The Issue The issues presented in this action are based upon an administrative complaint from the State of Florida, Department of Professional Regulation against Milton T. Warren. Through the administrative complaint, Respondent is charged with violation of Section 489.129(1)(d), Florida Statutes, in that he willfully or deliberately disregarded and violated applicable building codes in the course of his involvement with a project in Palatka, Florida known as the Ginn job. In particular, Respondent is accused of continuing to work on the project with disregard for a notice of correction left at the job site and that he covered unapproved work in that he removed a stop work order at the job site without prior authorization. The specific references to local building codes by citation shall be made in the conclusions of law.
Findings Of Fact Milton T. Warren is a registered general contractor licensed by the Florida Construction Industry Licensing Board, license number RG 0029984. Respondent made a contract with J. A. Ginn to construct an addition to the Ginn residence which is located at Herja Acre Lane in Palatka, Putnam County, Florida. To construct the project, Respondent obtained a building permit from the Putnam County Building-Zoning and Inspections Department. That permit was obtained on August 24, 1982. A request was made for an inspection related to framing involved in the Ginn project. That inspection was conducted by the Putnam County Building Department in the person of Richard F. Richter, Chief Building Inspector, Putnam County. The date of the inspection was September 21, 1982. At the time of the inspection, Richter felt the header over the exterior door in the utility room addition which was being attached to the sides of the residence was not sufficient. This door is depicted in a photograph, Petitioner's Exhibit 4 admitted into evidence. In addition, Richter did not feel that the extensions to the existing joists in the roof at the residence by nailing additional length to the joists at each individual member was in keeping with the requirements of the Southern Building Code. These joists constituted structural framing for the roof. At all times relevant, the Southern Building Code had application in keeping with a Putnam County Ordinance, No. 73-6. These joist extensions are depicted in Petitioner's Exhibit 5 admitted into evidence which is a photograph taken at the time of the inspection of September 21, 1982. Richter felt that any splicing that would be allowed must be done over a load-bearing wall and as depicted in Petitioner's Exhibit 5, the splicing was not done over a load-bearing wall. At the time this inspection occurred, the project had been dried in but the interior sheetrock had not been placed in the area of the joist extensions or on the walls of the utility area. Having discovered what he perceived to be deficiencies related to framing, Richter left a notice of correction attached to a tree which is shown in Petitioner's Exhibit 4 and is immediately adjacent to the outside door in the utility area. A copy of that notice of correction may be found as part of composite Exhibit 1 admitted into evidence as attachment 3 to that Exhibit. It stated that "corrections required before proceeding or covering this work: change header over door . . . see bldg. inspector regarding spliced ceiling rafters." The notice also indicated a phone number to call when corrections had been effected. The notice did not otherwise state how to solve the problem with the matters of joists. On the same date as the inspection was made, the Respondent received the correction notice from one of his workers on the Ginn job. In an effort to comply with the instructions set out on the correction notice, he tried to contact the Building Department to discuss the concerns expressed by the inspector. He was unsuccessful in this effort. At the time that Respondent was made aware of the correction notice, the work had not been covered up inside the building related to the placement of sheetrock on walls and ceiling. The work was covered in on the following day per the instruction of Respondent to his employee to place the sheetrock. His remarks to the employee at that time was that the ceiling joists were adequate. The sheetrock was placed prior to any conversation between Respondent and the building department of Putnam County reference concerns about the ceiling joists. On October 5, 1982, Robert H. Boone, Electrical Inspector for Putnam County, went to the Ginn property to ascertain the status of matters related to the correction notice, in view of the fact that Richter had not heard from Respondent about items set forth in the correction notice. The request that Boone check the job site was made by Richter. When Boone arrived at the job site, he discovered that the ceiling joists had been covered in with sheetrock. He then called and spoke with a Mr. Michaels, who was the Building Code Administrator in Putnam County at that time. In keeping with Michaels' instruction a stop work order was posted on the same tree as was discussed in the details related to the correction notice. That stop work order informed the contractor on the job not to proceed with any further work before contacting Putnam County building officials. It also contained an admonition not to remove the stop work order. At that time the work was approximately 98 percent complete. On October 5, 1982, Respondent became aware of the stop work order and took down that stop work sign from its placement on the tree. No effort at compliance with the stop work order was made, the job having been substantially completed. Respondent attempted to contact the building department regarding the stop work order, but was unsuccessful. Subsequent to October 5, 1982, Richter, by correspondence dated October 21, 1982, wrote to William J. Tangye, P.E., Executive Director of Southern Building Code Congress International, to obtain an opinion about the acceptability of splicing of joists over other than a load-bearing wall. That correspondence contained a sketch supplied by Respondent related to the joist circumstance. The query to the Southern Building Code official was one of whether splicing was in accordance with requirements of Southern Building Code and good construction practices, related to approval of the project by the building inspector. A copy of this letter may be found as Petitioner's Exhibit 6, admitted into evidence. The letter was answered by Tangye, and a copy of that correspondence may be found as Petitioner's Exhibit 7, admitted into evidence. Tangye did not feel that the construction was in compliance with the Southern Building Code requirements and recommended the submission of additional data to establish the ability of the roofs to provide necessary continuity. The project was later accepted by Putnam County based upon an engineering report vouching for the propriety of Respondent's choice to splice the joists other than over a load-bearing wall. At the time Respondent determined on September 21, 1982, to cover in the joist members, he felt that the joist was sufficiently constructed to comply with requirements for inspection. Ultimately, his work was accepted by the Putnam County Building Department. Respondent claims that on September 21, 1982, upon examining the correction notice, that the statement to see the building inspector about the spliced ceiling rafters was not a statement of disapproval. That perception on the part of Respondent is not accepted. It is found that the correction notice clearly contemplated that Respondent should contact the Putnam County Building Department before covering the joists by the placement of sheetrock, and Respondent willfully disregarded this indication that the spliced ceiling rafters had not been approved and proceeded to cover that work without the necessary approval from the Putnam County Building Department.
Recommendation Based upon a full consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a final order be entered which imposes an administrative find of one thousand dollars ($1,000). DONE AND ENTERED this 21st day of November 1983 at Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1983. COPIES FURNISHED: Douglas H. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Tim Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 1st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact From May 1, 1985, through June 30, 1987, Respondent, John Gonzalez, was a registered general contractor and qualifying agent for Le-Go Developers, Inc., license-number RG-A02757. On his application for qualification of Le-Go Developers, Inc., respondent was required to list his individual address and the address of the business entity. To this end, respondent provided an individual address of 8435 Crespi Boulevard, Miami Beach, Florida, and a business address of Le-Go Developers, Inc., of 9840 S.W. 81st Street, Miami, Florida. On March 25, 1986, Ms. Selma Roberts contracted, through respondent, with Le-Go Developers, Inc., for certain repairs to an apartment complex owned by her, and located at 8415 Crespi Boulevard, Miami Beach, Florida. At the time, respondent was a tenant of Ms. Roberts. Pursuant to the terms of the agreement, Le-Go Developers, Inc., was to repair an existing dock for $700 and paint the railings in the apartment complex for $400. Ms. Roberts paid Le-Go Developers, Inc., $1,100 in advance for the work. At no time did Ms. Roberts and respondent discuss the need for a building permit to undertake the agreed upon work, and no permit was secured for the project or posted on the job site. The building regulation pertinent to this case provide: PERMITS REQUIRED It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof. . . without first having filed application and obtained a permit therefor, from the Building official.... EXCEPTION: No permit shall be required, in this or any of the following sections, for general maintenance or repairs...the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building official. Permits, to be issued by the Building Official, shall be required for the following: (a) The erection or construction of any building or structure, the adding to, enlarging, repairing, improving, altering, covering, or extending of any building or structure. Respondent repaired the dock and painted the railings in the apartment house. The work was not, however, apparently to Ms. Roberts' satisfaction and she paid a third party $100 to correct the deficiencies she perceived. While the work may not have satisfied Ms. Roberts, there is no competent proof that respondent did not comply with the terms of the agreement, that the work was not performed in a workmanlike manner, or that the work did not conform to existing building codes. At some point during the spring of 1987, respondent moved from the apartment at 8415 Crespi Boulevard to a new residence, and permitted his license to lapse. Respondent did not notify petitioner of his new residence address until he applied to reinstate his license in April 1988, as discussed infra. The petitioner's records demonstrate that respondent's license was on a delinquent status for non-renewal from July 1, 1987, until his application to change the status of his license and reinstate his license was approved May 23, 1988. In his application, dated April 4, 1988, respondent listed his residence address as 8440 Byron Avenue, Miami, Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a reprimand and administrative fine in the sum of $250 against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 3. 2 & 4. Addressed in paragraph 4. 3. To the extent pertinent, addressed in paragraph 1. 5-7. Addressed in paragraphs 7 and 8. 8-9. Addressed in paragraph 5 and paragraph 2 of the Conclusions of Law. 10. Addressed in paragraph 9. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. John Gonzalez 8440 Byron Avenue, #1 Miami, Florida 33167 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to this proceeding, Respondent, August Nocella, was a certified aluminum contractor having been issued license number C-3197. Respondent was the certified contractor for Allied Aluminum Company (Allied Aluminum), 1017 Robinson Drive, St. Petersburg, Florida. On March 28, 1994, Mr. Tim Connolly contracted with Allied Aluminum to build a screen enclosure on an existing second floor deck. The screen enclosure was to be constructed at Mr. Connolly's residence located at 2200 Park Street, St. Petersburg, Florida, at a cost of $2,897.00. The proposal submitted to Mr. Connolly by Allied Aluminum on March 28, 1994, contained an option under which a third floor wood deck would be constructed for $2,000.00. Pursuant to the proposal, Mr. Connolly had ninety days in which to exercise this option. The proposal stated in part the following: <90 days from March 28, 1994, build wood deck approximately 400 square feet at $2,000> The proposal was not prepared or signed by Respondent, but by an employee of Allied Aluminum. The inclusion in the proposal of the option and estimate for construction of a deck was done without Respondent's knowledge or direction. Pursuant to the contract between Allied Aluminum and Mr. Connolly, the screen enclosure was constructed. The construction project began on April 28, 1994, and was completed on May 3, 1994. There is no proof that Respondent did not comply with the terms of the agreement, that the construction of the screen enclosure was not performed in a workman like manner, or that the work did not conform to existing building codes. The Standard Building Code, the code adopted by Pinellas County and applicable to construction projects in St. Petersburg, required that a contractor submit building plans and obtain a building permit prior to initiation of a construction project. Respondent applied for and secured a building permit for construction of the screen enclosure on May 31, 1994, four weeks after the project was completed. Plans for the screen enclosure were submitted with Respondent's application for the building permit. Respondent was assessed and paid $44.00 for the building permit. The Standard Building Code also required that the certified contractor call for an inspection of the construction project within six months of the completion date. Respondent completed the screen enclosure on or about May 4, 1994, but never called for an inspection of the work. At some point in April or May 1994, Mr. Connolly informed Respondent that he wanted the wood deck built under the terms and conditions set forth in the March 28, 1994 proposal. Respondent immediately told Mr. Connolly that he could not construct the third floor deck. Upon being informed by Respondent that he could not build the wood deck, Mr. Connolly insisted that Respondent find someone to construct the third floor deck pursuant to the terms in the proposal. Mr. Connolly threatened to withhold payment from Respondent for construction of the screen enclosure if Respondent failed to locate someone who could construct the deck at or below the price quoted in the proposal. Mr. Connolly followed through on his threats regarding payment to Respondent. On or about May 23, 1994, Mr. Connolly wrote a check to Respondent to pay for construction of the screen enclosure, but subsequently stopped payment on the check. In an effort to receive payment for construction of the screen enclosure and to appease Mr. Connolly, Respondent attempted to locate a builder who would construct the third floor deck. After looking in the St. Petersburg Telephone Directory, Respondent called several companies listed as builders of decks. Decked Out Construction, Inc. (Decked Out) was one of the companies contacted by Respondent on behalf of Mr. Connolly. The telephone directory entry for Decked Out contained a license number for the company as well as the address and telephone number of the business. Respondent interpreted the published license number as evidence that Decked Out was qualified to perform the type of work under which it was listed. No evidence was presented indicating that Decked Out was not so licensed. On or about May 23, 1994, Decked Out sent Randy Miller to Mr. Connolly's residence to determine if it could construct the deck and, if so, to give an estimate. Mr. Miller determined that Decked Out would be able to construct the third floor deck for a cost within the price range quoted in the March 28, 1994 proposal. After Respondent was informed by Randy Miller that Decked Out could construct the deck for the amount stated in the March 28, 1994 proposal, there was no further contact between Respondent and Mr. Miller. All communication regarding construction of the wood deck at 2200 Park Street North was between Mr. Connolly and Mr. Miller. The deck was constructed by Decked Out on or about May 26, 1994, at a cost of $1010.00. The construction project took about one day. The $1010.00 payment for construction of the third floor deck was given directly to Mr. Miller by Mr. Connolly. There is no evidence that Respondent's certificate as an aluminum contractor has been subjected to disciplinary action on any prior occasion by Petitioner. The normal penalty imposed for a contractor's failure to obtain a building permit prior to beginning a project is payment of twice the amount of the permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Pinellas County Construction Board enter a Final Order finding Respondent, August Nocella, guilty of violating Chapter 89-504, Section 24(2)(d) and (n), Laws of Fla., and imposing a total fine of $144.00, $44.00 for failure to timely obtain a building permit, and $100.00 for failure to call for an inspection of the project. RECOMMENDED that Count III and COUNT IV of the Administrative Complaint be DISMISSED. DONE and ENTERED this 26th day of February, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3515 To comply with the requirements of Section 120.59(2), Fla. Stat. (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted and incorporated except to extent unnecessary, irrelevant, or immaterial. Second sentence rejected as to the request that was made on April 20, 1995. The evidence shows that an inspection, not a permit, was requested on that date. Rejected as not supported by the greater weight of the evidence. Accepted as to statement that Respondent provided name of firm that would construct project in accordance with proposal amount. Statement that the firm or person was unlicensed is rejected as not supported by competent and substantial evidence. Second sentence is rejected as not supported by competent and substantial evidence, and by the greater weight of the evidence. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 John E. Swisher, Esquire 669 First Avenue North St. Petersburg, Florida 33701 Howard Bernstein Senior Assistant County Attorney Pinellas County 315 Court Street Clearwater, Florida 34616
Findings Of Fact At all times relevant hereto, Respondent, Roger S. Williams, held registered building contractor license number RB0026339 issued by Petitioner, Department of Professional Regulation, Construction Industry Licensing board, authorizing him to perform contracting under his individual name. Respondent, Frederick S. Schreiner, held certified general contractor's license numbers CG C004811 and CG CA04811 also issued by Petitioner authorizing him to perform contracting under his individual name and under Cape Development Corporation. Williams served as president of Architectural Builders, Inc. (ABI), a development firm located in Palm Bay, Florida. Schreiner was engaged in the contracting business generally in the Brevard County, Florida area. He has done construction work for ABI and Williams for the past eight or nine years. ABI held no licenses from either the state or local governments. On October 31, 1979, ABI entered into a construction contract with Jack and Stella Oleksy to construct a home at 842 South Becker Street, Palm Bay, Florida. The contract was approved by R. S. Williams as president of ABI. At a later undisclosed date, Williams attempted to pull a City of Palm Bay building permit on behalf of ABI. Whether the City gave formal or informal approval at that point is not clear; in any event the construction of the home began shortly thereafter. Several weeks later the City's chief building official told Williams that because he did not have local competency with the City, he could not pull a permit for a job. Williams was also advised that a recent change in state law required ABI to qualify to do business if ABI intended to construct homes within the City. When told that Frederick Schreiner would be constructing the home for ABI and that Schreiner held an appropriate license, the City official told Williams to have a construction contract executed between ABI and Schreiner to build the home. Thereafter, Schreiner pulled a permit for the job and posted it on the building site. He also gave the City a contract executed by he and ABI and which was dated November 29, 1979. During the course of the construction, Schreiner visited the building site approximately six to eight times. The work was done entirely by subcontractors who had been used on other construction jobs by Williams and Schreiner. The subcontractors were paid by ABI but worked under the supervision of Schreiner. When the job was completed Williams signed the final payment affidavit on which it was indicated that Williams was the contractor on the job. Oleksy was on the site daily to inspect the work. He complained periodically about various aspects of the job to Roger Williams. His main complaint concerned the trusses on the roof which he contended were out of alignment causing a wavy and uneven roof line. After the house was essentially completed, Oleksy lodged a complaint with Williams concerning the workmanship on the roof. Williams sent a carpenter to visit the premises who found some "variations" and worked for approximately three hours to correct the problem. He was then told by Oleksy it looked okay. Within the next few days, Oleksy again complained to Williams that the roof was wavy. Williams then sent out a roofing crew to attempt to correct the problem. After they completed their work, Williams received no further indication that the owner was unhappy. Williams later had a local relator familiar with the subdivision and an experienced carpenter who had framed more than 150 homes to view the roof. Both concluded the roof was of good workmanship and of similar quality to other homes in the neighborhood. Oleksy later filed a complaint with the City of Palm Bay concerning his roof. The City sent its chief building official to inspect the home. He described the roof as being of "poor workmanship". The same conclusion was reached by the city building inspector who also inspected the property. Because of this, the City made the notation "Hold problem roof" in its file and did not issue a certificate of occupancy to Oleksy. However, the City did not construe the roof to constitute a violation of the building code. Respondents asserted that a 1979 change in the law as to the qualification of agents caused doubt and confusion as to what was required by ABI and Williams. They also point out that if indeed a violation occurred, it was not intentional. Rather, Respondents simply desired to comply with all applicable statutes and regulations so that their construction businesses could continue to operate in a lawful manner. Other than the alleged violations herein, Respondents were not shown to have been subject to any prior disciplinary proceedings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Roger S. Williams, be found guilty as charged in Count I, and be given a public reprimand. the remainder of the charges should be dismissed. It is further RECOMMENDED that Respondent, Frederick L. Schreiner, be found guilty as charged of all allegations except willfully and deliberately violating a state law, and be given a public reprimand. DONE and ENTERED this 29th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982.
