Findings Of Fact Respondent, Eric Neale Anderson, has been a registered building contractor in Florida, at all times relevant to this proceeding with license number RB 0016806. In December, 1983 Respondent entered into a contract with Mrs. Linda Fatzinger, a homeowner in Columbia County, for replacement of a roof. The contract price for the reroofing was $2820. After Respondent completed the reroofing, leaks developed in the new roof which Respondent attempted to fix. Respondent did not correct the leaking roof. Mrs. Fatzinger contracted with another building contractor who did repair her roof and eliminate the leaks for an additional charge of approximately $900. Mrs. Fatzinger's roof was inspected by representatives of the Columbia County Building Department who found violations of portions of the Standard Building Code, as adopted by Columbia County Ordinance 78-1, in the work performed by Respondent. Specifically, Respondent installed shingles on a portion of Mrs. Fatzinger's roof that had a pitch of only 1/2 inch per foot instead of the two inches per foot which is required by Section R-803 of the Standard Building Code when shingles are used. This means that the rise of the roof was only 1/2 inch per running foot which is virtually a flat roof. The manufacturer's packaging of the shingles used by Respondent clearly states that the shingles are for application to roof decks having inclines of not less than two (2) inches per foot. Respondent did not obtain a building permit for this reroofing job, although one was required by Columbia County Ordinance 78-1, and he admits knowing that one was required. In the installation of shingles on Mrs. Fatzinger's roof, it has been deemed admitted that Respondent used an insufficient number of nails. Although four nails per shingle were recommended by the manufacturer and are required by Section R-803, Standard Building Code, for the shingles that were used, in some areas Respondent used only two or three staples per shingle, and did not use any nails. In making the above findings of fact, Petitioner's proposed findings of fact numbered one through four are approved and proposed finding number five is rejected as irrelevant, unnecessary and not based on competent substantial evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license be suspended for a period of three (3) months. DONE and ORDERED this 13th day of March, 1985 at Tallahassee, Florida. DONALD D. CONN, 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 13th day of March, 1985. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Eric N. Anderson Route 9, Post Office Box 322 Lake City, Florida 32085 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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.
The Issue Whether the Respondent's license as a professional engineer should be suspended, revoked or otherwise disciplined based upon the allegations set forth in the Third Amended Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of professional engineering in Florida. During the applicable time period set forth in the Third Amended Administrative Complaint, Respondent, Charles A. Wunder, Sr., was licensed as a professional engineer in Florida. He holds license number PE0016670, which has been in effect continuously since 1971. Respondent Wunder's last known address on file with the Board of Professional Engineers is 12620 Eagle Road, Cape Coral, Florida 33909. Plaza 1300 In 1981, the Respondent was commissioned by Messrs. Mike Zak and John Zipkovich to prepare plans for the construction of a commercial building to be developed in Cape Coral, Florida, known as Plaza 1300. At the time the commission took place, the owner-developers represented to Respondent that the construction company with whom he was involved would build the project, and he would supervise construction as a professional engineer. Based upon this representation, the Respondent designed and prepared plans in a way that was less time consuming than the creation of a plan to be used without his continuous supervision and direct involvement in construction. Instead of placing all of the specifications on the drawings, the Respondent chose to incorporate many of the details in the plan through the use of separate specification booklets which would be used by the fabricators and the Respondent during construction. The Respondent judged that this was a reasonable approach to the project design based upon the information he was given by the owner- developers during the design phase. The original plans for the building were completed in January of 1982. Four copies of the drawings, as completed by the Respondent for this project, were sealed with Respondent Wunder's professional seal as an engineer and were given to his clients during that same month and year. These drawings were specific enough to allow Messrs. Zak and Zipkovich to decide whether this was the building they wanted built at the project site. The Respondent did not give the owners the technical specifications that had been placed in the separate booklets because this aspect of the design was beyond what they were seeking to review at the time the project design was presented to them. After the Respondent discussed with the owner-developers what it would cost to build the project, they decided to find another builder who would construct the project for less money. The owner-developers used the sealed drawings when they went looking for a cheaper builder. They did not advise the Respondent of their decision not to retain the construction firm with whom he was affiliated, and they did not reveal they were going to use the drawings for the purpose of retaining a contractor. The owners gave the drawings to David J. Hayes, the general contractor and qualifier for Coral Bay Construction, Inc. This construction company was hired by the owners to build Plaza 1300 pursuant to the sealed drawings created by Respondent Wunder. Once the Respondent was advised that his construction company would not build the building, there must have been some discussions and agreements made with the owner-developers as to how Respondent Wunder would remain on the project for engineering purposes. It is obvious from the evidence adduced at hearing that the Respondent remained actively involved in the project in a number of ways after he completed his design and sealed the drawings. The Respondent's role and involvement in this project is confusing to others who are attempting to delineate what the Respondent's responsibilities were at different stages of the project's development. Sometimes the Respondent performed engineering functions for the owner-developers such as the approval of shop drawings. At other times, he assisted the contractor in working out code disputes with various city agencies and defended or revised his design. The Respondent also completed the structural inspection for the city on this building, and made any necessary design changes the city deemed were necessary to allow the issuance of a certificate of occupancy. By some means, all of the parties managed to delineate responsibilities throughout the project without any conflicts as to who was ultimately responsible for what in any given stage of development. The Respondent was only called upon when he was needed, and he assisted any of the parties when he was asked to do so. The signed and sealed drawings received by the contractor were submitted by him to the building department as the complete set of plans and specifications. Building department personnel relied on the drawings as the complete building plans. However, other city personnel who had questions concerning the specifications contacted the designer, Respondent Wunder. Any questions were resolved to the satisfaction of the city personnel prior to permit approval. For example, when the Fire Marshall had questions concerning whether construction would comply with the Standard Fire Prevention Code, National Fire Codes (NFPA) and the Life Safety Code 101, he discussed the matter with the Respondent. The Fire Marshall was given the Respondent's specification booklet that contained more information on the building materials than what was contained on the plans. Based upon the review of these specifications in addition to the drawings, the project was approved for permit by the Fire Marshall as long as the special conditions listed by him on a separate sheet were met. A permit was issued to construct the building according to the drawings and the additional specifications reviewed by city personnel on May 5, 1982. The contractor was never advised during his ongoing interactions with Respondent Wunder, the owner-developers or city personnel that separate sets of specifications existed which were part of the designer's plans for the project. The contractor relied on the construction drawings, the Respondent's approval of shop drawings prepared by manufacturer's before the structural items were fabricated for placement in the building, the outcome of his own discussions with city personnel about the application and interpretation of various codes as well as Respondent's discussions, and Respondent's structural inspections of the project. Based upon the knowledge and materials obtained by this contractor throughout the project, he was able to construct the building and obtain a certificate of occupancy for the owner-developers. The separate sets of specifications were not provided by the Respondent or the city through its records at hearing because these items were lost, destroyed or stolen from the city and the Respondent years prior to the filing of the charges by the Department. The deficiency in the records was not the fault of the city or the Respondent. Wherever deficiencies alleged by the Department as to design could be resolved in separate specifications, it has been determined that the Respondent did in fact supply this information in additional specification booklets as part of the plan for Plaza 1300. On Sheet S1 of the signed and sealed drawings, the Footing Schedule fails to call for anchor bolts at the base of steel columns in Footings (1,2,4) CB and 7 B-C. Ordinarily, this omission is contrary to the exercise of due care and fails to exhibit due regard for the principles of professional engineering because anchor bolts are required for the columns to function. It is careless to assume a contractor will use the right number and size anchor bolts. In this case, however, the Respondent created a separate specification, approved the shop drawings before the columns and the anchor bolts were delivered for use by the contractor, and inspected the installation of these materials. Any omission of the anchor bolts from the Footing Schedule in the drawings was resolved well before installation of the columns. The Footing Schedule on Sheet S1 calls for dowels at 10 feet on centers in footings supporting masonry walls, but this is inconsistent with the dowel requirements indicated on Sheet S2. This sheet shows the dowels are placed at varying spaces, e.g., some are spaced 46 feet apart, some are 6 feet, 8 feet, 10 feet and 40 feet on centers. Drawings should be consistent as to the information they convey to the contractor. This error could not have been corrected in a separate set of specifications. It resulted in a handwritten entry on the drawings prior to approval by the building department that gave a third alternative as to how the dowels should be placed. The lack of clarity as to dowel placement and the creation of three possible installations was a failure by a professional engineer to use due care in design while performing in an engineering capacity. As this disciplinary proceeding relates only to the design portion of this project, it is unknown if Respondent Wunder was actively involved in the revision accepted by the building department or whether he approved later shop drawings based upon the handwritten entry on the drawings submitted to the building department for approval. The Recommended Bar Details on Sheet S1 of the drawings are ambiguous as they do not specify what portion of the required bottom bars may be stopped short of the supports. The details indicate that some bottom bars are cut off and do not extend into supports, but the number is not specified. An engineer's design must explain which bottom bars extend the full length of the span because the designer is the only one who knows this and he must tell the detailer what he wants. The details cannot be allocated to a fabricator for subsequent approval by the engineer because the bars not needed for moment must be developed in bond beyond the cut off point, according to code requirements. A fabricator would not have the expertise to read the moment diagram and design what the professional engineer's calculations require without specific instructions regarding the bottom bars. Separate specifications would not cure the problem with the ambiguities in the bottom bars because the ambiguities are in the pictures themselves. If the ambiguities could not be clarified in the pictures, they could not logically be clarified with the written word. On Sheet S1, the requirements for top steel reinforcing bars in continuous concrete beams are ambiguous in that the required number and extent of those bars over supports between adjacent beams has not been defined in the drawings. The top bars are detailed in each separate beam with no regard as to how many bars are required between adjacent beams. For example, beams B-1, B-2 and B-3 are adjacent to each other on the second floor, the third floor and the roof. The top reinforcing for beam B-2 does not agree with that of beams B-1 and B-3. If the engineer had a particular area of steel required for this condition, then he has confused the contractor with this detail in the drawings. In this example, the amount of reinforcing varies on the roof beams by 33 percent. The amount of reinforcement should be the same for each bar. The reason this ambiguity could not be resolved in specifications or shop drawings is that the ambiguity is inherent in the design, as represented in its pictorial form. The alleged ambiguities as to Sheet S2 regarding anchor bolts and base plates were resolved in Respondent's favor in a separate specification booklet, and the shop drawings reviewed and accepted by Respondent. His details regarding the stairs were contained in the architectural portion of the drawings in the plans as opposed to the structural drawings. Based upon his design, and his review and approval of the shop drawings presented at hearing, the alleged ambiguities did not exist. The CORRUFORM deck indicated on architectural Sheet A6 is structurally inadequate to safely support code specified loads at the indicated joist spacing. The manufacturer's recommendation, based on an allowable stress of 30,000 PSI on the span of 5 feet is 34 PSF, is a little over one half of the actual load on the deck. The actual load is almost twice what the manufacturer recommends. A separate set of specifications could not correct this deficiency because the properties specified indicate the deck is structurally inadequate to support the required loads set forth on Sheet S1 of the drawings. In Sheet S5 of the drawings, all steel joists specified, except for those marked 8H3, are structurally inadequate to safely support code specified loads, according to the engineering calculations presented at hearing. This deficiency is repeated in the shop drawings. This structural inadequacy fails to exhibit due regard for acceptable standards of engineering principles. The 12 WF27 steel beams shown on Sheet S5 lack the moment resisting capacity needed to safely support code specified loads on the roof. The moment resistance required for the roof beam is 81.89 foot kips. The allowable moment capacity for these beams is 68.4 foot kips. This is an inadequate carrying capacity which could not be cured with additional specifications because it is a design error. The roof was redesigned by the Respondent prior to the roof construction. The beam details provided in Sheet S6 are ambiguous in that they fail to define the number and extent of top reinforcing bars required over intermediate supports in continuous concrete members. It appears from the beam schedule that although B-1 joins to B-2 and B-2 joins to B-3, each beam calls for a different number and size of reinforced bars at the connections. This causes confusion as to whether there should be 3, 4 or 7 reinforcing bars intersecting with each other where the beams are supposed to join. Shop drawings and separate specifications would not cure this deficiency as the ambiguity is in the details of the design. In addition to the structural design deficiencies alleged by the Department, Count I of the Third Amended Administrative Complaint alleges that various provisions of the applicable building codes in effect in the City of Cape Coral at the time the plans were sealed were violated in the design created by the Respondent. The Cape Coral Enforcement Board has already determined that there were two rated separate stairways provided to exit the second and third floors of this building, and that the designed stairways met the applicable provisions of the Standard Building Code, as interpreted, applied, and enforced within the City of Cape Coral. The Board also determined that the travel distance to exits and the corridors met the fire, building, zoning, and related technical codes, as they were interpreted and enforced in this municipality. The fire ratings for the elevator glass were in a separate specification book that Respondent Wunder submitted to the Fire Marshall prior to the Fire Marshall's determination that the sealed plans would be approved if the special conditions listed by the Fire Marshall on the drawings were met. These special conditions are missing and cannot be located. It is unknown if these special conditions related to the elevator glass or if the missing specifications were sufficient. The Respondent is found to have complied with the city's code requirements as to the elevator glass in the missing specification. The Cape Coral Enforcement Board found the doors and walls of the exit pathway to be fire rated and in compliance with all fire, building, and related technical codes as interpreted and in force within this municipality. The building materials used were in a separate specification booklet and were used to purchase the materials prior to installation by the contractor. The stairs designed by Respondent Wunder for this building decrease in width in the direction of exit travel. Both the Standard Building Code and the Life Safety Code in effect at the time of the design prohibit a decrease in the width of stairs in the direction of exit travel. The stair landings were found to be in compliance by the Cape Coral Enforcement Board as the applicable codes were interpreted and enforced within the municipality. Winding stairs, although prohibited as an exit stairway by the Standard Building Code, were designed by Respondent Wunder for use as an exit stairway in this commercial building. The riser and tread design completed by Respondent Wunder did not comply with the Life Safety code adopted by the City of Cape Coral. The design error may have been one of the special conditions placed upon the design by the Fire Marshall prior to his approval of the plans for permit. Uniform risers were placed in the building when it was constructed. In the Third Amended Administrative Complaint, the Department alleged that wood trim in exit stairways is prohibited. The Respondent stated in his answer that he was without knowledge of this prohibition. Because the Standard Building Code does allow wood trim if that wood trim meets certain flame spread characteristics and complies with the interior finish requirements, this allegation in the charging document did not sufficiently alert the Respondent as to what he was required to defend against concerning the wood trim. In addition, the Respondent is found to have satisfied code requirements for any wood trim in a separate specification booklet. A manual fire alarm system was not provided by Respondent Wunder as part of his original design. A manual alarm system was made part of the revised drawings on October 31, 1982, which was well after the permit was issued by the municipality. It is unknown if the omission of the manual fire alarm system in the design drawings was an omission, a matter of code interpretation, or whether the system was originally in the separate specification booklet reviewed by the Fire Marshall prior to his approval of the construction plans. This alleged deficiency is resolved in the Respondent's favor upon the determination that the system was in the separate specifications taken from the fire department. The Department's allegations regarding a standpipe system were removed from consideration prior to the taking of evidence in the formal hearing. The Cape Coral Enforcement Board determined that the vertical openings in the floor and roof of this building and the structural system are adequately fire protected under the city's interpretation of fire, building, and other technical codes in force in the city. The handicap accessibility requirements were not met in the drawings completed by Respondent Wunder. During the design phase of the project, the Accessibility by Handicapped Persons Act was in effect in Florida. Even if the restrooms and water fountains in the facility meet the minimum requirements set forth in Section 553.48(2)(h), Florida Statutes, as a result of the separate specifications, the parking space configurations and building access do not meet all of the applicable minimum code requirements. Schooner Cove In 1984, Respondent Wunder had an ongoing business relationship with the architectural firm of Stout & Gerald in Cape Coral, Florida. The architectural firm would hire Respondent Wunder to review the site drainage on the firm's project designs for buildings located on land within the City of Cape Coral. The following procedure was used by the architectural firm when it retained the Respondent in a couple of hundred projects: One of the architects would telephone the Respondent and ask him for a price on a particular number of units and would advise Respondent of the number of lots involved. The Respondent would be told whether the lots were inland or on a canal. Upon receiving this information, the Respondent would give the firm a price quote. When the project progressed to the point where a drainage review was needed, the drawings would be sent to the Respondent. He would either review, review and do some work on them, or say the drainage was all right. The architects would rely upon this review and go forward with finishing the design from that stage to its completion. When the customer needed signed sealed drawings for a building permit, the architect assigned to a particular project would place his seal on the project for the other work. The Respondent would place his seal on the plans as to the site drainage. On October 22, 1984, Respondent Wunder signed and sealed the site plan for a twelve unit condominium project known as Schooner Cove in Cape Coral, Florida. His title block on the site plan indicated "DRAINAGE ONLY" beneath the name "C.A. Wunder Engineering, Inc." The Respondent did not require a survey or a soil test of the site prior to his drainage review of the site plans because of his working professional knowledge of the soil conditions and the undeveloped lots within the City of Cape Coral at the time the site plans were given to him for review. This judgment call was reasonable based upon the architect's site plan and his failure to call anything unusual to Respondent's attention in the preliminary drainage design prepared by the architect. The Respondent did view the site before sealing the drainage design. A drainage design is comprised of calculations, grading and retention. The drainage design for Schooner Cove relied upon the percolation method to dispose of excess water from ten year critical storm events because there is no overflow/outfall capability from the retention areas that collected the excess water. Calculations are part of a drainage design. They should be performed with relation to a site and the drainage layout shown on the site plans. In determining the appropriate calculations, the engineer who places his seal on a site plan as to drainage must establish grades, overflow and how the drainage will be handled on the project. Both pre-construction and post-development conditions at the site must be reviewed. The drainage design at the Schooner Cove project that received the Respondent's engineering seal was not adequate to provide for reasonably anticipated storm water runoff at the site, post-construction, in a ten year critical storm event. The flooding of the retention ponds in such a storm event should have been apparent to a professional engineer who reviewed the plans with due care and due regard for the principles of professional engineering. Mitigating Circumstances The Department did not present any evidence of a previous disciplinary history in this or any other jurisdiction wherein the Respondent has practiced engineering. Many of the deficiencies alleged in the drawings for Plaza 1300 which were created in 1982, have since been reformed by the Respondent within his engineering firm. He no longer prepares separate specification booklets for projects of this size, and he prepares more detailed drawings that do not rely upon his personal supervision and direction after the design phase of the project. These steps were taken by Respondent even before the violations were charged against him in these proceedings. The way in which the drawings were prepared in Plaza 1300 was an unusual practice for Respondent, and was done in reliance upon the owner- developers' representation that Respondent would be responsible for the supervision of the construction of the building as a professional engineer. Some of the deficiencies in the Plaza 1300 project proved by the Department were minor, and were corrected as the project was built. The drainage design deficiencies in the Schooner Cove project can be corrected with a redesign of the drainage system at the site. Aggravating Circumstances Some of the structural design deficiencies in the Plaza 1300 project drawings reveal that the building's deck, columns and beams may not safely support code specified loads if they were built according to the design in the drawings. The owners of the condominiums in the Schooner Cove project must have the drainage redesigned to alleviate the flooding problems at the site. The fact that the complaint alleges multiple counts of the same provision of Chapter 471 cannot be used for enhancement in this case because that provision of the rules regarding disciplinary guidelines was not in effect when either of the violations occurred. The Department did not prove that enhancement of penalties based upon multiple violations was a policy of the Board of Professional Engineers during the time the violations occurred.
Recommendation In determining what penalty should be recommended for Respondent Wunder, the Hearing Officer considered the severity of the offenses, as well as the degree of harm to the consumers and the public. Based upon the foregoing, including all of the information made available to the Hearing Officer regarding aggravating and mitigating circumstances, it is recommended: The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count I , Paragraph Nine of the Third Amended Administrative Complaint. The Respondent Wunder be found guilty of having violated Section 471.033(1)(g), Florida Statutes, as alleged in Count II, Paragraph 15 of the Third Amended Administrative Complaint. Respondent be fined $1,000.00 for each violation for a total of $2,000.00, and receive a letter of reprimand from the Board. The Respondent's license should also be placed on probationary status for a period of three years. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of May, 1991. VERONICA E. DONNELLY 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 29th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5149 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Rejected, plans completed in 1981. Contrary to date on the drawings. See HO #4. Rejected, these were complete drawings. See HO #3. The rest of paragraph 4 is accepted. See HO #4. Accepted. Accepted. See HO #6 and #9. Accepted. See HO #9. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #24. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3, #4, #7 and #8. Rejected. Contrary to fact. See HO #3. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See Chapter 166, Florida Statutes, Section 6, Art. VIII, Florida Constitution. Accepted. Rejected. Contrary to fact. See HO #9. Accepted. Accepted. Rejected. Speculative Accepted. Accepted. See HO #14 and #15. Accepted. Rejected. See HO #3. Rejected. Overbroad. Addressed individually in findings. Accepted. See HO #13. Accepted. See HO #13. Rejected. Contrary to fact. See HO #13. Accepted. See HO #14. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. See HO #17. Accepted. See HO #18. Accepted. Accepted. Accepted. See HO #19. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Accepted. Accepted. Rejected. Contrary to fact. See HO #12 and #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #20. Rejected. Contrary to fact. See HO #12. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Contrary to fact. See HO #3. Rejected. Irrelevant. Accepted. Reject first two sentences. Relates to construction. The rest is accepted. See HO #21. Accepted. See HO #12. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. See HO #23. Accepted. Accepted. Rejected. Not an allegation in the complaint. Rejected. Not an allegation in the complaint. Rejected. Contrary to fact. See HO #3, #7 and #10. Accepted. Rejected. Conclusionary. See HO #3. Rejected. Irrelevant to charges. Accepted. Accepted. See HO #11. Rejected. Contrary to facts of this case. See HO #3, #7 and #10. Rejected. Contrary to this particular situation when drawing sealed. See HO #3. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #21. Accepted. See HO #22. Accepted. Accepted. See HO #22. Accepted. See HO #23. Accepted. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #25. Accepted. See HO #25. Rejected. Irrelevant. See HO #3. Accepted. 121. Accepted. See HO #25. 122. Rejected. Contrary to fact. 123. Accepted. See HO #15, #17, #18, #21, #22, #23 and #25. 124. Accepted. See response to paragraph 123. 125. Accepted. See response to paragraph 123. 126. Accepted. 127. Accepted. 128. Accepted. See HO #10. 129. Accepted. 130. Rejected. Contrary to fact. See HO #27. 131. Accepted. 132. Rejected. Contrary to fact. See HO #27. 133. Accepted. 134. Accepted. 135. Accepted. 136. Accepted. 137. Rejected. Contrary to fact. See HO #27. 138. Accepted. 139. Rejected. Contrary to fact. See HO #27. 140. Rejected. Contrary to fact. See HO #27. 141. Rejected. Contrary to fact. See HO #27. 142. Accepted. 143. Accepted. 144. Rejected. Contrary to fact. See HO #27. 145. Rejected. Contrary to fact. See HO #27. 146. Accepted. 147. Accepted. 148. Rejected. Contrary to fact. See HO #29. 149. Rejected. Contrary to fact. See HO #29. 150. Rejected. Contrary to fact. See HO #29. 151. Rejected. Contrary to fact. See HO #29. 152. Rejected. Contrary to fact. See HO #29. 152(a). Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. Rejected. Contrary to fact. See HO #28. 154(b). Accepted. 155. Rejected. Contrary to fact. See HO #29. 156. Accepted. See HO #30. 157. Accepted. See HO #30. 158. Accepted. 159. Accepted. 160. Accepted. 161. Accepted. See HO #30. 162. Accepted. 163. Rejected. Contrary to fact. See HO #31. 164. Rejected. Contrary to fact. See HO #31. 165. Accepted. 166. Accepted. See HO #32. 167. Accepted. 168. Rejected. Contrary to fact. See HO #31. 169. Accepted. 170. Accepted. 171. Accepted, but See HO #33. 172. Accepted. 173. Accepted. 174. Accepted. See HO #33. 175. Accepted. Accepted. Accepted, but see HO #34. Accepted. See HO #35. Accepted. Accepted. See HO #35. Accepted. Rejected. Not proved by clear and convincing evidence. See HO #36. Rejected. Not established fact. See HO #36. 184. Rejected. Contrary to fact. See HO #38. 185. Rejected. Contrary to fact. See HO #38. 186. Rejected. Contrary to fact. See HO #38. 187. Accepted. 188. Rejected. Irrelevant. 189. Rejected. Speculative. 190. Rejected. Contrary to fact. See HO #38. 191. Accepted. 192. Accepted. 193. Rejected. Contrary to fact. See HO #38. 194. Rejected. Contrary to fact. See HO #38. 195. Rejected. Contrary to fact. See HO #38. 196. Rejected. Contrary to fact. See HO #38. 197. Rejected. Contrary to fact. See HO #38. 198. Accepted. 199. Rejected. Contrary to fact. See HO #38. 200. Rejected. Contrary to fact. See HO #38. 201. Rejected. Contrary to fact. See HO #3. 202. Rejected. Contrary to fact. See HO #29. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #38. Rejected. Contrary to fact. See HO #38. Rejected. Not alleged in complaint. Rejected. Contrary to fact. See HO #29. 208. Rejected. See HO #3 and #12. 209. Rejected. See HO #3 and #12. 210. Accepted. 211. Accepted. 212. Rejected. Contrary to fact. See HO #38. 213. Rejected. Contrary to fact. See HO #38. 214. Accepted. See HO #39. 215. Rejected. Contrary to fact. See HO #10. 216. Accepted. 217. Accepted. See HO #9. 218. Accepted. See HO #9. 219. Accepted. 220. Accepted. 221. Rejected. Irrelevant. 222. Rejected. Irrelevant. 223. Rejected. Irrelevant. 224. Accepted. See HO #11 and #12. 225. Accepted. 226. Accepted. 227. Accepted. See HO #41. 228. Accepted. See HO #41. 229. Accepted. See HO #40. 230. Accepted. 231. Accepted. See HO #40. 232. Accepted. Accepted. See HO #41. Accepted. See HO #41. Accepted. Accepted. Accepted. See HO #43. Accepted to critical storm 10-year event standard. Rejected beyond 10-year critical year standard. Accepted. See HO #42. Accepted. See HO #44. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #45. Accepted. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Accepted. See HO #45. Rejected. Irrelevant. See HO #42. Accepted. Accepted. See HO #43. Accepted. See HO #43. Accepted. See HO #44 and #45. Accepted. See HO #45. Rejected. Contrary to fact. See HO #42. Accepted. Accepted. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #8 and #9. Accepted. See HO #9. Rejected. Contrary to fact. See HO #4. Accepted. See HO #9. Accepted. See HO #9. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #10. Accepted. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #9. Accepted. Rejected. Contrary to fact. Rejected. Argument as opposed to factual determination. Attorney comments are not evidence. Rejected. Improper summary. Rejected. Improper summary. Rejected. Irrelevant. Rejected. Contrary to fact. See HO #14 and #15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Attorney comments not evidence, therefore, that portion is rejected. Rejected. Improper summary. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Attorney comments, not evidence. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Accepted, in part. See HO #27 - #39. Those parts rejected are contrary to fact. Accepted. See HO #27 - #39. Accepted. See HO #27. Accepted. See HO #35. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #28. Rejected. Contrary to fact. Unknown, but resolved in Respondent's favor. See HO #36. Accepted. Accepted. Accepted. Accepted. See HO #13. Rejected. Contrary to fact. See HO #15. Accepted, as his testimony only. Rejected as finding of fact. Improper summary. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted, but not as to Respondent Wunder's design. Accepted. See HO #27 - #39. Accepted. See Preliminary Statement. Accepted. See HO #11 and #12. Accepted. Accepted. Rejected. Attorney's comments, not evidence. Rejected. Contrary to fact. See HO #43 - #45. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Rejected. Contrary to fact. See HO #40. Accepted. Accepted. Accepted. Accepted. See HO #40 and #43 - #45. Accepted. Accepted. Rejected. Contrary to fact. See HO #43 - #45. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #45. Accepted. Accepted. Rejected. Contrary to fact. 117. Rejected. Speculative. Improper summary. 118. Rejected. Irrelevant. 119. Rejected. Irrelevant. 120. Accepted. 221. Accepted. 222. Rejected. Irrelevant. 223. Rejected. Contrary to fact. See HO #45. 224. Accepted. 225. Accepted. 226. Accepted. 227. Accepted. 228. Accepted. 229. Accepted. Rejected. Weight and sufficiency determination. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #40. Accepted. COPIES FURNISHED: Wings S. Benton, Esquire Post Office Box 5676 Tallahassee, Florida 32314-5676 Diane E. McGill, Esquire TURK & SHIPP, P.A. 4223 Del Prado Boulevard Cape Coral, Florida 33904 Carrie Flynn, Acting Executive Director Florida Board of Professional Engineers Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0755 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and if so what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was a licensed standard building inspector, license number BN 0001750. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to the residence. She retained a contractor to perform the work and returned to her second home in Ohio during the time of the construction. When Ms. Edwards returned to Florida in December of 1996, she was dissatisfied with the quality of the construction work performed on her home. Mr. Joyce, Ms. Edwards' friend, stated that they had expressed a desire for, and had requested, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by an unlicensed building inspector, James L. Brown. This led the homeowner to suspect that the work performed did not meet inspection code standards. Building code inspections are to verify that the work performed by contractors meets certain minimum standards set forth in adopted building code regulations. By implication the highest quality of construction performance would generally exceed code requirements. One inspection item in particular concerned Ms. Edwards' friend, Mr. Joyce. This homeowner believed the new addition did not have a proper footer. All of the inspections listed on the permit card for this project occurred prior to December 17, 1996. The footer/slab inspection was performed on October 4, 1996. The Respondent asserts that at the time he performed the footer/slab inspection, the structures were in place to assure that the poured foundation would meet minimum code requirements. The Respondent does not dispute that Mr. Brown, an unlicensed inspector in training, initialed the permit card and transmitted by radio the inspection results. Mr. Brown was assigned to work with the Respondent during his training period prior to receiving licensure from the state. Mr. Brown ultimately received his provisional license on or about December 17, 1996. The Respondent asserts that a final inspection was not performed on Ms. Edwards' home. Consequently, no final verification was completed to assure the home addition was constructed in accordance with the plans and the forms on the ground for the footer/slab foundation. In this case there is no allegation that the construction plans for the addition for the Edwards' home failed to meet minimum code requirements. Presumably the footer/slab foundation as reflected on the plans would have specified at least a minimum compliance with code mandates. The footer/slab inspection was performed with the forms and reinforcements in place according to the approved plans. The Respondent maintains that the forms and reinforcements met minimum code requirements and that if such forms were altered after inspection he would not have known. Typically, once the footer/slab foundation forms and reinforcements are approved by an inspector the contractor calls for the delivery of concrete to be poured into the foundation forms. The date the concrete was poured for the subject footer/slab is unknown. Whether there was a delay between the footer/slab inspection date and the construction date is unknown. In any event when Ms. Edwards and Mr. Joyce returned from Ohio to view the addition the foundation did not appear adequate. Efforts were then pursued to attempt to ascertain whether the footer/slab did meet code. In this case the record is inconclusive as to whether the footer/slab foundation as constructed at Ms. Edwards' addition meets minimum code requirements. The pictures in evidence do not clearly establish the depth of the slab. Some of the photographs suggest that the minimum depth was achieved. A visual inspection performed at the site did not verify the depth nor compare the interior finished grade with the exterior measurements. The final grading of the exterior of the home around the addition was never completed. As a result the photographs may have a distorted view of the foundation and portions should have been back-filled along the edge of the slab. In any event, no definitive measurements have been offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Bobby T. Chambers 3520 Northeast Linda Drive Jensen Beach, Florida 34957 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this proceeding is whether disciplinary action should be taken against the Respondent’s registered general and residential contractor’s licenses for violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(j), 489.129(1)(n) and 489.129(1)(o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, the Respondent, Edwin A. Henry, had been licensed by the Department as a registered general contractor and as a registered residential contractor, having been issued license nos. RG 0045112 and RR 0047927, respectively. Moreover, the Respondent was the qualifying agent for Henry Company Homes, Inc. Henry Company Homes, Inc., is a production builder. A production builder builds homes from various standard or generic plans in the hopes of selling those homes at a later time. The homes are not customized in the sense that the plans for a home are drafted with specific home owners' input or for a specific home owner. The pace of production building is generally substantially faster and less expensive than custom home building. Economies in standard materials and use of labor are the reason for the lesser expense. To gain such economies, Henry Company Homes uses the critical path method of construction. The critical path method is a scheduling outline of the time and sequence of work to be done to build a house. The critical path method is an accepted and appropriate construction management technique and the Respondent’s critical path method and times are within the norms of construction techniques accepted in the industry. Respondent was the manager for Henry Company Homes. He did not personally build any of Henry Company’s houses and he did not personally build the houses at issue in this case. Moreover, Respondent was not on-site when these houses were built. Respondent’s role in the company was at least two levels removed from the actual on-site construction of any home. However, the Respondent’s organizational structure and span of management are within the norms accepted in the construction industry. On all homes built by Henry Company, the construction was supervised by a qualified construction supervisor. An assistant supervisor was available to a construction supervisor, should the assigned supervisor need help in overseeing the houses assigned to him. At least one supervisor, Charles Smith, who supervised the construction of the Hornsby house, voiced the standard complaint that he was being overloaded with houses located in different subdivisions and that it was difficult to maintain the production goals established by Henry Homes of completing a house in 10 to 12 weeks. Expert testimony indicated that such a goal was appropriate. Moreover, this complaint seems to be a standard complaint of construction supervisors everywhere and not particularly probative of any of the issues in this case relating to the Respondent. In fact, the Respondent’s supervisory responsibility for his on-site superintendents is within the norms accepted in the construction industry. The pace of construction of Henry Company Homes is the only fact submitted by the Department to demonstrate any knowledge or negligence on the part of the Respondent. No facts specific to the time period or pace of building of the houses involved in this complaint were submitted by the Department. Moreover, Mr. Smith also testified that the Hornsby home met the requirements of the Building Code and he was not aware of any defects in the home. Any other evidence on the issue of knowledge was unconvincing. Okaloosa County adopted the 1994 Southern Standard Building Code on November 15, 1994. Prior to that time the County, on September 21, 1993, had adopted by Ordinance the "current edition of the Southern Standard Building Code, including the appendix." In 1993, the current edition of the Southern Standard Building Code was the 1991 Standard Building Code. In all material respects, the provisions of each edition of the Standard Building Code relevant to this proceeding are the same. In essence, the Standard Building Code establishes minimum standards for the construction of residential homes. However, the Code provides for a high degree of flexibility in its interpretation and application by local building officials. One reason for the flexibility is that it is virtually impossible to construct a building which is totally compliant with the Building Code. Indeed there is a difference between non- compliance with the Building Code and a violation of the Building Code. Before a violation of the code occurs, notice of a deficiency and an opportunity to correct the deficiency must occur. Local building officials may adopt alternative methods of construction as long as those methods are not prohibited by the Building Code and meet the performance standards of the Building Code. No particular procedure is required for the determination of such alternate methods of construction and the building official is free to apply his expertise and knowledge of the local area to establish such alternate methods. The 1994 Standard Building Code provides, in pertinent part, as follows: PREFACE. The purpose of the Standard Building Code is to serve as a comprehensive regulatory document to guide decisions aimed at protecting the public’s life, health and welfare in the built environment. This protection is provided through the adoption and enforcement, by state and local governments, of the performance-based provisions contained herein. The use of performance-based requirements encourages the use of innovative building designs, materials and construction systems while at the same time recognizing the merits of the more traditional materials and systems. This concept promotes maximum flexibility in building design and construction as well as assuring a high degree of life safety. The Standard Building Code incorporates by reference, nationally recognized consensus standards for use in judging the performance of materials and systems. This provides for equal treatment of both innovative and traditional materials and systems, provides for the efficient introduction of new materials into the construction process and assures a high level of consumer protection. * * * 101.3 Code Remedial General. This code is hereby declared to be remedial and shall be construed to secure the beneficial interests and purposes thereof, which are public safety, health and general welfare through structural strength, stability, . . . and safety to life and property from fire and other hazards attributable to the built environment . . . . Quality control of materials and workmanship is not within the purview of this code except as it relates to the purposes stated herein. * * * 101.4 Applicability 101.4.9 Referenced Standards. Standards referenced in the technical codes shall be considered an integral part of the codes . . . . Permissive and advisory provisions in a standard shall not be construed as mandatory. * * * POWERS AND DUTIES OF THE BUILDING OFFICIAL General. The Building Official is hereby authorized and directed to enforce the provisions of this code. The building official is further authorized to render interpretations of this code, which are consistent with its spirit and purpose. (Emphasis supplied) * * * Requirements Not Covered By Code Any requirements necessary for the strength, stability . . . or for the public safety, health and general welfare, not specifically covered by this or other technical codes, shall be determined by the building official. Alternate Materials and Methods The provisions of the technical codes are not intended to prevent the use of material or method of construction not specifically prescribed by them, provided any such alternate has been reviewed by the building official. . . . . Examinations of Documents Plan Review. The building Official shall examine or cause to be examined each application for permit and the accompanying documents, consisting of drawings, specifications, computations and additional data and shall ascertain . . . whether the construction indicated and described is in accordance with the technical codes . . . . Affidavits. The building official may accept sworn affidavits from a registered architect or engineer stating the plans submitted conform to the technical codes. . . . 105. INSPECTIONS * * * * * * 105.4 Inspections Prior to Issuance of Certificate of Occupancy or Completion The Building official shall inspect . . . at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building . . . prior to the issuance of the Certificate of Occupancy or Completion. * * * 105.6 Required Inspections The building official upon notification from the permit holder or his agent shall make the following inspections . . . and shall either release that portion of the construction or shall notify the permit holder or his agent of any violations which must be corrected in order to comply with the technical codes: Building Foundation Inspection: To be made after trenches are excavated and forms erected. Frame Inspection: To be made after the roof, all framing, fireblocking and bracing is in place . . . Final Inspection: To be made after the building is completed and ready for occupancy. * * * 202. DEFINITIONS GRADE-a reference plane representing the average of finished ground level adjoining the building at all exterior walls. . . . . * * * 1804. FOOTINGS AND FOUNDATIONS 1804.1 General 1804.1.1 Foundations shall be built on undisturbed soil or properly compacted fill material. . . . * * * 1804.1.3 The bottom of foundations shall extend . . . no less than 12 inches (305 mm) below finish grade. (Emphasis supplied) * * * 1804.18 The area under footings, foundations, and concrete slabs on grade shall have all vegetation, stumps, roots, and foreign materials removed prior to their construction. . . . * * * 1804.4 Footing Design * * * 1804.4.2 Footings shall be proportioned to sustain the applied loads and induced reactions without exceeding the allowable stresses specified in this code. * * * 1906.4 Depositing 1906.4.5 After concreting has started, it shall be carried on as a continuous operation until placing a panel or section, . . . is completed except as permitted or prohibited by 1907.4. * * * 1907.4 Construction Joints * * * 1907.4.3 Construction joints shall be so made and located as not to impair the strength of the structure. Provision shall be made for transfer of shear and other forces through construction joints. * * * 2111. MASONRY CONSTRUCTION * * * 2111.1.3 Weepholes. Weepholes shall be provided in masonry veneer . . . at a maximum spacing of 4 ft (1219 mm) on center by omitting mortar in the head joints. Weepholes shall be located in the first course above the foundation wall or slab . . . . 2111.1.4 Installation of Wall Ties. The ends of wall ties shall be embedded in mortar joints. Wall tie ends shall engage outer face shells of hollow units by at least 1/2 inch (12.7 mm). . . . * * * 203.1.2 The detailed structural requirements contained in this chapter are based on sound engineering principles. . . . * * * 2301.2 Design 2301.2.1 The quality and design of wood members and their fastenings used for load supporting purposes shall conform to good engineering practices. 2301.2.1 All members shall be framed, anchored, tied and braced so as to develop the strength and rigidity necessary for the purposes for which they are used. 2301.2.1 Preparation, fabrication and installation of wood members and the glues, connectors, and mechanical devices for the fastening thereof shall conform to good engineering practices. * * * 2306. FASTENINGS 2306.1 Nailing and Stapling Requirements. The number and size of nails or staples connecting wood members shall not be less than those specified in Table 2306.1. . . . 2306.2 Other Fastenings. Where framing anchors, clips, staples, glues or other methods of fastening are used, they shall be labeled, listed and installed in accordance with their listing. * * * 2308. VERTICAL FRAMING 2308.1 Exterior Wall Framing 2308.1.1. Studs in one and two story buildings shall not be less than 2x4 with the wide face perpendicular to wall. . . . * * * 2308.1.1 Heights listed in 2308.1.1 are distances between points of horizontal lateral support placed perpendicular to the plane of the wall. Heights may be increased where justified by analysis. * * * 2308.1.5 Studs shall be capped with double top plates installed to provide overlapping at corners and at intersections with bearing partitions. End joints in double top plates shall be offset at least 24 inches (610 mm). In lieu of double top plates, a continuous header may be used. . . . 2308.1.5 Studs shall have full bearing on a plate or sill of not less than 2 inch nominal thickness and having a width at least equal to the width of the studs. * * * 2308.5 Interior bearing Partitions 2308.5.1 The provisions of 2308.1.1, 2308.1.2, 2308.1.3 and 2308.1.4 shall apply to interior bearing partitions supporting more than a ceiling under an attic with no storage. * * * 2308.5 Interior Nonbearing Partitions 2308.5.1 Framing for nonbearing partitions shall be of adequate size and spacing to support the finish applied. . . . * * * 2309. ROOF AND CEILING FRAMING 2309.1 Ceiling Joists and Rafter Framing * * * 2309.1.3 Ceiling joists and rafters shall be nailed to each other where possible . . . . * * * 2309.1 Trussed Rafters * * * 2309.1.3 The bracing of metal plate connected wood trusses shall comply to their appropriate engineered design. In the absence of specific bracing requirements, trusses shall be braced in accordance with the Truss Plate Institute’s "Handling, Installing and Bracing Metal Plate Connected Wood Trusses, HIB-91." * * * 2309.1 Roof Sheathing 2309.1 All rafters and roof joists shall be covered with one of the following Materials: * * * 4. Particleboard applied in accordance with the provisions of Table 2309.3B and nailed in accordance with Table 2306.1. * * * Table 2306.1 provides that roof sheathing of the type used in the houses involved in this case be nailed 6 inches on center at the edges and 12 inches on center intermediate. The Administrative Complaint alleges the following Building Code violations as the sole basis for the proposed disciplinary action against the Respondent in relation to both the Hornsby and Anthony houses: Foundation does not extend at least 12 inches below finished grade; Foundation is deficient as to form; Stub trusses are not anchored to the interior weight bearing wall; Stub trusses are not adequately cross braced; Brick veneer is not adequately anchored to the interior sheathing or studs to safely resist wind loads; and As to the Hornsby house, the roof sheathing is not attached to resist wind load requirements in the code. The construction of the Hornsby residence was permitted by Okaloosa County, Florida, on June 2, 1994. At the time the Hornsby permit was issued, Okaloosa County was not reviewing building plans for compliance with wind load requirements of the Building Code or inspecting properties for compliance with wind load requirements of the Building Code. The construction of the Anthony residence was duly permitted by Okaloosa County, Florida, on June 6, 1996. At the time the permit was issued, Okaloosa County was reviewing building plans for compliance with wind load requirements of the Building Code. The plans for the Anthony residence passed that review by the Okaloosa County Building Department. The Hornsby and Anthony homes are wood-frame houses built on monolithic concrete slabs. They have a hip roof. The exterior walls are covered by brick veneer anchored with standard brick ties. Both houses have brick veneer which moves with the application of strong hand pressure to the top part of the veneer. The deflection on one wall of the Hornsby house is at least 1 inch. The deflection on the remainder of the Hornsby house and all of the Anthony house is slight and within general engineering perimeters. Both houses have been through at least two major hurricanes since they were built. Both hurricanes had winds in excess of any wind load requirements. Neither house sustained significant damage from either hurricane. There was no evidence submitted, through appropriate calculations, that the houses involved in this case did not meet the performance criteria of the Building Code. To the contrary, there is evidence that these houses do meet the performance requirements of the Building Code since they have survived at least two major hurricanes without sustaining the type damage these performance tests were designed to prevent. The Respondent requested and the Okaloosa County Building Department (Okaloosa County) conducted all required inspections of the Hornsby and Anthony residences. One deficiency, not at issue here, was noted by Okaloosa County during construction of the Hornsby house and was promptly repaired by the Respondent to the satisfaction of the local building official. No deficiencies were noted by Okaloosa County during any of the inspections of the Anthony house. A Certificate of Occupancy (Certificate) was issued by Okaloosa County for the Hornsby house on March 14, 1995. The Certificate certified to the Respondent that the Hornsby residence was constructed in accordance with the applicable Building Code. Hayward Hornsby purchased the house within several weeks after the Certificate was issued and after one walk-through of the house. However, shortly after moving in, Mr. Hornsby noticed that large portions of the ceiling drywall were sagging or wavy. The view of the property corroborated the condition of portions of the Hornsby ceiling, but, the ceiling is not unsightly; the waviness in the Hornsby ceiling can be traced to an unlevel foundation. However, the waviness does not appear to be the result of any code violation on the Respondent’s part, but is one of workmanship. After seeing the wavy ceiling, Mr. Hornsby has never been happy with his house. A Certificate on the Anthony house was issued by Okaloosa County on December 9, 1995. The Certificate certified to the Respondent that the Anthony residence was constructed in accordance with the applicable Building Code. Mr. Anthony, to this day, is happy with his home and has never complained to the Department about his home. It was Mr. Hornsby who directed the Department to Mr. Anthony’s home. As indicated, the applicable Building Code requires that the foundation extend at least 12 inches below finished grade. Section 1804.1.3, Standard Building Code, 1994. The foundation in the Hornsby and Anthony residences clearly met this Building Code requirement. Additionally, the view of each property demonstrated that the foundation met the Building Code requirement for depth. The Department’s expert testified that the correct measurement for determining the depth of the foundation below finished grade was from the bottom of the foundation to the bottom of the brick shelf. That is not the correct measurement for determining compliance with the Building Code. The correct measurement is from the bottom of the foundation to the top of the finished grade. The closest estimate of the original finished grade for both houses was the soil stain on the brick wall. Even after the Administrative Complaint was filed, the Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the depth of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the foundation be sufficient to carry the load of the structure. Section 1804.4.2, Standard Building Code, 1994. The Department’s experts have testified that they had not performed any tests or calculations to determine whether the Hornsby or Anthony foundations are sufficient to carry the load of the structure. Importantly, nowhere in the Building Code is it required that walls be plumb or that foundations be level or shaped a certain way. One reason for this omission is that the materials and environmental conditions involved in construction are flexible and unpredictable, making mathematical and geometric precision impossible. Therefore, the soundness of a wall or a foundation under the Building Code is determined by using the various formulas for loads, wind, etc. Misshaped or unlevel foundations, or unplumb walls are not, by themselves, violations of the Building Code. Such construction is involved more in the quality of workmanship than in any code violations. The view of the Hornsby and Anthony residences conducted by the Administrative Law Judge failed to disclose any facts which support the allegation in the Administrative Complaint as to the form of the foundation. Moreover, the Complaint alleges that Mr. Anthony had cracked bricks as the result of the insufficient foundation. No cracked bricks were observed during the view of the Anthony residence. The Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the form of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. On both the Hornsby and Anthony houses, the stub trusses were not anchored to the interior weight-bearing wall. Stub trusses are the blunt nosed trusses on a hip roof which intersect the main roof of a house and run under the main roof of a house forming a "T"-like structure. In this case, the blunt end of the stub trusses rested on an interior load-bearing wall. The other end of the stub trusses rested on an exterior load- bearing wall. The part of the trusses on the exterior load- bearing wall were properly anchored. When the Hornsby residence was permitted, Okaloosa County was not reviewing plans for compliance with the wind load requirements of the Building Code. Plans review did not begin in Okaloosa County until July 1, 1994. Such review did occur with the Anthony house. Indeed, at the time both houses were built, there was a great deal of confusion within the building community as well as Okaloosa County regarding how to comply with wind load requirements of the Building Code. When the Hornsby and Anthony houses were constructed, neither the builder nor Okaloosa County knew that the prescriptive method for wind load requirements (SSTD 10-93) required the stub trusses to be anchored to an interior weight-bearing wall because the intersecting main roof covers that part of the stub trusses. It was clear the end of the trusses resting on an exterior weight-bearing wall had to be anchored. The Respondent built both houses consistent with the interpretation and enforcement of the Building Code by the local building official and consistent with local building practices in the area. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence and confirmed that the stub trusses were not anchored properly as required by the wind load requirements of the local Building Code. In response to this finding (and consistent with established industry standards), the Respondent employed an engineer to design an appropriate anchoring mechanism for this condition. The engineer’s design was approved by Okaloosa County and properly installed by the Respondent as an alternate method of construction. Okaloosa County inspected the work and cleared the code deficiency. Based on the confusion by both contractors and local building officials regarding the wind load requirement of the Building Code at the time the Hornsby and Anthony residences were constructed, this technical Building Code deficiency was not a knowing violation by the Respondent. No evidence was presented by the Department that the Respondent had any personal knowledge of the existence of this condition prior to the filing of the Administrative Complaint. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the stub trusses be braced in accordance with the engineered truss drawings. At the time the Department made this allegation, its experts had not reviewed the engineered truss drawings. Based on observations at the viewing of the Hornsby residence, the bracing for the stub trusses in the Hornsby residence substantially met this Building Code requirement. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence. The Okaloosa County Building Official did not find any Building Code violations with respect to the cross-bracing of the trusses. He did note the bracing was light. Based on the view conducted by the Administrative Law Judge, the stub trusses did not have the required amount of bracing. The bracing which was in place was spaced too far apart by about 1 foot on the middle set of stub trusses. This spacing does not appear to be material and no calculations were completed to demonstrate that the bracing in place was inadequate or negligent construction. Moreover, no knowledge or negligence is attributable to the Respondent since he was unaware of the deficiency and the local building inspector passed the bracing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. When the brick veneer was removed on the end of the Hornsby residence, it was shown that all of the brick ties were installed into the interior sheathing or wall studs. Okaloosa County requires that the framers, not the brick masons, install the brick ties. The brick ties that were imbedded in the brick were properly installed, consistent with local construction practices in Okaloosa County. The failure of the brick masons to use the top row of brick ties is not a condition that the contractor knew about or reasonably could have known about, even with adequate supervision. The Hornsby and Anthony residences passed a brick tie inspection, the inspection which tells the contractor that the brick ties are properly installed and spaced. The failure to use the brick ties on the top row did not cause the excessive movement in the brick veneer of the Hornsby house. Due to the method of installation of Okaloosa County, it was impossible to use those ties on the soldier or top course of the brick wall. Indeed, the Department has failed to prove that the excess movement in the brick veneer of the Hornsby house even existed at the time the Certificate was issued on the Hornsby residence. The movement in the brick was caused by a break in the bond between the brick and the mortar in the tenth course from the top of the wall. It is impossible to know when or why that break occurred. However, Mr. Hornsby’s first report of brick movement to Okaloosa County was after the second hurricane hit Okaloosa County in 1995. The break in the bond could have been caused by the hurricanes or some other external force unrelated to the installation of the brick at the time the house was built. Although the Department’s expert testified that the brick veneer at the Anthony residence had the same movement as the brick in the Hornsby residence that conclusion had no factual foundation. The inspection by the Okaloosa County Building Inspector failed to disclose any excess movement in the brick veneer. A licensed engineer and contractor observed only the slightest movement in the veneer, all of which was within normal tolerances. Most importantly, no excess movement of the veneer was observed during the view. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. The Building Code requires roof sheathing to be nailed 6 inches on center at the edges and 12 inches on center intermediate. Table 1206.1, Standard Building Code, 1994. The Department’s experts did not agree as to the number and severity of locations where nails in the roof sheathing missed the roof trusses. Based on the view of the Hornsby residence, there were some missed nails in the roof sheathing which allowed one section of sheathing to be lifted with hand pressure. The extent of the missed nails was very small compared to the number of nails contained in a roof on an average size house. All of the testimony supports the conclusion that the frequency and severity of this condition was not material. The number of "missed" nails was not a material deficiency and has not affected the performance or safety of the roof system. The deficiency is easily correctable. The concept that a few missed nails are a code violation that would support discipline of a contractor is not consistent with industry practice. Moreover, the record is void of any evidence that the Respondent had knowledge of this condition or that this condition was the product of a lack of supervision by the Respondent or even negligence attributable to the Respondent. To the contrary, the Hornsby residence passed a framing inspection, which included an inspection of the nailing in the roof sheathing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. Moreover, after Mr. Hornsby complained about defects or problems in his home, he consistently denied access to the Respondent for the purpose of effecting repairs. In general Okaloosa County requires that a contractor be allowed an opportunity to fix a code deficiency before it considers a deficiency to be a violation of the Building Code. This interpretation of the Building Code by the agency responsible for its interpretation and enforcement is reasonable. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Hornsby residence, if any. Since the Respondent was not allowed such opportunity in relation to the Hornsby house, there is no code violation which the Respondent was aware of. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Anthony residence, if any, and was allowed to do so in at least one instance. Finally, on both the Anthony an Hornsby houses, the evidence failed to demonstrate that the Respondent’s supervisors were unqualified or failed to supervise the subcontractors underneath them or that the Respondent had specific personal knowledge of a supervisor’s failure to supervise. Likewise, the evidence did not demonstrate that the subcontractors were unqualified or that the Respondent had specific personal knowledge that a subcontractor was unqualified or performed in a negligent manner. Without such specific and personal knowledge on the part of the Respondent, none of the charges contained in the Administrative Complaint can be attributed to the Respondent. Therefore the Department has failed to establish that Respondent is guilty of violating Chapter 489, Florida Statutes. The construction of the residences at 102, 106, and 107 Louise Drive and 420 Jillian Drive were duly permitted by the City of Crestview, Florida. All of these houses were incomplete at the time of the inspection by the Department’s experts. The Department offered very little evidence in support of the allegations relating to these unfinished houses. On most of the houses the Respondent had not called for an inspection of the work the Department alleged was a violation. If the contractor has not called for an inspection of a particular phase of the work on unfinished houses, then the condition of that work by itself cannot support an alleged Building Code violation. In like regard, if the contractor calls for an inspection, and a deficiency is noted and the contractor corrects the deficiency to the satisfaction of the building official, then no code violation exists. All of the allegations regarding the incomplete houses fail for one of these two reasons. On all the unfinished houses the Department alleged that the foundation did not extend at least 12 inches below grade. Again proper measurement to determine the depth of a foundation is based on the finished grade. See Section 1804.1.3, Standard Building Code, 1994. At the time each of these homes was inspected by the Department and its experts, finished grade had not been established. Therefore, there is no factual basis for this allegation in the Administrative Complaint and the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise Drive the Department alleged that the brick ties were not properly spaced. At the time of the inspection by the Department and its experts, the Respondent had not called for a framing inspection. Nor was there any evidence that the construction supervisor of the home had accepted the brick tie placement. Accordingly, the spacing of the brick ties could not be the basis of an alleged violation. Indeed, The Department’s expert agreed that this was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 106 Louise Drive the Department alleged that the drywall was improperly nailed. At the time of the inspection by the Department and its experts, the drywall was being installed. No observations were made after the drywall installation was completed to determine the final nailing pattern. The Department’s expert agreed that the condition he observed (which was the basis for the allegation in the Administrative Complaint) was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Also at 106 Louise Drive the Department alleged that the joint offset spacing in the top plate is less than 24 inches apart. At the time of the inspection by the Department and its experts, the Respondent had not called for the framing inspection on this house. The evidence further shows that the issue of the joint offset that was observed during the framing inspection, was noted by the building inspector as an exception, was corrected by the Respondent to the satisfaction of the local building official and was passed by the local building official. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102, 106, and 107 Louise and 420 Jillian the Department alleged that the girder trusses were not anchored. The Department offered no evidence on this issue. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise the Department alleged that the exterior sheathing was not properly nailed. The Department offered no evidence regarding this condition at 102 Louise Drive. At the time of the inspection by the Department and its experts of 107 Louise Drive, the Respondent had not called for a framing inspection. The local building official conducted a framing inspection on both houses. Both houses passed the framing inspection. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Additionally, on all the unfinished houses, the Respondent requested and the City of Crestview conducted all required inspections of these houses. No deficiencies were noted by the City of Crestview Building Department during any of those inspections other than the joint offset at 106 Louise Drive. A Certificate was issued by the City of Crestview on each of these houses. The Certificate certified to the Respondent that these houses were constructed in accordance with the applicable Building Code. As with the Hornsby and Anthony house, even if code violations had been established, the evidence is insufficient to establish that the Respondent knowingly committed any code violations with respect to the properties remaining in these two Administrative Complaints. Likewise, the evidence is insufficient to independently establish that the Respondent committed negligence, incompetency, or misconduct in the practice of contracting. The evidence fails to establish that the Respondent deviated from the applicable standard of care. The evidence did not show that the Respondent relied on unqualified supervisors or subcontractors or that he specifically and personally knew of such. The Respondent is entitled to rely on such qualified personnel. Without such evidence the misconduct charged in the Administrative Complaint cannot be attributed to the Respondent. Moreover, the evidence independently establishes that the Respondent had adequate systems and safeguards in place for supervision of his personnel, and adequately supervised the work on the job sites in question through such qualified construction supervisors. Finally, prior to the commencement of the formal hearing in this matter, the local competency boards for the appropriate jurisdictions disposed of those matters involving the following properties in favor of the Respondent: the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki. The undisputed evidence, in the form of an Affidavit from the Respondent, establishes that the residence allegedly located at 1894 Alfred Boulevard in Navarre, Florida, did not exist; this fact was unopposed by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent not guilty of any of the counts in either of the Administrative Complaints. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of January, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 David L. McGee, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Charles T. Wiggins, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Neil H. Butler, Esquire Butler & Dudley 310 East College Avenue Tallahassee, Florida 32301 Gregory D. Smith, Esquire Gregory D. Smith, P.A. 201 South Baylen Street Suite A Pensacola, Florida 32501 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32311-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor holding license number CB CO24185. On or about March 14, 1983, Respondent, doing business as Duran Construction Co., contracted with Mr. and Mrs. Thomas Butler of San Mateo, Florida, to construct a room addition and freestanding carport at their residence for $6,825. Subsequently, Respondent constructed an aluminum "roof- over" by rate contract for an additional $2,000. Respondent completed the freestanding carport and aluminum roof-over projects without apparent difficulty. However, he began the room addition without obtaining the required building permit from Putnam County. 1/ He obtained an after-the-fact permit about April 21, 1983, but was issued a "correction notice" by the Putnam County Building and Zoning Department on April 22, 1983, ordering all work to cease until the cited deficiencies were corrected. 2/ The chief building inspector arranged to meet Respondent on April 214, 1983, at the construction site. The purpose of the meeting was to discuss the corrective measures required on the partially completed room addition. Respondent did not attend this meeting and did no further work on the project. His failure to attend the meeting or continue work was not explained to either the building officials or the property owner. At the time Respondent discontinued work, he had been paid $4,550 on a written contract which covered the finished carport as well as the incomplete room addition. He had also been paid $2,000 for the finished roof-over project which was the subject of an oral contract. Respondent would have been entitled to an additional $2,275 on the written contract had he completed the room addition. By letter of May 6, 1983, the Butlers' attorney advised Respondent that he would initiate legal action against him unless the project was completed by May 13, 1983. However, Mr. Butler had already applied to the Putnam County Building and Zoning Department for reissuance of the permit to himself in place of Respondent. The permit was reissued to Butler on May 6, 1983 and the project was completed without Respondent's further involvement.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(d), F.S., and suspending his contractors license for a period of four months. DONE and ENTERED this 16th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 323301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984. 1/ A building permit must be obtained prior to construction. Section 106.1(a), Putnam County Building Code (PCBC). The PCBC is the Southern Standard Building Code adopted by Putnam County Ordinance 83-2. 2/ See Section 103.2, PCBC. The cited deficiencies included insufficient girder support for floor joists and inadequate roof framing with respect to rafters and beam construction. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Dean Arturo Duran 11680 N.W. 15th Lane Ocala, Florida 32675 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
