in effecting repairs. The roof still leaks. On the occasion of attempting to have these problems corrected, the Williamses sought to contact the Respondent at his Soutel address by calling the number found on the business card provided by the Respondent. When phoning that number it was discovered that someone other than the Respondent was doing business from the Soutel address. The phone number was the Respondent's residential number. The card, as given to the Williamses, indicates that the business is J & C Roofing Company, Johnny C. Fossett, Owner. Again, this business name is one for which the Florida Construction Industry Licensing Board has no indication of a duly licensed contractor properly qualifying that entity, either the Respondent or some other person. Petitioner's Exhibits Nos. 5 through 7, admitted into evidence, are photographs of the work done by the Respondent, to include roofing, and the mildew on the concrete blocks found on the outside of the patio wall which was promoted by the leak in the roof.
The Issue DOAH Case No. 89-3902, the Barona and Carrow Complaints Whether Respondent violated Florida Statutes Section 489.129(1)(d), by willfully or deliberately disregarding and violating the applicable building codes or laws of the state or of any municipalities or counties thereof. Whether Respondent violated Florida Statutes Section 489.129(1)(m), by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1900, the Grantz, Victor, Beckett, Maffetonne, and Wolfe Complaints Whether Respondent violated Sections 489.129(1)(m), (j), and 489.105(4), and 489.119, Florida Statutes, by being guilty of gross negligence, incompetence, and/or misconduct. Whether Respondent violated Sections 489.129(1)(h), (m), (j), and 489.119, and 489.105(4), Florida Statutes, by being guilty of financial mismanagement or misconduct. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilful or deliberate violation or disregard of applicable local building codes and laws. Whether Respondent violated Sections 489.129(1)(m), (j), 489.119, and 489.105(4), Florida Statutes, by failing to properly supervise contracting activities he was responsible for as qualifying agent, which supervisory deficiency also reflected gross negligence, incompetence, or misconduct Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Sections 489.129(1)(m), and (j), Florida Statutes, by giving a guarantee on a job to a consumer and thereafter failing to reasonably honor said guarantee in violation of Florida Statutes. DOAH Case No. 90-1901, the Klokow Complaint Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 90-1902, the Meister Complaint Whether the Respondent violated Section 489.129(1)(n), Florida Statutes, by failure to obtain a permit. DOAH Case No. 91-7493, the Antonelli Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 91-7951, the Insurance, Palomba, Romanello and Marin Complaints The Insurance Complaint Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(a), Florida Statutes, by making misleading, deceptive, untrue, or fraudulent representations in the practice of his profession. Whether Respondent violated Section 489.129(1)(d), Florida Statutes, by wilfully or deliberately disregarding and violating the applicable building codes or laws of the state or any municipalities or counties thereof. Whether Respondent violated Section 489.129(1)(c), Florida Statutes, by violating Section 455.227(1)(b), Florida Statutes, by intentionally violating a Board rule. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Palomba Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Romanello Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. The Marin Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing mismanagement or misconduct in the practice of contracting that causes financial harm to a customer. Whether Respondent violated Section 489.129(1)(k), Florida Statutes, by abandoning a construction project in which the contractor is engaged or under contract as a contractor. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by being found guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting. DOAH Case No. 92-0370, the Pappadoulis Complaint Whether Respondent violated Section 489.129(1)(h), Florida Statutes, by committing financial misconduct. Whether Respondent violated Section 489.129(1)(m), Florida Statutes, by committing gross negligence, incompetence and misconduct in the practice of contracting.
Findings Of Fact Pre-Hearing Admissions 3/ Admissions Applicable to All Cases Respondent is currently licensed as a contractor by the Florida Construction Industry Licensing Board. Respondent's current license number from the Florida Construction Industry Licensing Board is CG C040139. Respondent is licensed by the Florida Construction Industry Licensing Board as a certified general contractor. Respondent holds Florida Certified Roofing License No. CC-042792. Respondent is the qualifying agent for Tropical Home Industries, Inc. As qualifying agent for Tropical Home Industries, Inc., Respondent is responsible for all work performed. DOAH Case No. 89-3902 Respondent was licensed as set forth in items 1, 2, 3 and 4 above at the time of the job alleged in the Administrative Complaint. Exhibit "A", attached to the Request for Admissions 4/ is a true and correct copy of the contract between Sarah S. Carrow and the firm Respondent qualified at the time the contract was executed. As a qualifier for Tropical Home Industries, Inc., Respondent was responsible in his capacity as a certified general and roofing contractor for all work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow. Pursuant to the contract between Sarah S. Carrow and Tropical Home Industries, Inc., all work under said contract was to be completed in three (3) to six (6) weeks. Respondent, acting through Tropical Home Industries, Inc., failed to complete all work under the contract with Sarah S. Carrow within six (6) weeks after work was commenced. Respondent, acting through Tropical Home Industries, Inc., failed to obtain a final inspection of the work under the contract with Sarah S. Carrow prior to the building permit's expiration date. Broward County, Florida, has adopted the South Florida Building Code as its local ordinance governing residential construction. Respondent's failure to obtain a timely final inspection of the work performed pursuant to the contract between Tropical Home Industries, Inc., and Sarah S. Carrow is a violation of Section 305.2 of the South Florida Building Code. Section 1405.1 of the South Florida Building Code requires installation of either a window or vent fan in each bathroom. Section 3407.9(a) of the South Florida Building Code requires that flashing be installed on plumbing vent pipes which are installed through the roof. Any problems or deficiencies in the work performed by Tropical Home Industries, Inc., pursuant to its contract with Sarah S. Carrow were caused by employees and/or subcontractors of Tropical Home Industries, Inc. DOAH Case Nos. 89-3902, 90-1900, 90-1901, and 90-1902 DOAH Case No. 89-3902 The Baronas' house is located at 1251 Westchester Drive East, West Palm Beach, Florida 33417. Respondent contracted with the Baronas as the qualifying agent of Tropical Home Industries, Inc. The Baronas' house is located within Palm Beach County. Palm Beach County is the appropriate Building Department under which all inspections were to have been performed. DOAH Case No. 90-1901 On or about December 5, 1988, Respondent contracted with Mel Klokow, acting for Linda Klokow ("Klokow"), for the renovation of a screen porch with a roof to her home. Respondent contracted with Klokow as a qualifying agent of Tropical Home Industries, Inc. Permit No. 88-8085 was issued by the local building department. The work at the Klokow residence did not pass final inspection. DOAH Case No. 90-1902 In December of 1987, Respondent contracted to close in a screen porch for Janet Meister ("Meister"). Respondent contracted with Meister as the qualifying agent for Tropical Home Industries, Inc. Respondent failed to obtain a permit for the work performed at the Meister's. Respondent's failure to obtain a permit for the Meister job violated local building codes and Section 489.129(1)(n), Florida Statutes. DOAH Case No. 90-1900 The Grantz home is located at 10878 Granite Street, Boca Raton, Florida. The approximate amount of the contract price with the Grantz was $1,890.00. Respondent contracted for the Grantz job as a qualifying agent of Tropical Home Industries, Inc. Respondent began work at the Grantz residence on or about May 10, 1989. The work at the Grantz residence failed final inspection on July 12, 1989. Respondent wilfully violated applicable local building codes and laws on the Grantz project. Respondent wilfully disregarded local building codes and laws in connection with the Grantz project. Respondent deliberately violated applicable local building codes and laws in connection with the Grantz project. Respondent deliberately disregarded applicable local building codes and laws in connection with the Grantz project. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors at his home. The Victor residence is located at 9768 Majorca Place, Boca Raton, Florida. The contract price with Victor was $3,293.00. Respondent contracted with Victor as a qualifying agent of Tropical Home Industries, Inc. Victor paid a total deposit of $670.00 to Respondent. Respondent never began work at the Victor residence. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at her home. The Beckett residence is located at 2501 N.W. 41st Avenue, Unit 302, Lauderhill, Florida. The contract price with Beckett was $1,684.00. Respondent contracted with Beckett as a qualifying agent of Tropical Home Industries, Inc. On or about October 29, 1988, Respondent contracted with Thomas and Sherry Maffetonne (the "Maffetonnes") to construct a patio enclosure at their home. The Maffetonne's residence is located at 22980 Old Inlet Bridge Drive, Boca Raton, Florida. The contract price for the work to be performed at the Maffetonnes was $4,350.00. Respondent contracted with the Maffetonnes as a qualifying agent for Tropical Home Industries, Inc. A five-year warranty on materials was given by Respondent for the work to be performed at the Maffetonne's. A one-year warranty on labor was given by Respondent for the work performed at the Maffetonne's. On or about June 6, 1989, Respondent contracted with Mr. and Mrs. Morton Wolfe (the "Wolfes") to install windows at their home. The Wolfe's residence is located at 7267 Huntington Lane, #204, Delray Beach, Florida. Respondent contracted with the Wolfes as the qualifying agent of Tropical Home Industries, Inc. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence. DOAH Case No. 91-7951 On June 21, 1990, Tropical's general liability insurance coverage (policy number 891006GL327), produced by Steven Adams and Associates, Inc., (hereinafter "Adams and Associates") and afforded by Guardian P & C Insurance Company, expired. On July 17, 1990, Tropical issued a check to Adams and Associates in the amount of $2,475.00 to obtain general liability and workers' compensation insurance. Upon receipt of the check, Adams and Associates issued a Certificate of Insurance to the Davie (Florida) Building Department indicating that Tropical had general liability (policy number GL 235810) and workers' compensation insurance in force through July 17, 1991. After said Certificate of Insurance was issued, Tropical stopped payment on the check issued to Adams and Associates. Tropical failed to issue an additional check or remit payment of any kind, resulting in both the general liability and workers' compensation insurance being canceled, effective July17, 1990. In September of 1990, a Certificate of Insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective, and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327, produced by Adams and Associates with coverage being afforded by Guardian P & C Insurance Company) expired on June21,1990, and was never renewed or kept in force after that date. The Davie Building Department had no other certificates or records indicating that Tropical had insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance, thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with PartI of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board records indicate that Tropical has general liability insurance coverage through Equity Insurance (hereinafter "Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (hereinafter "Palombas") to perform enclosure and remodeling work at the Palombas' residence located at 130 North East 5th Court, Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed interior plaster from the area that was to be remodeled. Subsequent to receiving the permit, Tropical removed exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed to continue with the project pursuant to the original agreement. Tropical refused to continue with the project pursuant to the original agreement. Tropical failed to return any monies to the Palombas. In May 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,830.00. On or about July 11, 1990, Tropical entered into an agreement with Don Romanello (hereinafter "Romanello") to construct a screen room on an existing slab at Romanello's residence located in Boca Raton, Florida. The contract price was $9,500.00. Tropical received $4,800.00 in payments from Romanello, but failed to obtain a permit or perform any work pursuant to the agreement. Tropical has failed to return any portion of Romanello's payments. Tropical refused to communicate with Romanello. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin (hereinafter "Marin") to construct a screen room at Marin's residence located in Broward County, Florida, for $4,021.00. Tropical received a $2,000.00 deposit from Marin at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement. Tropical has failed to return Marin's deposit. Tropical has refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case No. 91-7493 On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters of his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract was $2,016.00. Antonelli paid a deposit of $500.00 to Tropical Home Industries. Respondent informed Antonelli that he would not be able to perform the work at the contracted price. Respondent never performed any work at the Antonelli's home. Respondent canceled the contract with Antonelli. Respondent failed to return the deposit paid by Antonelli to Tropical Home Industries. Testimony at Final Hearing Facts Applicable to All Cases Respondent is, and has been at all times hereto, a certified general and roofing contractor in the State of Florida, having been issued license number CG C040139 and CC 2042792. For all contracts and jobs referenced in all of the administrative complaints in these consolidated cases, Respondent acted through the contracting business with which he was associated and for which he was responsible in his capacity as a licensed contractor. DOAH Case No. 89-3902, The Barona and Carrow Complaints Respondent contracted with Rhonda Barona to build an addition to her home at 1251 Westchester Dr. East., West Palm Beach, Florida, for approximately $5,124. The work performed at the Barona residence took an unreasonable amount of time to complete. The permit issued to perform the work at the Barona residence was canceled and Respondent failed to obtain a final inspection. Respondent contracted with Sarah Carrow to build an addition at her home located at 1421 N. 70th Avenue, Hollywood, Florida, for approximately $14,460.60. Respondent allowed the permit to expire and failed to obtain required inspections at the Carrow residence. Respondent failed to fully comply with applicable local codes by failing to install a window or vent fan in the bathroom. DOAH Case No. 90-1900, The Grantz, Victor, Beckett, Maffetonne and Wolfe Complaints On or about March 31, 1989, Respondent contracted with John and Lori Grantz to install windows at 10878 Granite Street, Boca Raton, Florida, for the amount of $1,890.00. Work at the Grantz residence began on or about May 10, 1989. At the time work began, no permit had been obtained. A late permit was obtained on June 15, 1989, in violation of local codes. The work performed by Respondent at the Grantz residence failed final inspection on July 12, 1989, because the structure was not constructed as for the intended use. The windows which were installed were designed as a temporary structure, removable in cases of severe weather and not as a permanent enclosure. On or about April 12, 1989, and April 17, 1989, Respondent contracted with Stephen Victor ("Victor") to install sliding glass doors and windows at 9768 Majorca Place, Boca Raton, Florida, for the total amount of $3,293.00. Victor paid Tropical a total deposit of $670.00, but work never began. On or about April 17, 1989, Respondent contracted with Vinton Beckett ("Beckett") to install windows at 2501 N.W. 41st St., Unit 808, Lauderhill, Florida, in the amount of $1,684. A five-year warranty on materials and a one-year warranty on labor were provided to Beckett by Tropical. Respondent failed to obtain a timely permit or call for required inspections in violation of local law. Respondent failed to correct defects and deficiencies in the work performed at the Beckett residence in a reasonable amount of time. On or about October 29, 1988, Respondent contracted with Thomas and Sharee Maffetonne to construct a patio enclosure at 22980 Old Inlet Bridge Drive, Boca Raton, Florida, for the amount of $4,350.00. A five-year warranty on materials and a one-year warranty on labor were given. Respondent failed to correct defects and deficiencies in the work on the Maffetonne residence in a reasonable amount of time. On or about June 6, 1989, Respondent contracted with Morton Wolfe to install windows at 7267 Huntington Lane, #204, Delray Beach, Florida, for the amount of $1,668.13. Respondent failed to obtain a timely permit or call for required inspections at the Wolfe residence in violation of local codes. DOAH Case No. 90-1901 The Klokow Complaint On or about December 5, 1989, Respondent contracted with Mel Klokow, acting for Linda Klokow, for the construction of a screen porch with a roof to her home at 5292 N.E. 10th Terr., Ft. Lauderdale, Florida, for the sum of $4,473.00. Permit number 88-8085 was issued by the local building department. The work performed at the Klokow residence initially failed to pass the final inspection, and the Respondent failed to return to correct the code violations in a reasonable amount of time. DOAH Case Number 90-1902 The Meister Complaint In December of 1987, Respondent contracted to close in a screen porch for Janet Meister. Respondent failed to obtain a permit for the work performed, which is a violation of local building codes. DOAH Case Number 91-7493 The Antonelli Complaint On July 2, 1988, Respondent contracted with Anthony Antonelli ("Antonelli") to construct an aluminum roof over the patio and gutters at his residence at 9303 Laurel Green Drive, Boynton Beach, Florida. The price of the contract for the work to be performed at the Antonelli residence was $2,016.00. Antonelli remitted a deposit of $500 to the Respondent. Respondent informed Antonelli that he would not be able to perform said job for the contracted price and no work ever began. Respondent canceled the contract with Antonelli and failed to return the deposit to Antonelli. DOAH Case Number 91-7951 The Insurance, Palomba, Romanello and Marin Complaints On June 21, 1990, Tropical's general liability insurance coverage, policy number (891006GL327), produced by Stephen Adams & Associates, Inc., ("Adams & Associates") and afforded by Guardian Property & Casualty Company, expired. On July 17, 1990, Tropical issued a check to Adams & Associates in the amount of $2,475.00 to obtain and/or renew general liability and workers' compensation insurance. Upon receipt of the check, Adams & Associates issued a certificate of insurance to the Davie Building Department in Davie, Florida, indicating that Tropical had general liability (policy number 235810) and workers compensation insurance in force through July 17, 1991. After said certificate of insurance was issued, Tropical stopped payment on the check issued to Adams & Associates. Tropical failed to issue an additional check or remit payment of any kind resulting in the general liability and workers compensation insurance being canceled, effective July 17, 1990. In about September 1990, a certificate of insurance was submitted to the Davie Building Department indicating that Tropical had general liability insurance in effect from September 21, 1990, until September 21, 1991. Said certificate had been altered in that the issue, effective and expiration dates had been updated to reflect that the policy coverage was current and in force. The policy listed on the certificate (number 891006GL327), produced by Adams & Associates and afforded by Guardian Property & Casualty Company, expired on June 21, 1990, and was never renewed or kept in force after that date. The Davie Building Department has no other certificates or records indicating that Tropical has insurance coverage. Between July 17, 1990, and April 8, 1991, Tropical obtained five (5) building permits from the Davie Building Department. At no time during the aforementioned period did Tropical have general liability insurance thereby violating Section 302.1(b) of the South Florida Building Code which requires that building permit applicants be qualified in accordance with Part I of Chapter 489, Florida Statutes. Licensees are required to maintain public liability insurance at all times as provided by rules promulgated pursuant to Part I of Chapter 489, Florida Statutes. Construction Industry Licensing Board ("CILB") records indicate that Tropical has general liability insurance coverage through Equity Insurance Company ("Equity") of Hollywood, Florida. Effective June 8, 1988, Tropical's insurance with Equity was canceled. On February 20, 1991, Tropical entered into an agreement with Michael and Margaret Palomba (the "Palombas") to perform enclosure and remodeling work at the Palomba's residence located at 130 N.E. 5th Ct., Ft. Lauderdale, Florida 33334. The approximate contract price was $11,978.00. On March 13, 1991, Tropical received a $2,994.50 deposit from the Palombas. On March 25, 1991, Tropical obtained a permit for the project from the Broward County Building Department. Subsequent to receiving the permit, Tropical removed an interior closet and exterior doors from the area that was to be remodeled. Tropical then stopped work stating that rotten wood had been discovered, and requested an additional $2,800.00 to continue with and complete the project. Tropical refused to perform any additional work without the Palombas agreeing to the added cost. Tropical failed or refused to continue with the project pursuant to the original agreement and failed to return any monies to the Palombas. In May, 1991, the Palombas hired a second contractor, Dan Sturgeon, to complete the project for $13,000.00. 156. Based on the foregoing, Tropical committed misconduct in the practice of contracting. On or about July 11, 1990, Tropical entered into an agreement with Don and Norma Romanello (the "Romanellos") to construct a screened room on an existing slab at the Romanello's residence located in Boca Raton, Florida. The contract price was $9,500. Tropical received a $4,800.00 payment from the Romanellos but failed to perform any work pursuant to the agreement. Tropical has failed or refused to return any portion of the Romanellos payments and has refused to communicate with the Romanellos. Based on the preceding, Tropical committed misconduct in the practice of contracting. On or about June 23, 1990, Tropical entered into an agreement with Marcelina Marin to construct a screened room at Marin's residence located in Broward County, Florida for $4,021.00 Tropical received a $2,000.00 deposit at the time the agreement was entered into. Tropical failed to perform any work under the terms of the agreement, and has failed or refused to return Marin's deposit. Based on the preceding, Tropical committed misconduct in the practice of contracting. DOAH Case Number 92-0370 The Pappadoulis Complaint On or about February 11, 1990, the Respondent contracted with John Pappadoulis ("Pappadoulis") to remodel a Florida room for the agreed upon amount of $11,448.00 at his residence located at 983 Southwest 31st Street, Fort Lauderdale, Florida. Respondent received a deposit of $648.00, but never obtained a permit nor began work. The Respondent failed or refused to return Pappadoulis' deposit. John Pappadoulis has since passed away. Aggravating and Mitigating Circumstances Monetary Damages Several of the customers in these cases suffered monetary damages. The Baronas had to hire an attorney to deal with the Respondent. The Baronas also incurred additional costs in the work they performed to complete the contract. John and Lori Grantz also suffered monetary damages due to their dealings with the Respondent. The work at the Grantz residence was never completed by the Respondent. The Respondent filed a lien on the Grantz property and also filed a lawsuit to receive the full amount of the contract price. The Grantz had to hire an attorney to obtain legal advice and to defend the lawsuit. The Grantz prevailed in that lawsuit and a judgment was entered requiring the Respondent to refund the $500.00 cash deposit. The Grantz also spent at least $150.00 on attorney fees. The deposit money was never returned and none of their costs were ever reimbursed by the Respondent. Steven Victor also sustained monetary damages in his dealings with the Respondent. Victor paid the Respondent $670.00 as a deposit. No work was ever performed. After requesting the return of his deposit money and failing to receive it, Victor filed a civil action against the Respondent. Judgment was entered in favor of Victor, but the judgment was never paid. The Maffetonnes also sustained monetary damages in their dealings with the Respondent. The Respondent agreed to refund a portion of the contract money to the Maffetonnes due to a problem with the carpet he installed incorrectly, but failed to ever refund any money. The Maffetonnes therefore paid for goods which were defective, and never received a compensatory credit. Klokow also sustained monetary damages in his dealings with the Respondent Because of continuing roof problems, Klokow had to hire an independent roofing expert to inspect the roof and prepare a report. Mr. and Mrs. Palomba also sustained monetary damage due to their dealings with the Respondent. When the Respondent abandoned the Palomba job, the Palombas were forced to hire a second contractor at a higher contract price. The Respondent's actions also caused monetary damages to Antonelli, Pappadoulis, Marin, and Romanello. In each case, the homeowner paid a deposit to the Respondent, and the Respondent failed to ever perform work or return any of the deposit money. The Antonellis paid $500.00, Pappadoulis paid $648.00, Marin paid $2,000.00, and Romanello paid $4,800.00. Actual Job-Site Violations of Building Codes or Conditions Exhibiting Gross Negligence, Incompetence, or Misconduct by the Licensee Several of the jobs involved in these cases had actual job site violations of building codes or conditions which exhibited gross negligence, incompetence, or misconduct by the Respondent which had not been resolved as of the date of the formal hearing. At the Barona residence, the framing inspection failed twice before finally being passed a third time; the lath inspection failed three times before finally passing on the fourth time; and the final inspection failed and was never satisfactorily completed by the Respondent. At the Carrow residence, the Respondent failed to install a window or vent fan in the bathroom of the room addition which he installed. In addition to the building code violation, the work performed was incompetent as the structure installed leaked for many months. Further, the original permit expired prior to a final inspection ever being obtained. At the Grantz residence, the Respondent exhibited incompetence and misconduct by installing windows that he knew or should have known were unsuitable for the purposes specified by the customer. Severity of the Offense The large number of violations established in these cases indicates that the Respondent is a serious threat to the public. These violations establish that the Respondent had a pattern of failing to conduct any meaningful supervision of work in progress. And perhaps most serious of all is his frequent act of soliciting deposits for projects he apparently had no intention of even beginning, much less finishing. This latter practice borders on constituting some form of larceny. Danger to the Public The Respondent is a danger to the public in two ways. First, he is a financial threat to the public, most significantly by his practice of taking deposits for jobs he apparently did not intend to perform. Second, he is a threat to public safety, because the work he performs is often done in a haphazard, careless manner. The Number of Repetitions of Offenses As is obvious from the findings of fact and conclusions of law in this Recommended Order, the Respondent is guilty of numerous repeated offenses which occurred over a period of approximately three years. The Respondent's numerous offenses are indicative of an attitude of contempt or disregard for the requirements of the applicable rules and statutes. Number of Complaints Against Respondent The charges in these cases are based on fifteen separate customer complaints to the Department of Professional Regulation regarding the Respondent. Further, the Palm Beach County Construction Industry Licensing Board received four complaints from homeowners regarding the Respondent 5/ and the Broward County Consumer Affairs Department received twenty-nine complaints regarding the Respondent. 6/ Such a large number of complaints indicates that the Respondent's shortcomings were not isolated events, but represent a recurring problem. The Length of Time the Licensee Has Practiced The Respondent was first licensed as a state general contractor in 1987. He obtained his roofing contractor license shortly thereafter. The Respondent's licenses were placed under emergency suspension in August of 1991. Damage to the Customers The damages, monetary and otherwise, suffered by the Respondent's customers has already been addressed. In addition, all of the Respondent's customers mentioned in the findings of fact suffered a great deal of aggravation, stress, and frustration in dealing with the Respondent. Penalty and Deterrent Effect In these cases, the proof submitted demonstrates that no penalties short of revocation of the Respondent's licenses and imposition of the maximum amount of fines will act as a deterrent to the Respondent and others and as appropriate punishment for the many violations established by the record in these cases. Efforts at Rehabilitation There is no persuasive evidence in the record of these cases that the Respondent has become, or is likely to become, rehabilitated. To the contrary, the greater weight of the evidence is to the effect that the Respondent is unwilling or unable to conform his conduct to the requirements of the statutes and rules governing the practice of contracting.
Recommendation Based upon the foregoing findings of fact and conclusions of law, IT IS RECOMMENDED: That the Respondent be found guilty of all of the violations charged in each Administrative Complaint and Amended Administrative Complaint as noted in the conclusions of law, and that the Respondent be disciplined as follows: The Respondent be required to pay an administrative fine in the amount of $5,000.00 for each of the twenty-nine counts of violations charged and proved, for a grand total of $145,000.00 in administrative fines; The Respondent's license numbers CG C040139 and CC C042792 be revoked; and The Respondent be required to pay restitution to the following Complainants in the following amounts: Steven Victor - $670.00; John Grantz - $650.00; Don Romanello - $4,800.00; Marcelina Marin - $2,000.00; Anthony Antonelli - $500.00; John Pappadoulis' next of kin - $648.00. All restitution shall earn 12% interest per annum from the date the Complainants paid their deposit to Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 21st day of October, 1992. MICHAEL M. PARRISH, 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 21st day of October, 1992.
Findings Of Fact Eduardo Kirksey is licensed as a certified residential contractor, holding license CR C012717. He qualified a corporation known as Modern Construction Company, Inc. (Modern) to engage in contracting.Modern entered into a contract on about July 28, 1986 with Ira Goldstein of 4440 Southwest 32nd Drive, Hollywood, Florida for construction of two-story room addition which would include a family room, bedroom and bath. Modern was to provide the plan by which the addition would be built. A rough sketch of the addition is included on the contract. More specific plans, which are similar to architectural drawings, were thereafter prepared for submission with the building application, which Modern filed with the Broward County Building and Zoning Enforcement Division. The contract was later amended to add a balcony around the second floor of the addition. The plans which are in evidence as Department Exhibit 4 are the second set of plans. According to these plans, the second floor bedroom had a 6" x 6" sliding glass door. The door opened on to a balcony which was created by cantilevered joists consisting of 2" x 10" pieces of lumber bolted to 2" x 12" rafters between the first and second floor. These 2" x 10" members extended out four feet from the building. According to the plans, 2" x 6" decking was to be placed across these joists, and an appropriate railing would then be placed around the balcony. Mr. Kirksey submitted the amended application for the permit and the plan to the Broward County Plan Review Board for approval, and it was approved. After construction began, Mr. Goldstein determined that he did not wish the floor of the balcony to be pressure treated wooden decking. Instead, he wanted a tile floor on the deck. Mr. Kirksey had already filed two sets of plans with Broward County on the project, the first for the addition without the balcony, and the second for the addition with the balcony. He did not want to file a third building permit application which would also require the submission of new drawings. Mr. Kirksey did agree to change the construction to accommodate Mr. Goldstein's desire to tile the balcony but declined to do the tile work himself as part of his contract with Mr. Goldstein. Mr. Goldstein was to arrange for the tiling of the deck. The original design for the decking would have spaced the 2" x 6" lumber which made up the decking with small spaces between each piece of lumber to allow water to fall through during rain. In order to lay tile down, it was necessary to place plywood across the joists, rather than 2" x 6" pressure treated lumber. Before the plywood could be laid, however, Mr. Kirksey had to remove the 2" x 10" cantilevered joists from between the first and second floor, because the original design called for those joists to be level. They were reinstalled at about a 1/2 inch slant so that the water would then drain from the balcony after it had been tiled. In addition, Mr. Kirksey then had to place soffit under the balcony, and put facia around the bottom of the deck. Neither the soffit nor the facia were required in the plans. Although it was more expensive for Mr. Kirksey to add these items, Mr. Goldstein was not charged any additional money for this work. The plywood that was put down over the 2" x 10" rafters instead of the pressure treated 2" x 6" lumber was 3/4 inch exterior grade plywood. Pressure treated plywood was not used because the plywood was to be covered with tile, and if properly tiled, pressure treated plywood is unnecessary. Moreover, even if tile is put over pressure treated plywood, if tile is not laid properly, the pressure treated plywood will rot as well as exterior plywood will rot. It would not have been possible to place tile over the 2" x 6" pressure treated lumber which the amended plan filed with the Broward Building and Zoning Enforcement Division had called for. The 2" x 6" members would shrink and move, causing the tile to crack. Some type of plywood had to be used instead of decking to permit Mr. Goldstein to tile the deck. The 3/4 inch plywood which Mr. Kirksey used met or exceeded the standards established by the South Florida Building Code. No sealant, or paint, was applied to the plywood, nor was the deck covered with visquine. Preparation of the plywood before the tile was placed over it would be the job of the person doing the tile work. An inspector from the Broward County Building and Zoning Enforcement Division visited the site on a number of occasions. During the course of those inspections some of the work was originally rejected by the inspector. For example, the balcony railing pickets had a spacing greater than 5 inches and the top of the rail was only 36 inches high, not 42 inches high. As a result of this rejection, the picket spacing and railing were changed. Ultimately, the inspector gave final approval after having seen the plywood deck, even though no new plans had been submitted to change the deck to have a plywood floor for tile rather than the originally permitted 2" X 6" pressure treated lumber deck. When the job was completed by Modern it was in the condition a project would normally have been left where the contractor was not responsible for laying the tile over the balcony floor. Because the floor was to be tiled, there was no reason for Mr. Kirksey to have painted the balcony floor. In addition, the contract did not require that any painting be done. Mr. Goldstein did the tile work on the deck himself although he had no prior experience in laying tile. Mr. Goldstein spoke with one of Modern's workmen about how to lay tile. This was an informal conversation, and Mr. Kirksey, the contractor, never advised Mr. Goldstein on how to lay tile. I do not accept the testimony of Mr. Goldstein that the employee of Modern who explained to him how to lay tile was the job foreman. Nothing in the contract with Modern required Modern to lay tile, or to advise Mr. Goldstein how to lay tile, so whether the person who discussed laying tile with Mr. Goldstein was a foreman is not significant. Sometime after all the work had been completed by both Modern and Mr. Goldstein, Mr. Goldstein's daughter Evette stepped out onto the balcony, and her foot and leg went through the balcony. This occurred because the plywood had not been sealed or protected before the tile was laid by Mr. Goldstein. As a consequence, the plywood had rotted under the tile. The rot also extended to the supporting joists. Broward County has adopted and incorporated into the Broward County Charter, Chapter 71-575, Laws of Florida, a Special Act of the Legislature. Both adopt for Broward County the "South Florida Building Code, Dade County 1970 edition, as amended." The Department included with its proposed recommended order portions of the South Florida Building Code, 1986 Broward County edition, for the purpose of demonstrating that the conduct of Mr. Kirksey violated Section 301(a) and 302.1(e) of that 1986 code. As a matter of evidence, the 1986 Broward County edition of the Southern Florida Building Code does not appear to apply. The Department's exhibit 7, which is "a copy of the Broward ordinance which adopts the South Florida Building Code" (Tr. 6) shows that it is the South Florida Building Code, Dade County 1970 edition which applies in Broward County. No portion of that document has been offered in the record of this case. As a consequence, there is no record evidence that Mr. Kirksey has violated a portion of an applicable code. It is true that Mr. Joseph Montagnino testified that Section 301(a) of the South Florida Building Code would not permit a change in a plan once it had been approved (Tr. 22, 104). In a case such as this, however, it is necessary for the Department to produce the text of the applicable building code, which has been adopted either by State statute or local ordinance. It cannot prove a violation through the testimony of a witness who merely characterizes his recollection of the text of an authoritative code. Moreover, other witnesses who are experts in construction trades in Broward County testified that it is common for inspectors to approve changes such as that made by Mr. Kirksey here, at the request of Mr. Goldstein, to substitute plywood flooring for pressure treated decking, without the need for amended plans or permits. (Tr. 75-77, 88- 89). Without evidence of the text of the applicable code, it is not possible to determine whether these experts, or Mr. Montagnino are correct. Since Mr. Goldstein, the homeowner, intended to do the tile work, it would not have been Mr. Kirksey's responsibility to pull additional permits for the tile work. At most, Mr. Kirksey's duty might have been to have obtained approval of amended plans, showing the slight pitch of the joists supporting the balcony floor, and the substitution of plywood and tile for 2" X 6" pressure treated lumber as the flooring for the balcony. Mr. Kirksey is in no way responsible for the inadequate preparation of the plywood surface for the application of the tile. Mr. Kirksey is in no way responsible for informal advice given by an employee of Modern, whose identity cannot be determined from the evidence in this case, to Mr. Goldstein about the proper way to prepare the plywood deck for tiling. Tiling was not part of the construction contract which Mr. Goldstein entered into with Mr. Kirksey's company. Mr. Kirksey is therefore not liable for inadequate supervision of employees on the job. Mr. Kirksey's employees performed the work required under the agreement which Modern had with Mr. Goldstein, as the parties amended it after the construction began.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board finding Eduardo Kirksey not guilty of the violations set out in Counts I, II or III of the Administrative Complaint. RECOMMENDED this 24th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of December, 1991.
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is now, and has been since 1982, a roofing contractor licensed to practice in the State of Florida. He holds license number RC 0041149. At all times material hereto, Respondent has been the licensed qualifying agent for Reinforcement Roofing and Painting Company (Reinforcement). On or about November 29, 1987, Reinforcement, through Respondent, entered into a written contract with Wayne Leidecker in which it agreed, for $4,655.00, excluding permit fees and taxes, to replace the roof on Leidecker's residence, located at 18280 S.W. 202nd Street in Miami, Florida. Shortly thereafter, Reinforcement obtained a permit from the Metropolitan Dade County Building and Zoning Department to perform the work specified in the contract. It then proceeded to begin work on the project. The felt underlayer of the new roof was improperly installed. Reinforcement laid the shingles over this improperly installed felt underlayer without first calling for a tin cap/anchor sheet inspection, in willful violation of the local building code. The result was a roof having a "wavy" appearance. To make matters worse, some of the shingles were not properly fastened to the roof deck. Furthermore, the metal eaves and gable drips were installed too close to the facie in violation of the local building code. The work on the Leidecker project, which was performed under the supervision of Respondent, was completed in January, 1988. The job, however, having been done in an incompetent manner, failed its final inspection. Efforts were subsequently made by Reinforcement, under the direction of Respondent, to correct the foregoing problems. These efforts were inadequate and unsuccessful. Consequently, the project was still unable to pass a final inspection. Leidecker was growing increasingly impatient. In the latter part of 1988, he had Charles H. Walton, the Vice-President of Bob Hilson & Company, Inc., examine the roof. Based upon his examination, Walton concluded, in a written report which he gave Leidecker, that "[d]ue to all of the above deficiencies, South Florida Building Code infractions and the waviness of the shingles, the only way that I can truthfully say that this roof can be properly corrected is to remove this existing shingle roof entirely to a smooth workable surface and reinstall a new 3-tab, 20 year type fungus resistant fiberglass shingle roof system, that meets all of the South Florida Building Code specifications and manufacturers' requirements." This was consistent with what Leidecker had been told by the building inspectors who had previously inspected the roof. Accordingly, after receiving Walton's report, Leidecker refused to allow Reinforcement to do any further patchwork on the roof. He expected Reinforcement to take the removal and reinstallation measures Walton had recommended in his written report. He would accept nothing less. By letter dated July 14, 1989, Respondent was informed that a formal hearing would be held before the Dade County Construction Trades Qualifying Board (CTQB) on the following four charges filed against him relating to the Leidecker project: Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3401.4(c) of the South Florida Building Code (SFBC) by failing to obtain the final roofing inspection required at a roofing job located at 18280 S.W. 202nd Street Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3403.3(h)(2) of the South Florida Building Code (SFBC) by failing to imbed sheets of roofing felt without wrinkles or buckles as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3408.3(c) of the South Florida Building Code (SFBC) by failing to install metal eave and/or gable drips so the bottom of said metal drips did not touch facie and did [not] have the minimum of a one-half inch clearance from the structure as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 10-22(a) of the Code of Metropolitan Dade County, Florida, in that they did fail to fulfill their contractual obligation to honor a six (6) year warranty in connection with roofing work done on the residence located at 18280 S.W. 202nd Street, Miami, Dade County, Florida. The hearing on these charges was held as scheduled on August 10, 1989. The CTQB found Respondent guilty of Charges 1, 2 and 3 and not guilty of Charge The following penalties were imposed: Charge 1- six-month suspension of Respondent's personal and business certificates and a fine of $1,000.00; Charge 2- six-month suspension of Respondent's personal and business certificates and a fine of $250.00; and Charge 3- official letter of reprimand and a fine of $250.00. In addition, he was directed to pay $257.00 in administrative costs. On October 12, 1989, Respondent made another appearance before the CTQB. He made a request that the foregoing penalties be reduced. His request was granted. The CTQB "lifted" his suspension, but with the caveat that if he did not timely pay his fines the suspension would be reinstated. Respondent failed to make timely payment. As a result, his suspension was reinstated. Neither Reinforcement, nor Respondent in his individual capacity, has yet to take the measures necessary to correct the problems with the Leidecker roof that were caused by the shoddy work done under Respondent's inadequate supervision. Respondent has been disciplined on two separate, prior occasions by the Construction Industry Licensing Board for conduct unrelated to that which is the subject of the charges filed against him in the instant case. On February 12, 1986, the Board issued a final order in Case No. 0053301 imposing a $250.00 administrative fine upon Respondent. On June 16, 1988, in another case, Case No. 81135, the Board fined Respondent $500.00 for violating the provisions of Section 489.129(1)(i), Florida Statutes.
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 finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant amended administrative complaint and suspending Respondent's license for a period one year and imposing upon him a fine in the amount of $3,500.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1990. 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 27th day of September, 1990.
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
