The Issue The issue is whether Petitioner’s application for certification as a plumbing inspector should be granted.1/
Findings Of Fact Respondent is the executive branch agency within the Department of Business and Professional Regulation (DBPR) charged, among other duties, with administering part XII, chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors. On March 8, 2013, Petitioner submitted an application to the Board for initial certification by examination as a plumbing inspector. The application included sections for Petitioner’s personal information, method of qualification for certification, employment history, education, background information, affidavits of work experience, and an affirmation by written declaration executed by Petitioner.5/ The Board has an application review committee (ARC) composed of code enforcement professionals. One of the requirements that the ARC had to determine was whether Petitioner had clearly demonstrated five years of experience related to plumbing in order to be approved for the examination. Such experience could have been broken down into having done plumbing, inspected plumbing, or performed plumbing plan reviews. Petitioner submitted several affidavits to establish the requisite five years of experience necessary to qualify for the plumbing inspector certification examination. The instructions in “Section VIII-Work Experience” provided: 6/ This section must be completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the applicant’s experience for the period of time listed below. Instructions: Provide employment verification for the years of experience required for qualification for certification. Attach additional copies of this page as necessary. Note: Local Government Employees- To qualify for the fee reduction local government employees must provide Work Experience showing current employment with a local government agency that is signed by the building code administrator. * * * Describe in detail the applicant’s duties, including hands-on, supervisory or management responsibilities. Please be specific when explaining the applicant’s duties and hands- on experience. Mr. Thorne, the current Longboat Key building official, has supervised Petitioner for approximately two years, the length of his employment with Longboat Key. Petitioner submitted an affidavit by Mr. Thorne to demonstrate Petitioner’s work experience. Mr. Thorne’s affidavit did not provide the specific duties and hands-on experience to reflect the required plumbing experience. Mr. Thorne did not provide any additional supportive information during his testimony. J. Kent Kimes, the president of Kimes Engineering/Southwest Florida Building Inspections, and Harry R. Fowler, the former Longboat Key building official, both provided affidavits purporting to support Petitioner’s application. Neither affidavit described in specific terms Petitioner’s experience, job duties or overall knowledge of the plumbing trade. The affidavits did not provide the necessary information to support Petitioner’s application, nor did they accurately reflect the time of their respective supervision of Petitioner. Petitioner is employed by a public entity, the City of Longboat Key. The Board has issued him several licenses including: “a standard plans examiner’s license with the endorsements of electric and mechanical and plans examiner;” and “a Florida standard inspector’s license . . . with the endorsements for building, commercial electric; 1 and 2 family dwelling inspector; mechanical inspector, which would be commercial; and residential electrical inspector.” However, the experience required for these licenses could not be used to appropriately demonstrate how much experience Petitioner had in the plumbing trade. At all times material, Robert McCormick was the Board’s Chairman, and a member of the ARC. Mr. McCormick is a master electrician, a certified building official, a certified building code administrator, a plans examiner, a plans inspector and a member of the Council of the American Building Officials. He was tendered as and accepted as an expert. Each construction trade has a specific and complex code of regulations. Inspectors in each category must ensure compliance with that trade’s regulations. Plumbing inspectors must be versed in both residential and commercial construction codes. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. Both the ARC and the Board were looking for affidavits that showed specific expertise in the plumbing trade category, not just experience in a general sense. The Board denied Petitioner’s application for certification as a plumbing inspector because his application: [d]oes not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator that you have the required experience for the certification sought.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Building Code Administrators and Inspectors Board issue a final order denying Petitioner’s application for certification as a plumbing inspector. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2014.
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Petitioner possessed a valid master plumbers license issued by New York City. There was no evidence that New York City had ever issued Petitioner a plumbing contractors license, or that the master plumbers license was the same as a plumbing contractors license in New York City. At all times material to this proceeding, the State of New York did not administer a plumbing contractors licensing examination or a master plumbers licensing examination, having delegated this responsibility to the several municipalities within the State of New York, including but not limited to New York City. A plumbing contractors license or a master plumbers license issued by New York City or other cities within the State of New York are not valid in any jurisdiction other than the issuing jurisdiction. Petitioner has some 40 years experience in the plumbing business within New York City. Florida's Plumbing Contractors Examination prepared and administered by National Assessment Institute in accordance with Rule 61G4-16.001(13), Florida Administrative Code, consists of two parts: Part I, Business and Financial Management; and Part II, General Trade Knowledge. Part I is comprised of the following major content areas. The number in parentheses is the approximate percentage of the examination devoted to that content area. Maintaining Cash Flow (15 percent) Estimating and Bidding a Job (20 percent) Negotiation and Interpretation Contracts and Agreements ( 5 percent) Processing Change Orders ( 5 percent) Purchasing Control ( 5 percent) Contract Scheduling ( 5 percent) Controlling Costs of Fixed Assets ( 5 percent) Obtaining Insurance and Bonding (10 percent) Complying with Contracting Laws and Rules (15 percent) Personnel Management ( 5 percent) Complying with Payroll and Sales Tax Laws ( 5 percent) Interpretation of Financial Statements and Reports ( 5 percent) Under each of the major content areas are listed the tasks and the knowledge required to perform them. There are approximately 49 different tasks listed under Part I. Part II of the examination consist of three questions each of which tests the applicant's knowledge of design, installation, and maintenance of several different systems. Approximately 40 percent of the examination is devoted to question one and 40 percent to question two and 20 percent to question three. Under Part II the applicant is tested on the design, installation and maintenance of 27 different systems. Petitioner submitted several examinations (some were not complete) that he contended were master plumbers licensing examinations given by New York City in 1970, 1972, 1974 1976, 1982, 1983, 1985, 1987 and 1991. However, only one or two were marked as to the source or origin. The number of questions on the examinations ranged from 16 to 70 questions. The only major content area listed in Part I of the Florida plumbing contractors examination covered by the examinations submitted by the Petitioner was "Estimating and Bidding a Job". However, the coverage of "Estimating and Bidding a Job" in the tests submitted was cursory at best. The examinations submitted by the Petitioner covered Part II in somewhat more detail than they did Part I. Question one of Part II was covered fairly extensively whereas Question two was somewhat less extensive than Question one, with Question three's coverage being only slight. The design, installation and maintenance of only three out of nine systems listed in Question two, and only one out of eleven systems listed in Question three were covered in the examinations submitted by the Petitioner. All of the systems listed in Question one were covered to some degree by the examinations submitted by the Petitioner. Since the Petitioner was unable to submit a copy of the master plumbers examination administered by New York City in 1952, a determination of whether that particular examination is "substantially equivalent" to the Florida Plumbing Contractors licensing examination currently in use cannot be made. However, even assuming that the New York City examinations submitted by the Petitioner were the same as the examination taken by the Petitioner in 1952, the New York master plumbers licensing examination is not "substantially equivalent" to the Florida Plumbing Contractors licensing examination currently in use..
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a Final Order denying the Respondent's application for certification as a plumbing contractor by endorsement. RECOMMENDED this 4th day January, 1995, in Tallahassee, Florida WILLIAM R. CAVE 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 4th day of January, 1995. law. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4184 The parties did not file any proposed findings of fact and conclusions of COPIES FURNISHED: Phillip Suna, Pro se 2301 Gulf of Mexico Drive Apt. 93-N Longboat Key, Florida 34228 Clark Jennings, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Departmemt of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Ste. 300 Jacksonville, Florida 32211-7467
The Issue The issue presented is whether the Respondent is guilty of the allegations contained in the Administrative Complaint and therefore, in violation of Sections 489.127(1)(d) and 489.129(1)(j), Florida Statutes. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Byron K. Godwin, Jr., is a certified plumbing contractor and a certified air conditioning contractor, having been issued license numbers CF C019153 and CA C020205. On July 6, 1978, the County Court Civil Division of Hillsborough County, Florida, entered a final judgment for Gorman Company of Tampa Inc., against the Respondent and Robert ,L. Hatfield in the amount of $2,252.36, including costs. On September 25, 1978, the Circuit Court, of the Tenth Judicial Circuit of Polk County, Florida, entered a final judgment for Peninsular Supply Company, Inc., against the Respondent, and Hatfield in the amount of $12,164.60, including costs. These judgments were based upon unpaid past-due bills resulting from the operation of Godwin and Hatfield, a construction company jointly owned by the Respondent and Hatfield. As of December 30, 1980, these judgments had not been satisfied by the Respondent, by Hatfield, or by anyone else. On March 11, 1980, a federal tax lien was filed with the Clerk of the Circuit Court of Hillsborough County, Florida, against the Respondent and Hatfield in the amount of 73,712.19. On May 8, 1980, the Respondent and Hatfield entered into an installment agreement with the Internal Revenue Service for the purpose of repaying the tax lien. Although both the Respondent and Hatfield knew about their tax deficiency, neither the Respondent nor Hatfield knew that the tax lien had been filed. Both men were advised by a representative of the IRS that a tax lien would not be filed if they agreed to pay the taxes due in installments. The Respondent attached a letter of explanation regarding the tax deficiency to his application. As of December 30, 1980, the tax lien had not been satisfied by the Respondent or Hatfield. On December 26, 1980, the Respondent made application to the Construction Industry Licensing Board to become a certified plumbing contractor. On his application, the Respondent answered in the negative the following question, 7(c): Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which -- such person was a member of the personnel? On his application, the Respondent also answered in the negative the following question, 7(d): Are there now any unpaid past-due bills or claims for labor, materials or services as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? The Respondent admitted that he was aware of the outstanding judgments, and, from the, application, it, is clear the outstanding judgments related to him as the applicant. In the space following question 7(i), the Respondent signed as applicant and then as corporate president and noted there was no vice president.
Recommendation Having found the Respondent guilty of violating Section 489.127(1)(d), Florida Statutes, by knowingly filing an application Containing false information, and thereby being guilty of violating Section 489.129(1)(j) , Florida Statutes, and in consideration of the facts in mitigation, it is recommended that the Board take no action against the Respondent's air conditioning contractor's license, which was not related to the application in question in this case. It is further recommended that the Board administratively revoke the Respondent's plumbing contractor's license with leave to file a complete and correct application for the Board's consideration. DONE and RECOMMENDED this 22nd day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 22nd day of December, 1983. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32301 Mary Ann Stiles, Esquire One Mack Center, Suite 1604 501 East Kennedy Boulevard Tampa, Florida 33602 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Amended Administrative Complaint, Stephen Wesley Williams, d/b/a Superior Design Construction, Co. Inc., was licensed as a Florida State Certified Building Contractor and a Florida State Certified Pool/Spa Contractor, having been issued license numbers CRC 045849 and CPC 56443 respectively. His licensure status for the Residential Contractor license is designated as "Current, Active." His licensure status for the Pool/Spa Contractor license is designated as "Delinquent, Active." On or about December 19, 2001, Respondent, doing business as Superior Design Construction Company, Inc., entered into a contract with Thomas and Denise Shinn (the Shinns) for construction of a residential swimming pool and pool enclosure to be located at 4050 Retford Drive, Jacksonville, Florida. The contract price was $40,000.00. Respondent obtained a building permit for the job in question as "Superior Design Const Co." The contract does not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. The Department's records establish that Respondent's Certificate of Authority for Superior Design and Construction as a Contractor Qualified Business was issued on May 9, 1997, but has been null and void since August 31, 1999. Construction on the project began around January 2002. Work on the project ceased in or around March 2002. The construction was substantially completed when work ceased on the pool. Mr. Shinn described it as "98 percent of it was finished except for the heater." Other than the heater not being installed, Mr. Shinn considered the few other items that were not completed as minor. The contract specified the installation of a heat pump called an Ice Breaker. This type of pump was specified because it can both heat and cool a pool, which is what the Shinns wanted. Mr. Shinn paid Respondent a total of $38,050 for the job. According to Mr. Shinn, he withheld the final payment of $1,950 because the Ice Breaker heat pump was not installed. According to Respondent, he did not put in the heat pump because he had not been paid the remaining $1,950. The portion of the contract entitled Contract Price & Payment Schedule requires a payment of $1,000 at contract execution and four subsequent payments: Payment #1 - 35% due at Excavation; Payment #2 - 30% due at Gunite; Payment #3 - 30% due at Deck; Payment #4 - 5% due at Plaster. The amount listed for payment number 4 is $1,950. Included in the General Terms and Conditions portion of the contract is the following: PAYMENTS & COLLECTIONS. Contractor reserves the right to stop work at any time past due payment occurs. Owner hereby expressly agrees to such work stoppage and any such work stoppage shall not constitute a breach of contract by contractor. If collection is required of any amounts due under the terms of this contract, or any subsequent approved schedule, owner expressly agrees that he shall be responsible for 18% interest and reasonable attorney's fees for trial, appeal and all costs. Mr. Shinn contacted Respondent several times regarding completion of the contract. While Respondent did not answer many of Mr. Shinn's calls, he did come to the Shinn's home at one point to resolve the situation. However, the heat pump issue remained unresolved. Out of frustration, Mr. Shinn contacted an attorney who wrote a demand letter to Respondent. On or about October 31, 2002, the City of Jacksonville, Department of Public Works, Building Inspection Division, sent a letter to Mr. Shinn notifying him that Respondent had not obtained any inspections for 180 days and that state law could consider this project abandoned. The letter suggested that he contact Respondent immediately to attempt to rectify this situation. Mr. Shinn continued to attempt to contact Respondent but was unsuccessful. Respondent did not notify the Shinns in writing that he was canceling the contract. He did not go to the city to cancel the permit. One work item that was not completed when Respondent ceased working on the job was an unfinished electrical socket near the pool. Mr. Shinn hired Thompson Electric to complete this electrical work that was contemplated by the contract. As a result, Mr. Shinn paid $207.50 to Thompson Electric to have this work completed. In January of 2004, Mr. Shinn contracted with Pinch- A-Penny to install a heater in the pool as one had never been installed. He paid Pinch-A-Penny $3,777.09 to install a pool heater. Mr. Shinn chose to install only a pool heater and not the heating and cooling system specifically referenced in the contract (Ice Breaker) because the Ice Breaker would have cost him $5,500 from Pinch-a-Penny. The amount needed to complete the job as contracted totaled was $5,707.50, which includes $207.50 for Thompson Electric and $5,500.00 for the Ice Breaker heat pump, which is what Pinch-a-Penny charges. Subtracting the $1,950 that the Shinns never paid Respondent leaves a balance of $3,757.50 that the Shinns paid or would have to pay to get the completed pool as contemplated by the contract. As of June 2, 2005, the Department's costs of investigation and prosecution, excluding legal costs, totaled $614.77. Respondent's construction company went out of business on a date that is not clear from the record although Respondent described this job as "about the last pool I built." Clearly, he was no longer in the construction business on the date of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing a $100.00 fine to be deposited in the Construction Industries Recovery Fund for a violation of Section 489.1425; issue a notice of noncompliance pursuant to Section 489.119(6)(e); impose fines in the amount of $500 for abandonment of a construction job; $500 for misconduct; and $100 for failure to put his license number on the contract; pay $3,757.50 in restitution; and require Respondent to pay $614.77 in costs of investigation and prosecution. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 11th day of August, 2005. COPIES FURNISHED: Brian Elzweig, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Wesley Williams 3146 Brachenbury Lane Jacksonville, Florida 32225 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 6, 2009, the Amended Order of Penalty Assessment issued on March 11, 2009, and the Second Amended Order of Penalty Assessment issued on October 15, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the Amended Orders of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-059-D7, and being otherwise fully advised in the premises, hereby finds that: 1. On March 6, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 6, 2009, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 11, 2009, the Department issued an Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment assessed a total penalty of $23,054.38 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Amended Order of Penalty Assessment included a Notice of Rights wherein CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On March 11, 2009, the Amended Order of Penalty Assessment was served by personal service on CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 11, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE signed a Payment Agreement Schedule for Periodic Payment of Penalty in Case No. 09- 059-D7. A copy of the Payment Agreement Schedule for Periodic Payment of Penalty is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On March 11, 2009, the Department issued an Order of Conditional Release from Stop-Work Order in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Order of Conditional Release from Stop-Work Order is attached hereto as “Exhibit D” and incorporated herein by reference. 7. _ On March 27, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Petition for Formal Hearing Under Sections 120.569 and 120.57 with the Department. The Petition for Formal Hearing Under Sections 120.569 and 120.57 was forwarded to the Division of Administrative Hearings on April 13, 2009, and the matter was assigned DOAH Case No. 09-1841. 8. On October 15, 2009, the Department issued a Second Amended Order of Penalty Assessment in Case No. 09-059-D7 to CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. The Second Amended Order of Penalty Assessment assessed a total penalty of $5,599.61 against CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On October 16, 2009, the Department filed an Unopposed Motion to Amend Order of Penalty Assessment. The Administrative Law Judge entered an Order on October 19, 2009, which granted leave to amend the order of penalty assessment and filed for record the Second Amended Order of Penalty Assessment. A copy of the ‘Order is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On November 2, 2009, CHRISTOPHER BURTIS DBA C BURTIS PLUMBING SERVICE filed a Notice of Voluntary Dismissal with the Division of Administrative Hearings. Subsequently, on November 4, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
The Issue Whether Petitioner may be granted provisional certification as a plumbing inspector and provisional certification as a mechanical inspector.
Findings Of Fact Respondent Florida Building Code Administrators and Inspectors Board (Board) is the executive branch agency, within the Department of Business and Professional Regulation, charged, among other duties, with administering Part XII, Chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors and mechanical inspectors. The Board denied Petitioner’s applications for provisional licensing as a plumbing inspector, and as a mechanical inspector, because his application(s) “does not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator, that you have the required experience for the certification sought.” At all times material, Robert McCormick was Respondent Board’s Chairman. The Board considers applications for, and licenses applicants as, building inspectors, plans examiners, and building code administrators. Such personnel usually work with municipal, county, or state entities, although in some places private contractors provide such services. Licensees review proposed construction plans of both residential and commercial projects as well as monitor the progress of construction to assure that all building code standards are met. Each construction trade has a specific and complex code of regulations. Inspectors in each category must assure compliance with that respective trade’s regulations. Most of the work of an inspector is performed in the field at a job site. Plumbing and mechanical inspectors must be versed in both residential and commercial construction codes. The mechanical trade is, at minimum, concerned with heating, air- conditioning, and ventilation systems. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. At hearing, Petitioner submitted no information whatsoever about his experience in these areas, and relied exclusively upon his application affidavits. Petitioner is employed by a public entity, the City of Deland. The Board has issued him a provisional license as a building inspector. As a building inspector, Petitioner reviews structural and non-structural aspects of construction for one- and two-family dwellings, as well as means of egress and accessibility, but he does not address specific systems or codes, such as plumbing and mechanical, within the structure to assure compliance with the Florida Building Code. Petitioner has already taken and passed both the Florida-required test for standard plumbing inspector certification and for standard mechanical inspector certification. Mr. McCormick, testifying on behalf of the Board, acknowledged Petitioner’s successful test results, but considered Petitioner’s passing the examination to be the last statutory requirement time-wise (or just one of the statutory prongs) for obtaining the standard license. For provisional licenses, the Board still requires five years’ experience as specified by statute for each specialized field (plumbing and mechanical) to be attested-to by adequate affidavits. (TR-69) By virtue of having a provisional building inspector certification issued by the same Board involved with the present applications, Petitioner has already demonstrated, via affidavit, five years’ experience in general building construction. As part of his application(s) for the plumbing and mechanical inspector provisional licenses, Petitioner submitted two affidavits of his current employer and six affidavits from others with knowledge of his work experience. Some of these affidavits also had been used by Petitioner in applying for his building inspector license. The affidavits were signed by engineers, building code administrators, and/or licensed contractors, and account for Petitioner’s work experience from 1988 to the present, most of which experience occurred in Ohio. The affidavits purport to describe, in general terms, Petitioner’s experience, job duties, and overall knowledge of the plumbing and mechanical trades during that time frame. The Board has created an Application Review Committee, consisting of Board members, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Mr. McCormick was on the Application Review Committee which reviewed Petitioner’s application on October 14, 2008, and recommended against Petitioner’s provisional licensure in the plumbing and mechanical trades. There is no persuasive evidence that the Application Review Committee made any direct inquiries of Petitioner’s affiants to supplement their affidavits or that it was required to do so. There is no evidence that Petitioner was notified of the Application Review Committee’s meeting or that the law requires that Petitioner be notified of it. However, Petitioner was notified, according to law, of the Board’s meeting on October 17, 2008, when a vote was taken and his pending mechanical and plumbing applications were denied, effective with the Board’s October 30, 2008, Intent to Deny. There is no evidence that Petitioner was present or offered any additional information at the Board’s meeting to support his application(s). According to Mr. McCormick, Petitioner’s affidavits did not describe Petitioner’s work experience in sufficient detail for the two respective categories of inspector. Overall, Mr. McCormick felt all of Petitioner’s affidavits for plumbing and mechanical provisional certification were not specific in the two categories chosen. The Application Review Committee and the Board were looking for affidavits that showed discrete and significant expertise in each trade category, not just experience as a general contractor overseeing other experts in those trades and systems. Petitioner previously had been a general contractor and a licensed Ohio Real Estate Corporate Salesperson. Petitioner’s status as a general contractor in Ohio was insufficient, according to Mr. McCormick, because nothing in the affidavits correlated the licensure of general contractors in Ohio with licensure of general contractors in Florida for purposes of trade category licensing and because Petitioner had already received credit for his prior general contracting experience via his Florida provisional building inspector license. (See Finding of Fact 9.) Mr. McCormick specifically addressed some of these affidavits at hearing. He indicated that the affidavit of Matt Adair, a building official in Deland, Florida, was vague as to five years of the necessary mechanical or plumbing experience, but that it had been accepted by the Application Review Committee as the public employer’s intent to utilize Petitioner for commercial plumbing and mechanical inspections if Petitioner were provisionally licensed in those categories. An affidavit by Jim Ziegler, an Ohio building official, spanned 20 years, and addressed Petitioner’s success in commercial plumbing, masonry, and HVAC (an air-conditioning/mechanical trade), only because of Petitioner’s “hands on” workmanship and supervisory skills as a general contractor in Ohio. The affidavit of Frank Pirc covered 1996-2006, and only described Petitioner as a supervising general contractor with good knowledge of commercial and residential cooling systems. The affidavit of John Bogert, a general contractor, was very specific for plumbing for 1995- 2006, but in Mr. McCormick’s view, Mr. Bogert’s affidavit was unacceptable because it conflicted with an employment history submitted by Petitioner in the same application file. (See affidavits for correct name spellings, rather than the Transcript, which uses phonetic spellings.) Mr. McCormick further stated that no affiant actually identified the period of full-time employment that Petitioner worked in each trade category. Mr. McCormick acknowledged that Petitioner had demonstrated 20 years’ experience in general building, which encompasses some plumbing and some work in the mechanical trade, spread out over that 20-year time frame. However, he testified that the Committee and Board were looking for evidence, via affidavit, that the applicant had a minimum of five years solely dedicated to each trade or five years of full-time work experience in plumbing and five years of full-time work experience in a mechanical trade, not just five years’ total experience based on the applicant’s time in both trades added together. Moreover, in his opinion on behalf of the Board, 20 years as a building contractor had already been acknowledged with the granting of Petitioner’s provisional building inspector’s license. To illustrate his foregoing analysis, Mr. McCormick divided five years into average full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year long period of employment, but he did not specify that the Committee or Board was adding up full-time work hours to otherwise modify the five years per category requirement of the statute or to alter any Administrative Code rules. Mr. McCormick summed-up problems the Committee and the Board had with Petitioner’s affidavits, saying they showed that Petitioner “did a lot of things over 20 years . . . [but] It is not incumbent on the Board to figure out which part of those 20 years to assign to which trade.” (TR-65) Mr. McCormick acknowledged that, added together, the affidavits submitted by Petitioner covered 20 years of employment, but he further testified that the Committee and Board were looking for affidavits which showed an applicant’s specific duties by trade category, covering specific times/dates, which specific times/dates amounted to five years for each category of building trade.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Building Code Administrators and Inspectors enter a Final Order denying Petitioner’s applications. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2009.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1997.
The Issue Whether Respondent engaged in construction contracting without a license as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact DBPR is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. DBPR has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13, Florida Statutes. At all times material to this matter, Mr. Johnson was the owner of J3. Mr. Johnson is not licensed, registered, or certified to perform construction contracting services in Florida. At the heart of this case is whether Mr. Johnson “offered, contracted, or performed regulated construction contracting services, including but not limited to, installation of a pool pump at 3905 Cardiff Place, Parrish, Florida.” Mr. Johnson, via J3, provided pool service, specifically pool cleaning to Mr. Sylvester. Mr. Sylvester thought the pool cleaning service was very good, and agreed that the two men (Mr. Johnson and Mr. Sylvester) had a “good customer-client relationship.” In April 2016, Mr. Sylvester hired Mr. Johnson to install a pool pump motor (motor) at a residence located at 3905 Cardiff Place, Parrish, Florida.5/ At that time, Mr. Sylvester did not know Mr. Johnson was not licensed to install a motor. On the installation day, Mr. Johnson left a voicemail message for Mr. Sylvester advising him that the motor had been installed, but it would not work. Mr. Johnson speculated that the electricity to the motor was turned off, and the switch was located in a closed garage. After arriving at the house, Mr. Sylvester turned the electricity on, the motor did not work, and Mr. Sylvester called Mr. Johnson. Mr. Johnson came to the pool location and worked on the motor. The motor started working. On April 7, 2016, after the motor was installed, Mr. Sylvester (or his wife) wrote a check to “J3 Pools & Pressure Washing” for $310.00 for the “motor.” A warranty was included with the installation; however there was no description of the type or length of the warranty provided.6/ In April 2016, Mr. Johnson sold his “pool route,” including the 3905 Cardiff Place location to another company. When contacted about the motor not working, Mr. Johnson advised Mr. Sylvester to contact the other company for the warranty work. Mr. Sylvester credibly testified that his only contact with the other company was shortly after the notification that Mr. Johnson had sold his pool route. Mr. Sylvester called the other company and “fired” them, as he wished to engage a different pool service. Approximately three to four months (July or August 2016) after the motor was installed, it stopped working. The pool turned green because the motor was not cycling on and off. This complaint was generated after the motor failed, and it came to light that Respondent was not licensed. Petitioner established that it incurred $217.09 in investigative costs while investigating this complaint. The evidence is clear and convincing that Respondent’s installation of the motor constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in the Administrative Complaint; Imposes an administrative fine of $3,000; and Requires Mr. Johnson to pay the Department’s investigative costs of $217.09. DONE AND ENTERED this 12th day of June, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2017.
