The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is now, and has been since 1982, a roofing contractor licensed to practice in the State of Florida. He holds license number RC 0041149. At all times material hereto, Respondent has been the licensed qualifying agent for Reinforcement Roofing and Painting Company (Reinforcement). On or about November 29, 1987, Reinforcement, through Respondent, entered into a written contract with Wayne Leidecker in which it agreed, for $4,655.00, excluding permit fees and taxes, to replace the roof on Leidecker's residence, located at 18280 S.W. 202nd Street in Miami, Florida. Shortly thereafter, Reinforcement obtained a permit from the Metropolitan Dade County Building and Zoning Department to perform the work specified in the contract. It then proceeded to begin work on the project. The felt underlayer of the new roof was improperly installed. Reinforcement laid the shingles over this improperly installed felt underlayer without first calling for a tin cap/anchor sheet inspection, in willful violation of the local building code. The result was a roof having a "wavy" appearance. To make matters worse, some of the shingles were not properly fastened to the roof deck. Furthermore, the metal eaves and gable drips were installed too close to the facie in violation of the local building code. The work on the Leidecker project, which was performed under the supervision of Respondent, was completed in January, 1988. The job, however, having been done in an incompetent manner, failed its final inspection. Efforts were subsequently made by Reinforcement, under the direction of Respondent, to correct the foregoing problems. These efforts were inadequate and unsuccessful. Consequently, the project was still unable to pass a final inspection. Leidecker was growing increasingly impatient. In the latter part of 1988, he had Charles H. Walton, the Vice-President of Bob Hilson & Company, Inc., examine the roof. Based upon his examination, Walton concluded, in a written report which he gave Leidecker, that "[d]ue to all of the above deficiencies, South Florida Building Code infractions and the waviness of the shingles, the only way that I can truthfully say that this roof can be properly corrected is to remove this existing shingle roof entirely to a smooth workable surface and reinstall a new 3-tab, 20 year type fungus resistant fiberglass shingle roof system, that meets all of the South Florida Building Code specifications and manufacturers' requirements." This was consistent with what Leidecker had been told by the building inspectors who had previously inspected the roof. Accordingly, after receiving Walton's report, Leidecker refused to allow Reinforcement to do any further patchwork on the roof. He expected Reinforcement to take the removal and reinstallation measures Walton had recommended in his written report. He would accept nothing less. By letter dated July 14, 1989, Respondent was informed that a formal hearing would be held before the Dade County Construction Trades Qualifying Board (CTQB) on the following four charges filed against him relating to the Leidecker project: Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3401.4(c) of the South Florida Building Code (SFBC) by failing to obtain the final roofing inspection required at a roofing job located at 18280 S.W. 202nd Street Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3403.3(h)(2) of the South Florida Building Code (SFBC) by failing to imbed sheets of roofing felt without wrinkles or buckles as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3408.3(c) of the South Florida Building Code (SFBC) by failing to install metal eave and/or gable drips so the bottom of said metal drips did not touch facie and did [not] have the minimum of a one-half inch clearance from the structure as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 10-22(a) of the Code of Metropolitan Dade County, Florida, in that they did fail to fulfill their contractual obligation to honor a six (6) year warranty in connection with roofing work done on the residence located at 18280 S.W. 202nd Street, Miami, Dade County, Florida. The hearing on these charges was held as scheduled on August 10, 1989. The CTQB found Respondent guilty of Charges 1, 2 and 3 and not guilty of Charge The following penalties were imposed: Charge 1- six-month suspension of Respondent's personal and business certificates and a fine of $1,000.00; Charge 2- six-month suspension of Respondent's personal and business certificates and a fine of $250.00; and Charge 3- official letter of reprimand and a fine of $250.00. In addition, he was directed to pay $257.00 in administrative costs. On October 12, 1989, Respondent made another appearance before the CTQB. He made a request that the foregoing penalties be reduced. His request was granted. The CTQB "lifted" his suspension, but with the caveat that if he did not timely pay his fines the suspension would be reinstated. Respondent failed to make timely payment. As a result, his suspension was reinstated. Neither Reinforcement, nor Respondent in his individual capacity, has yet to take the measures necessary to correct the problems with the Leidecker roof that were caused by the shoddy work done under Respondent's inadequate supervision. Respondent has been disciplined on two separate, prior occasions by the Construction Industry Licensing Board for conduct unrelated to that which is the subject of the charges filed against him in the instant case. On February 12, 1986, the Board issued a final order in Case No. 0053301 imposing a $250.00 administrative fine upon Respondent. On June 16, 1988, in another case, Case No. 81135, the Board fined Respondent $500.00 for violating the provisions of Section 489.129(1)(i), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant amended administrative complaint and suspending Respondent's license for a period one year and imposing upon him a fine in the amount of $3,500.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1990.
The Issue The principal issue in this case is whether certain local technical amendments to the Florida Building Code adopted by the Broward County Board of Review and Appeals (BORA) comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). As to Broward County, there is the additional issue of whether Broward County is a proper party to this proceeding.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and upon the parties' stipulations, the following findings are made: Findings about status of Broward County Respondent Broward County is a county created pursuant to the laws of the State of Florida. Broward County became a charter county effective on January 1, 1975, by a referendum approved by the voters of Broward County in November of 1974. In 1976, the Broward County Charter was amended to add a new Section 8.18, which the legislative history for the charter describes as establishing BORA as “an arm of Charter government.” Broward County has not voted to adopt any local amendments to the Florida Building Code. Findings about status of BORA Respondent BORA, is a board created under the provisions of the Charter of Broward County (the “Charter”). BORA was originally created in 1971 by a special act of the Florida legislature, 71-575, Laws of Florida, Special Acts of 1971. That special act adopted the South Florida Building Code, as the applicable building code for Broward County and included within the South Florida Building Code as Section 203 the following language, which created BORA: 203. Board of Rules and Appeals. In order to determine the suitability of alternate materials and types of construction, to provide for reasonable interpretation of the provisions of this code and to assist in the control of the construction of buildings and structures, there is hereby created a BORA, appointed by the appointing authority, consisting of twenty-four (24) members who are qualified by training and experience to pass on matters pertaining to building construction. Findings about status of Petitioners Petitioner, TRG-Aquazul, Ltd. ("TRG"), is a Florida limited partnership and is the developer of a high-rise multi- family residential building project located in Broward County (“Project”) which is subject to the Florida Building Code, as amended, in Broward County. Petitioner, Alfonso Fernandez-Fraga, is a principal of Initial Engineers. Mr. Fernandez-Fraga and Initial Engineers are the mechanical engineers of record on the Project. Mr. Fernandez-Fraga's firm has designed other high-rise residential buildings in Broward County in the past and plans on doing more such projects in the future. Petitioners allege that they will be materially and adversely affected by the application of the Broward County local technical amendments to the Florida Building Code in that the application of said technical amendments to the Project will require a redesign of the mechanical systems of the Project to comply with those technical amendments and undertaking such redesign will cost significant time and money. Alfonso Fernandez-Fraga submitted plans to the Broward County Building Department for approval in connection with the Project. The plans submitted included plans for smoke control measures. The smoke control measures were not approved by the chief mechanical official because in his estimation they did not comply with the local technical amendments to the Florida Building Code enacted by BORA on March 1, 2002. Despite the Broward County Building Official’s suggestion that Mr. Fernandez-Fraga appeal the Building Official’s decision interpreting the applicable code, Mr. Fernandez-Fraga decided not to appeal that decision. Rather, Mr. Fernandez-Fraga chose to challenge the validity of the local technical amendments to the Florida Building Code adopted by BORA, a different appeal than the one discussed with the Building Official. TRG, through its engineer and its architect of record on the project, attempted to comply with option four of the local technical amendments at issue here, which allows one to achieve an understanding with the local building official on an alternative method for smoke control. TRG could not, and did not, reach that understanding with the Broward County Building Official. The building that TRG proposes to build is over 75 feet high, which makes it subject to the local technical amendments at issue here. At the time the local technical amendments at issue here were being adopted, Petitioners were not concerned with such developments because at that time they did not have any projects in Broward County. Findings about BORA's amendment process Once it was clear that Florida was going to have a new statewide Florida Building Code, BORA embarked upon a course of action to adopt several local technical amendments to the Florida Building Code. Such amendments were allowed, with certain qualifications and requirements, by the then-new statutes providing for the implementation of a new Florida Building Code. On March 1, 2002, BORA adopted the local technical amendments that are at issue here. Those two local technical amendmants, Sections 412 and M403.6.4, contained standards for the application and testing of smoke control systems for high-rise buildings. The two amendments were more stringent than the corresponding requirements in the Florida Building Code. Each of these local technical amendments had been part of Broward County’s local building code in effect prior to the adoption of the Florida Building Code, and as set forth in the South Florida Building Code, Broward Edition. BORA sought to maintain the status quo within Broward County with respect to the adoption of these two local technical amendments to the Florida Building Code, a status quo that had been in effect since the mid 1980's. The two local technical amendments at issue here did not introduce any new subjects that had not previously been contained in the South Florida Building Code, Broward Edition. The process leading up to the adoption of amendments on March 1, 2002, began several months earlier with the appointment of a committee and a sub-committee to discuss and draft proposed amendments. The chairman of BORA’s Mechanical Committee appointed a subcommittee which reviewed materials and made decisions with respect to the Local Amendments and made recommendations to the Mechanical Committee which, in turn, made recommendations to BORA The meetings of BORA’s Mechanical Committee and its Smoke Control Subcommittee were not publicly noticed in the Sun Sentinel or any other local newspaper of general circulation. No findings or determinations made by BORA’s Mechanical Committee or Smoke Control Subcommittee with respect to the local need to enact the Local Amendments are reflected in the minutes of their meetings. On December 13, 2001, BORA held a hearing to receive and consider information from the subcommittee and the committee regarding the pending proposed amendments. BORA’s December 13, 2001 hearing was not publicly noticed in the Sun Sentinel or any other local newspaper. Final BORA action to adopt the proposed amendments was eventually scheduled for March 1, 2002. The March 1, 2002, BORA meeting was the only BORA meeting pertaining to the local technical amendments at issue here that was publicly noticed in the Sun Sentinel or any other local newspaper. BORA did not make any findings or determinations at the March 1, 2002, meeting. There was no discussion or determinations made at the March 1, 2002, hearing regarding whether there was a local need justifying the subject local technical amendments. There was no discussion at the March 1, 2002 hearing regarding the subject local technical amendments. At the March 1, 2002, meeting, BORA determined that what its Mechanical Committee presented was acceptable and BORA therefore voted to adopt it without any meaningful discussion. BORA did not make any other determinations with respect to the local technical amendments at that hearing. The members of the Florida Building Commission’s Mechanical and Technical Advisory Committee, which drafted and/or made recommendations with respect to the Florida Building Code, are presently considering the possibility of putting more stringent smoke control measures into the Florida Building Code for statewide application. Findings about the challenge process Broward County does not have, and has never had, an interlocal agreement establishing a countywide compliance review board for the purpose of reviewing any challenges to local technical amendments to the Florida Building Code that may be challenged by a substantially affected party. Neither Broward County, per se, nor any of the municipalities in Broward County, is authorized to exercise any authority over the building code in Broward County. In light of this situation in Broward County it appears to have been the concensus of the members of BORA that it was simply not necessary to structure any interlocal agreement nor create any county-wide compliance review board as otherwise generally provided for in the applicable statutory provisions. Thus, when Petitioner Fernandez-Fraga advised BORA that he wished to challenge the validity of two of the local technical amendments adopted by BORA, it was initially unclear where the challenge should be filed and where it should be heard. Following discussion with Commission staff, BORA advised that the challenge should be filed with BORA and would be heard by BORA. On or about March 20, 2003, Petitioners filed an appeal with BORA challenging the validity of the subject amendments. BORA scheduled a hearing on the challenge for April 10, 2003. BORA was apparently of the initial view that it was hearing the Petitioners' appeal in the capacity of a statutory "countywide compliance review board" because BORA originally noticed the April 10, 2003, hearing as being held by “the Board of Rules and Appeals sitting as a Countywide Compliance Review Board pursuant to Florida Statutes 553.73(4)(b) to hear challenges to Broward County Local Amendments to Sections 412 and M403.6.4 by Mr. Alfonso Fernandez-Fraga, P.A.” Notwithstanding the notice and agenda of the April 10, 2003, BORA meeting/hearing, during the course of the hearing BORA took the position that Broward County does not have a countywide compliance review board as described in Section 553.73(4)(b)8, Florida Statutes. Counsel for BORA stated, on the record, that BORA “has exclusive authority over the building code in Broward County.” Counsel then advised the Board: That statutory section which refers to an interlocal agreement applies to counties where the county and municipalities have the authority to amend the code. In Broward County, the municipalities and the county do not have that authority. Therefore, we don’t have a Compliance Review Board in Broward County because it’s just not authorized because we operate on a different procedure here. The Board of Rules and Appeals has the sole authority to amend the code, so we’re hearing this appeal tonight really as an appeal to reconsider whether the action of this board in March of 2002, when you passed these amendments, were done properly, and that’s the sole issue. The appeal was heard by BORA on April 10, 2003. BORA voted unanimously to deny the appeal. Mr. Fernandez-Fraga promptly received a letter from James DiPietro advising him that the appeal had been rejected. Thereafter the Petitioners timely filed their petition seeking relief from the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which concludes that, for the reasons set forth above, the local technical amendments adopted by BORA which are challenged in this case fail to comply with the requirements of Section 553.73(4)(b)1, Florida Statutes (2001), and are invalid local technical amendments, and further concluding that Broward County is not a necessary or appropriate party to this proceeding. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2003.
Findings Of Fact At all times relevant hereto, Respondent, Benjamin J. Eigner, held certified general contractor's license number CG C001534 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board. In 1980, Respondent was employed by the City of Tamarac as its chief building official. In that position his major function was to administrate and supervise employees who enforced the South Florida Building Code and the Code of Ordinances of the City of Tamarac. (Respondent's Exhibit 2). His duties included, inter alia, the review of qualifications and issuance of certificates of competency to contractors who wished to work within the City. On or about February 7, 1980, the Broward County Grand Jury issued a true bill or indictment against Respondent charging him with having solicited a bribe in his capacity as chief building official for the City of Tamarac. On or about July 3, 1980, Respondent entered a plea of nolo contendere in Broward County Circuit Court to the charge of bribery. Adjudication of guilt and imposition of sentence was withheld, and Respondent was placed on probation for a period of five years. As a special condition, Respondent was also required to spend one year in the Broward County Jail. (Respondent's Exhibit 1). Because of health problems, Respondent was medically discharged from serving the remainder of his one year incarceration on January 26, 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in the Administrative Complaint and that his certified general contractor's license be suspended for a period of nine months from the date of the final order entered herein after which time it shall be automatically reinstated. DONE and ENTERED this 22nd day of October, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 October, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myron B. Berman, Esquire P. O. Box 1113 North Miami Beach, Florida 33160 Mr. Benjamin J. Eigner 7850 Beechfern Circle Tamarac, Florida 33321
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed as a contractor by the Florida Construction Industry Licensing Board. His license for the 1979-1981 license period had not been renewed at the time that the hearing was conducted, and he was therefore delinquent. [This finding is determined from Petitioner's Exhibit 1.] During June, 1977, the Respondent entered Into a contract with Emily D. Wohanka and Ruby Sue Dennard. Ms. Wohanka and Ms. Dennard, who are sisters, agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a single-family dwelling on the lot. The parties agreed to an addendum to the contract during July or August, 1977. The addendum included some specifics with respect to construction and provided: Home will be complete and ready for occupancy within a reasonable period of time--normally three to five months. [This finding is determined from Petitioner's Exhibits 8 and 9, and the testimony of Wohanka and Jordan.) The lot which Ms. Wohanka and Ms. Dennard purchased was not cleared until December, 1977. No progress on construction was made during January or February, 1980. The Respondent obtained a building permit from the City of Satellite Beach, Florida, on February 20, 1978. Construction work commenced in either March or April, 1978. By June, 1978, Ms. Wohanka became concerned that work was commencing too slowly. She told the Respondent that she needed to move in by the end of July. Respondent told her that it was probable that construction would not be completed until mid-August. By September, the project was still not completed. Ms. Wohanka tried to reach Respondent by telephone, but he would not return her calls. She tried to locate him at home, but no one would answer the door. She complained to the building official in the City of Satellite Beach, but the building official had similar problems reaching the Respondent. Ms. Wohanka also complained to N. M. Jordan, the real estate agent who had negotiated the contract. Ms. Jordan was able to locate the Respondent, and the Respondent told Ms. Jordan that he could not complete the project because he was losing money. In late September or early October, Ms. Wohanka and her sister located the Respondent at his home. The Respondent was just walking out of the front door when they arrived. The Respondent told them that he could not discuss the matter, that he had turned it over to Ms. Jordan, and that he was not a part of it anymore. [This finding is determined from Petitioner's Exhibits 2 and 3; and from the testimony of Wobanka, Hijort, and Jordan.] When Ms. Wohanka contacted the Respondent in late September or early October, no work had been done on the project for at least a month, and the house was not completed. Light fixtures, appliances, and air conditioning had not been installed. Cabinets and other fixtures were stored in a bathroom. Inside doors had not been installed. Flooring was not completed. No sidewalks or concrete driveway had been constructed. There had been no landscaping or sodding, and the sprinkler system had not been installed. The plumbing was not operational. Ms. Wohanka contracted with a new builder to complete the project. She was able to move into the residence on December 28, 1978, but work was not finally completed until late January, 1979. Additional expenses beyond those agreed to by the Respondent were incurred by Ms. Wohanka. The Respondent had drawn on a construction loan; but, there is no evidence in the record that the Respondent used these funds for any purposes other than the construction of the dwelling. [This finding is determined from the testimony of Wohanka.] During July, 1977, the Respondent entered into a contract with James and Eleanor A. Lawrence. The Lawrences agreed to purchase a lot in Satellite Beach, Florida, and the Respondent agreed to construct a duplex dwelling on the lot. The Respondent obtained a building permit from the City of Satellite Beach on February 22, 1978. Unknown problems developed, and the project was not being completed. The Satellite Beach building official had difficulty locating the Respondent, but he was ultimately assured by the Respondent that the project would be completed. The Respondent told the realtor who negotiated the contract, Ms. Jordan, that he could not complete the 3 reject because he was losing money. The Lawrences did not testify at the hearing, and specifics regarding their relationship with the Respondent are not known. It is not known whether the Respondent abandoned the project uncompleted without notifying the Lawrences, or whether some agreement was made between them regarding completion of the project. There is no evidenced that the Respondent diverted any funds from the project. [This finding is determined from the testimony of Hjort and Jordan.] No building codes from the City of Satellite Beach were received into evidence. There is no evidence in the record from which it could be concluded that the Respondent violated any provisions of the building codes in either the Wohanka or Lawrence transactions.
Findings Of Fact Harry L. Wilson is the holder of a registered roofing contractor's license from the Florida Construction Industry Licensing Board. The license, Number RC 0041328, was first issued in March of 1982. The license was issued in the name of Harry L. Wilson Roofing, 1943 Hardy Street, Jacksonville, Florida, with the Respondent as qualifier. The Respondent has been the qualifier of Harry L. Wilson Roofing at all times relevant to this proceeding. On December 6, 1984, the Respondent and Robbie L. Hicks, entered into a written contract (Petitioner'S Exhibit 2). Pursuant to this written contract (hereinafter referred to as the "Contract"), the Respondent agreed to perform the repair work specified in the Contract in a "professional manner" and Ms. Hicks agreed to pay the Respondent $2,395.00. The property to be repaired is rental property owned by Ms. Hicks. The property is located at 1508 Eaverson Street, Jacksonville, Florida. The Respondent commenced work sometime during the early part of 1983. Shortly after commencing work, however, the Respondent and Ms. Hicks began having disagreements as to the work to be performed and the quality of the Respondent's work. These disagreements continued after the Respondent completed the work in November of 1983. Ms. Hicks testified that the work that the Respondent completed was done in an unprofessional manner and that the Respondent had not completed all of the work that he had agreed to perform. In particular, Ms. Hicks testified that the Respondent had failed to paint the interior of the house beige as required by the Contract, had failed to remove saw dust and other debris from the house following completion of the work, had failed to finish cabinets installed in the house, had failed to repair screens and generally had not performed in the manner he had agreed to perform. Ms. Hicks paid the Respondent all but $410.00 of the contract price. The Respondent testified that all off the work called for pursuant to the Contract had been performed. According to the Respondent, he had performed some work not required by the Contract and had not performed other work requested by Ms. Hicks because the work was beyond the scope of the Contract. The Respondent also stated that the work which Ms. Hicks expected would have cost considerably more than the price agreed upon in the Contract. The Respondent did not perform all of the work specified in the Contract in a "professional manner" as required by the Contract. Based upon the testimony of Mr. Claude Bagwell, Deputy Chief, Building and Zoning, Inspection Division of the City of Jacksonville, it is clear that no permit was issued by the City of Jacksonville to perform the work required by the Contract. The only permits issued with regard to Ms. Hicks' rental property was a permit issued in 1961 and the original building permit issued in 1949. Additionally, due to the fact that no Florida registered roofing contractor's license in the name of "Harry L. Wilson Roofing" had been filed with the City of Jacksonville, no permit could be issued to Harry L. Wilson Roofing with regard to the Contract. The Respondent admitted that he had not obtained a permit to perform the work required by the Contract. The Respondent indicated that he had not obtained a permit because he was not aware that one was required in order to perform the work. He did indicate that he had obtained permits to perform other jobs. The Respondent could not, however, have obtained permits for other jobs because no license issued in the name of Harry L. Wilson Roofing had been filed with the City of Jacksonville. The Respondent did take the examination required in order to obtain a registered roofing contractor's license. The Petitioner suggested in its Proposed Findings that the "permit requirement was explained" when the Respondent took the exam. No evidence to support such a finding was presented at the hearing. The Respondent in entering into the Contract clearly used the name "Wilson Recycling". Nowhere on the Contract is the name "Harry L. Wilson Roofing" used. The Respondent ultimately admitted that no Florida license authorizing the use of the name "Wilson Recycling" had been obtained by him. The Respondent, however, when initially asked whether a Florida license in the name of "Wilson Recycling" had been obtained indicated that such a license had been issued. On further examination, however, the Respondent testified that an occupational license in the name of "Wilson Recycling' had been obtained by him and not a Florida license. The work to be performed pursuant to the Contract was beyond the scope off the Respondent's license. As pointed out by Mr. Bagwell the work to be performed pursuant to the Contract would require licensure as a registered residential contractor or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That count I of the Administrative Complaint filed against the Respondent be dismissed. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129 (1)(g), Florida Statutes (1983), by contracting in a name other than the name as set forth on the Respondent's license. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), by failing in a material respect to comply with the provisions of Section 489.119(2) and(3), Florida Statutes (1983), in that the Respondent failed to qualify the business name "Wilson Recycling" with the Construction Industry Licensing Board. It is further RECOMMENDED: That Respondent be found guilty of violating Section 489.129(1)(j), Florida Statutes (1983), when he failed in a material respect to comply with the provisions of Section 489.117(2), Florida Statutes (1983), by contracting to perform and actually performing work beyond the scope of his Florida contracting license. It is further RECOMMENDED: That Petitioner suspend Respondent's roofing contractor's license for a period of three (3) months. DONE and ENTERED this17th day of December, 1984, in Tallahassee, Florida. LARRY J. SARTIN 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 17th day of December, 1984. COPIES FURNISHED: H. Reynolds Sampson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harry L. Wilson 1943 Hardee Street Jacksonville, Florida 32209 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
