The Issue Whether Respondent, who is licensed as a Plans Examiner, a Building Inspector, and a Building Code Administrator, committed the offenses alleged in the three-count Administrative Complaint and, if so, the penalties if any that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida with the responsibility to regulate Building Code Administrators and Inspectors pursuant to Section 20.165, Chapter 455, and Part XII of Chapter 468, Florida Statutes. At all times relevant to this proceeding, Respondent held licenses as a Standard Plans Examiner in Building and Mechanical; a Standard Inspector in Building and Mechanical; and a Building Code Administrator. Section 468.603(1), Florida Statutes, provides the following definitions relevant to this proceeding: Building code administrator" or "building official" means any of those employees of municipal or county governments with building construction regulation responsibilities who are charged with the responsibility for direct regulatory administration or supervision of plan review, enforcement, or inspection of building construction, erection, repair, addition, remodeling, demolition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. This term is synonymous with "building official" as used in the administrative chapter of the Standard Building Code and the South Florida Building Code. . . . Section 468.603(2), Florida Statutes, provides the following definition relevant to this proceeding: (2) "Building code inspector" means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. Section 468.603(6), Florida Statutes, provides the following definitions relevant to this proceeding: "Categories of building code inspectors" include the following: "Building inspector" means a person who is qualified to inspect and determine that buildings and structures are constructed in accordance with the provisions of the governing building codes and state accessibility laws. * * * (e) "Mechanical inspector" means a person who is qualified to inspect and determine that the mechanical installations and systems for buildings and structures are in compliance with the provisions of the governing mechanical code. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Plans examiner" means a person who is qualified to determine that plans submitted for purposes of obtaining building and other permits comply with the applicable building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other applicable construction codes. Categories of plans examiners include: (a) Building plans examiner. * * * (c) Mechanical plans examiner. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Building code enforcement official" or "enforcement official" means a licensed building code administrator, building code inspector, or plans examiner. Ramon Melendez, doing business as R.E.M. Roofing, Inc., was not licensed as a construction contractor in Florida at any time relevant to this proceeding. Mr. Melendez was not individually licensed as a construction contractor in Florida at any time relevant to this proceeding. R.E.M. Roofing, Inc., was not qualified as a construction business by any certified or registered contractor in Florida at any time relevant to this proceeding. On or about March 20, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Pedro Camacho to re-roof the residence located at 3961 N.W. 170th Street, Miami, Florida, for the sum of $3,000. Mr. Camacho paid Mr. Melendez the agreed sum in cash based on the contract dated March 20, 1998. On or about June 3, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Santos Valentin to re- roof the residence located at 4412 N.W. 185th Street, Opa Locka, Florida, for the sum of $2,800. Mr. Valentin paid R.E.M. Roofing, Inc. the sum of $1,400 on June 8, 1998. Mr. Valentin paid Mr. Melendez the additional sum of $800 on June 10, 1998. Both payments, which were by check, were for the roofing work described in the contract dated June 3, 1998. On April 6, 1998, Respondent applied for and obtained a permit for the Camacho roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on April 6, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Camacho roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. On June 8, 1998, Respondent applied for and obtained a permit for the Valentin roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on June 8, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Valentin roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. Miami-Dade County Compliance Investigator Daniel Vuelta filed criminal charges against Respondent in two separate criminal cases. One case was for his involvement in the Camacho roofing project and the other was for his involvement in the Valentin roofing projects. These cases were brought in Miami- Dade County Court and assigned case numbers M99-57926 and M99- 57931. In each case, Respondent was charged with one count of Unlawful Application for Building Permit and one count of Aiding and Abetting an Unlicensed Contractor. All charges were first- degree misdemeanors. On February 22, 2001, Respondent entered into a plea agreement to resolve those criminal charges. Respondent entered a plea of guilty to each of the two counts in Case M99-57931, and he was subsequently adjudicated guilty of each count. As part of the plea agreement, the State agreed to nolle pross Case M99-57926. The crimes to which Respondent entered a guilty plea involved fraudulent building permits and, consequently, were directly related to building code enforcement. Petitioner’s investigative costs for this case, excluding costs associated with any attorney’s time, were $427.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the offenses alleged in Counts I, II, and III. It is further RECOMMENDED that the final order revoke Respondent’s licensure and impose an administrative fine against him in the amount of $3,000. It is further RECOMMENDED that Petitioner order Respondent to pay its investigative costs, excluding costs associated with any attorney’s time, in the amount of $427.29. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 7th day of April, 2005.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
The Issue The issues that were presented for disposition in the above-styled cases were whether Respondent committed certain alleged violations of Chapter 489, F.S. and if so what discipline is appropriate. As stated below, the parties stipulated to the violations, leaving only the issue of discipline to be resolved.
Findings Of Fact Gordon Lee Cederberg is, and has been at all times material hereto, a licensed registered roofing contractor, having been issued license number RC 0051346, by the State of Florida. At all times material Respondent was the licensed qualifier for Allied American Roofing Company and was responsible in such capacity for supervising its contracting activities. Allied American Roofing Company was dissolved on November 4, 1988. Stipulated Violations By stipulation, Respondent has admitted the following allegations of the amended administrative complaint in DOAH #91-8319: 3. CASE NO. 0106373 COUNT THREE Respondent d/b/a Allied American Roofing contracted with Michael Roberts on April 4, 1988 to reroof a home located at 530 Mason Street, Apopka, Florida. The contract price was $942.80 and was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the City of Apopka Building Department. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a municipality, to wit, Apopka, Florida, by failing to obtain a permit and inspection is as required by that municipality. 4. CASE NO. 0107766 COUNT FOUR Respondent's license was under suspension by the Florida Construction Industry Licensing Board between August 10, 1988, and March 3, 1989. Respondent d/b/a Allied American Roofing contracted with Nancy Wiegner on September 22, 1988, to reroof a home located at 15 Kentucky Street, St. Cloud, Florida. The contract price was $1,600.00 and it was paid in full. Respondent commenced work under the contract but failed to obtain a permit prior to commencing such work from the City of St. Cloud, Florida, and the municipality issued a stop order on the job. Respondent further engaged in contracting in a municipality where he had not registered. By reason of the foregoing allegation, Respondent has violated Section 489.129(1)(j), F.S., in that he failed in a material respect to comply with the provisions of Section 489.117(2), F.S., in that he engaged in contracting in a municipality, to wit, St. Cloud, Florida, where he had failed to comply with the local licensing requirements for the type of work covered by his registration. COUNT FIVE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully deliberately disregarded and violated the applicable building code of a municipality, to wit, St. Cloud, Florida by failing to secure a permit as required by that municipality. COUNT SIX By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SEVEN By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting. 8. CASE NO. 0112740 COUNT EIGHT Respondent d/b/a Allied American Roofing contracted with Emma Smith on October 3, 1988 to reroof a home at 1911 Mullet Lake Park Road, Geneva, Seminole County, Florida. The contract price was $4,100.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly construct a watertight roof which continued to leak and caused damage to the home. Respondent has failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the said contract, although he was requested to do so. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., in that the Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT NINE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT TEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor the written warranty described in paragraph twenty-six above. COUNT ELEVEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 12. CASE NO. 89-001674 COUNT TWELVE Respondent d/b/a Allied American Roofing Company contracted with Thelma Beck to reroof a home at 3910 Pineland Ridge Road, Orlando, Orange County, Florida on January 26, 1989 for a price of $2,270.00. Respondent accepted a $100.00 deposit for said job; the work was not begun and the $100.00 deposit was returned to Mrs. Beck. By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT THIRTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT FOURTEEN Respondent d/b/a Allied American Roofing contracted with Morris Remmers to reroof a home at 8719 Butternut Boulevard, Orlando, Orange County, Florida, on or about February 23, 1989. The contract price was $2,870.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Orange County Building Department. By reason of the foregoing allegation, Respondent is guilty of violating Section 489.129(1)(n), F.S., in that Respondent proceeded in a job without obtaining an applicable local building department permit and inspections. COUNT FIFTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while his license was suspended. COUNT SIXTEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 17. CASE NO. 89-008737 COUNT SEVENTEEN Respondent d/b/a Allied American Roofing contracted with Robert Speirs to reroof a dwelling at 2467 Fieldingwood Road, Maitland, Seminole County, Florida on or about October 14, 1988. The contract price was $3,600.00. Respondent proceeded to work the job but failed to obtain a permit and secure required inspections from the Seminole County Building Department. Respondent failed to properly construct a water tight roof which continued to leak. Respondent failed to honor the three (3) year labor and twenty (20) year material warranty that was part of the contract although he was requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(n), F.S., in that Respondent proceeded on a job without obtaining an applicable local building department permit and inspections. COUNT EIGHTEEN By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S., by engaging in contracting while license was suspended. COUNT NINETEEN By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act of gross negligence, incompetency and/or misconduct in the practice of contracting by failing to honor his written warranty described in paragraphs forty-seven above. COUNTY TWENTY By reason of the aforesaid allegations, Respondent is guilty of violating 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 21. CASE NO. 109636 COUNT TWENTY-ONE Respondent d/b/a Allied American Roofing Company contracted with Daniel J. Doherty to reroof a home at 225 Dover Wood Road, Fern Park, Seminole County, Florida on October 2, 1988, for the contract price of $3,590.00 which was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to construct a watertight roof, which contributed to water damage to the interior of Mr. Doherty's home. Respondent failed to honor the five (5) year labor and twenty (20) year material warranty that was part of the contract, although he was requested to do so. By the reason of the foregoing allegations, Respondent has violated Section 489.129(1)(n), F.S., by proceeding on the job without obtaining a local building department permit and inspections. COUNT TWENTY-TWO By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(j), F.S., by failing in a material respect to comply with the provisions of Section 489.127(1)(e), F.S. by engaging in contracting while his license was suspended. COUNT TWENTY-THREE By reason of the foregoing allegations, Respondent has violated 489.129(1)(m), F.S., by committing gross negligence, misconduct, and/or incompetency in the practice of contracting by failing to honor his warranty as described in paragraph fifty-six above. COUNT TWENTY-FOUR By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. COUNT TWENTY-SEVEN Respondent d/b/a Allied American Roofing contracted with Gloria Viruet to reroof a home at 3010 (renumbered to 3007) Northwood Blvd., Orlando, Orange County, Florida on June 7, 1988. The contract price was $3,500.00. Respondent proceeded to complete the job without receiving a permit and securing required inspections from the Orange County Building Department. The Respondent failed to properly construct a watertight roof and a leak developed after construction. Respondent failed to honor the five (5) year labor and twenty (20) material warranty that was part of the said contract, although he has been requested to do so. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that Respondent willfully and deliberately disregarded and violated the applicable building code of a County, to wit, Orange County, Florida by failing to obtain a permit and inspections as required by that County. COUNT TWENTY-EIGHT By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting, by failing to honor his written warranty described in paragraphs seventy. COUNTY TWENTY-NINE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. 28. CASE NO. 0108263 COUNT THIRTY Respondent d/b/a Allied American Roofing Company contracted with John E. Hultin to reroof a home located at 3610 Lakeview, Apopka, Florida on November 7, 1987. The contract price was $2,900.00 and it was paid in full. Respondent proceeded to complete the job without obtaining a permit and securing required inspections from the Seminole County Building Department. Respondent failed to properly install a roof covering, violating Section 103 of the Standard Building Code, 1985 Standard of Installation of Roofing Coverings adopted by Seminole County and Seminole County Ordinance Section 40.51. The contract provided for a five (5) year labor warranty and a twenty (20) year material warranty. Respondent made several attempts to correct defects but has not fulfilled his warranty as the roof continued to leak. By reason of the aforesaid allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by failing to obtain a permit and inspections as required by that county. COUNT THIRTY-ONE By reason of the foregoing allegations, Respondent has violated Section 489.129(1)(d), F.S., in that the Respondent willfully and deliberately disregarded and violated the applicable building code of a county, to wit, Seminole County, Florida by installing the above described roof in a grossly negligent manner and in a manner which violated Section 103 of the Standard Building Code, 1985 Standard of Installation of Roof Covering, adopted by Seminole County and Seminole Ordinances Section 40.51. COUNT THIRTY-TWO By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practices of contracting by failing to honor his written warranty described above. COUNT THIRTY-THREE By reason of the aforesaid allegations, Respondent is guilty of violating Section 489.129(1)(m), F.S., by committing an act or acts of gross negligence, incompetency and/or misconduct in the practice of contracting. FACTS RELATED TO RESPONDENT'S PROPOSED MITIGATION Respondent has been engaged in the practice of roofing contracting for over twenty years. Prior to moving to Florida in 1983 his company worked in Michigan, Ohio and Indiana on large commercial jobs. In 1983 he was employed by the Disney company to do commercial roofing work. After licensure in Florida, Cederberg continued with large public works and commercial jobs in Florida. Sometime around 1988, after a disastrous reversal of fortune, the company filed for bankruptcy. Although he was utterly unfamiliar with the practice of residential roof contracting, particularly the demanding supervision involved, Gordon Cederberg began doing residential work. Around this same time Cederberg's wife left him and he was given custody of three children, ages three, six, and nine. He was emotionally distraught and obtained counseling and financial and other support from his church group. Cederberg's roofing contractor's license was suspended by the Construction Industry Licensing Board from August 1, 1988 to March 1, 1989, during which time he continued to work, due to financial pressures. Warranty work was not done due to his financial and emotional straits. According to Cederberg and his witnesses, he is in the process now of turning his life around. He operates on a smaller scale and is able to handle the work. He has one employee and has been able to avoid new complaints. He is still financially unable to provide restitution to the customers previously harmed.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: that the parties' stipulation with regard to dismissals and admissions described above be accepted by the Board and that the following penalty be imposed: a) 1000.00 fine; one year suspension, with this penalty suspended during, and removed upon successful completion of, probation with an appropriate timetable for restitution and the requirement that appropriate continuing education courses are completed; and payment of costs of investigation and prosecution. DONE and ENTERED this 31st day of December, 1992, at Tallahassee, Florida. MARY CLARK 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 31st day of December, 1992. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 William S. Cummins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack Snow, Esquire 407 Wekiva Spings Road, Suite 229 Longwood, FL 32779
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
