Findings Of Fact Respondent, Eugene Amrhein, is a certified roofing contractor, license number CC C020238, and was the qualifying agent for Knight Roofing, Inc. at all times relevant to these cases. On or about December 16, 1982, Respondent, conducting business through Knight Roofing Inc., contracted with Evelyn Nickerson for reroofing of a home at 707 N.E. 7th Street, Fort Lauderdale, Florida for a contract price of $1,485. She gave Respondent a downpayment of $785, and upon completion of the project paid the balance of $700. Respondent commenced work on the project without obtaining a permit, as required by Section 301.1(k), South Florida Building Code. Respondent also failed to obtain an inspection as required by Section 305.2(a), of this code. On or about March 10, 1981, Respondent conducting business through Knight Roofing, Inc., contracted with Judevilla Geria for the rebuilding of an existing flat tile roof for a contract price of $4,100. Respondent did not obtain the required building permit, in violation of Section 301.1(k), South Florida Building Code. Respondent did not perform the work contracted in that only a coat of paint was applied. He failed to rebuild the existing roof by recementing each tile, replacing rotten lumber, soffitt and fascia, nor did he replace approximately 50 tiles as required by the contract. However, Respondent has honored his warranty to Geria to the extent of repairing four leaks that developed subsequent to the work. On or about June 29, 1982 Respondent contracted with Golda Oxenberg to waterproof a roof at 3253 Foxcroft Road, Miramar, Florida. The contract price was $1,000. The project was completed and Respondent was paid in full. The Respondent violated Section 301.1(k), South Florida Building Code by failing to obtain a permit for this project. On or about August 22, 1983, Knight Roofing Inc., contracted with Joseph Castellano to repair the roof of a home at 1215 1st Street, Indian Rocks Beach, Florida. The contract price was $600, and included a two-year warranty. At no time was a licensed roofer present at the job site. David Ness, then an unlicensed individual, contracted for the work, performed the work, and received the payments. At no time did the Respondent supervise the work on the Castellano home. After completion, the roof began to leak. Respondent has not repaired the leak, despite his warranty. Respondent violated Section 108.2(d), Standard Building Code (adopted by Indian Rocks Beach Ordinance 291) by failing to obtain required inspections. However, no evidence was presented to show that Respondent violated Section 108.2(b), Standard Building Code, since a permit was obtained. Respondent has moved, but failed to notify the Construction Board of his new address as required by Rule 21E- 15.07, F.A.C. On March 7, 1984, Respondent contracted with Ralph Huff for roofing work at 3210 N.E. 9th Avenue, Pompano Beach, Florida. The contract price was $5,725, and the work was completed. Respondent admitted at hearing that he failed to follow up on his warranty agreement. Respondent did not violate Section 305.2(a), South Florida Building Code since a final inspection was obtained on October 25, 1984.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's license. DONE and ENTERED this 25th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER 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 25th day of June, 1985. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Beggs, Esquire BEGGS and VECCHIO 3012 East Commercial Boulevard Fort Lauderdale, Florida 33308 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department, is the state agency charged with the duty and responsibility of regulating the practice of contracting pursuant to Chapters 20, 455 and 489. At all times material to the allegations of the Administrative Complaint, Randy Falls, d/b/a DRC Contractors LLC, was licensed as a Florida State Certified Building Contractor, having been issued license number CGC 1507600 on August 12, 2004. His licensure status is designated as "Current, Active." Kingston Shores Condominiums (Kingston Shores) is located in Ormond Beach, Florida. Several condominiums in Kingston Shores were badly damaged in Hurricane Charlie in 2004. Marvin Harris is the president of the condominium association of Kingston Shores. Following Hurricane Charlie, Mr. Harris was approached by Kerry Brooks of JTC Reconstruction and Restoration Services (JTC). Mr. Brooks proposed that his company perform repairs and reconstruction services to Kingston Shores. Mr. Harris asked Mr. Brooks for the license number of the general contractor under whom JTC would be working, so it could be posted in the condominium offices. Initially, Mr. Brooks provided a license number of a general contractor who, when contacted by Mr. Harris, informed Mr. Harris that he knew nothing of JTC. Mr. Harris again asked Mr. Brooks for the license number of the general contractor and was given the license number of Respondent, Mr. Falls. Mr. Harris checked with “the department of licensing” to be sure Mr. Falls’ license was valid, but did not contact Mr. Falls to make sure he was aware of the work being done by JTC. The work performed by JTC was “extremely shoddy substandard work.” After performing unacceptable work for approximately one year, JTC abandoned the project leaving the work unfinished. In addition to the work done by JTC for Kingston Shores, at least one individual condominium owner, Paul Ross, contracted with JTC to perform restoration and repairs of his condominium unit. The contract between Mr. Ross and JTC, dated May 11, 2005, does not mention Mr. Falls or his company, DRC General Contractors. The contract was for a total of $28,464.85. Mr. Ross confirmed through personal research that JTC was a Georgia company located outside of Atlanta and that Mr. Falls held a valid Florida general contractor’s license. Mr. Ross and his wife initially paid JTC $5,652 for some work which was performed. He later paid JTC $8,607, for which no work was performed. As with the work done for Kingston Shores, the work performed by JTC was unacceptable and incomplete when JTC abandoned the job. While Mr. Ross assumed that JTC was operating under the auspices of Mr. Falls and that Mr. Falls would be overseeing the work, he never paid any money to Mr. Falls. About the time Mr. Harris was contacted by Mr. Brooks, Respondent was contacted by Jack Turner of JTC. According to Mr. Falls, Mr. Turner identified himself as a representative of Kingston Shores. Mr. Turner proposed that they (Falls and Turner) would sign a contract for work after Mr. Turner dealt with insurance companies, and that Mr. Falls would get a percentage of the money up front. At that point, Mr. Falls “pulled the permit.” That is, on October 7, 2004, Mr. Falls completed, signed, and submitted a Volusia County Commercial Permit Application for Kingston Shores. The appropriate permit or permits were issued by Volusia County on November 30, 2004. Sometime thereafter, Mr. Falls moved to Pensacola and apparently did not have any more contact with Jack Turner. At the time he pulled the permit, Mr. Falls did not have a contract with JTC, Kingston Shores, or any individual condominium owner. At no time material to this proceeding was Respondent involved in the supervision of the individuals who performed the work done on the Kingston Shores property nor did he supply any of the workers who performed the work on the subject property. On July 20, 2005, Mr. Falls wrote to Volusia County requesting that the construction permit(s) be deactivated “due to nonpayment to contractor.” Mr. Harris then contacted Mr. Falls who informed Mr. Harris that JTC owed him money, and that he would need $12,000 to reinstate the permit(s). Mr. Harris did not agree to paying that amount and threatened legal action. According to Mr. Falls, he requested the $12,000 because “they had done work without me knowing.” On October 26, 2005, Mr. Falls wrote to Volusia County requesting reinstatement of the construction permit “for final inspections.” After the permit(s) were reinstated, construction work resumed. It is unclear from the record who performed the work at that point, although Mr. Harris referred to having “other contractors come in.” However, it was Mr. Falls who obtained the certificate of occupancy from Volusia County which is dated January 23, 2006. Mr. Falls did not receive any payment from JTC for any work done at Kingston Shores. He acknowledges that pulling a permit without a contract or a letter of intent was “sheer stupidity . . . . I mean, I had just got my license, you know, I just got it. So I was an idiot. I did something stupid, and unfortunately people got hurt over it.” Mr. Falls shows genuine remorse for the consequences of his actions. On January 24, 2006, Mr. Harris executed a General Release which states as follows: Know all men by these presents that Marvin Harris, serving as representative for Kingston Shores Condominium Inc. (First Party) in consideration and [sic] services received, specifically re-applying for six (6) building permits, and passing the final inspection for C.O. Occupancy on all six (6) from DRC General Contractors, LLC and Randy Falls (Second Party) receipt of which is hereby acknowledged release the second party from any suits, damages relating to materials, or workmanship by Second Party at Kingston Shores Condominium, Inc. at 5500 Ocean Shore Blvd., Ormond Beach, Florida 32176. Respondent is no longer in the construction business. He currently earns $24,000 a year as an EMT and is studying to be a paramedic. The amount of the Department's costs of investigation and prosecution is not in evidence
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order imposing fines in the amount of $1,000 for violation of Subsection 489.129(1)(d); $1,000 for violation of Subsection 489.129(1)(e); and $1,000 violation of Subsection 489.129(1)(m), Florida Statutes; pay $8,607.00 in restitution; and require Respondent to attend seven additional hours of continuing education classes. DONE AND ENTERED this 24th day of March, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2008. COPIES FURNISHED: Collin W. L. Mcleod, Esquire Wright, Fulford, Moorhead & Brown, P.A. 145 North Magnolia Avenue Orlando, Florida 32803 Randy Falls 1250 Scottsdale Drive Ormond Beach, Florida 32174 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1040 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1040 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.
Findings Of Fact Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488 9675 COPIES FURNISHED: Mr. J.K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. Norman Rivers 1710 South East 19th Street Ocala, Florida 32670
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
The Issue Whether Respondents committed the violations alleged in the Administrative Complaints filed against them and, if so, what penalties, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Joint Statement of Facts3: Each of the five projects at issue in these consolidated cases (the Vista Builders Project, the Toll Brothers Project, the Jandjel Project, the Shelby Homes Project, and the Rycko Project, collectively referred to hereinafter as the "Five Pool Projects"4) involved the construction of a swimming pool by The Pool People for a customer, a task which, at all material times, The Pool People was authorized to undertake through its qualifying agent (Daniel Lowe) by virtue of its holding the certificate of authority from the Florida Construction Industry Licensing Board (certificate number QB 0002429) referenced in the parties' Stipulation of Fact 3. The Pool People does not now have, nor has it ever had, a certificate of authorization (issued by the Florida Engineers Management Corporation pursuant to Section 471.023, Florida Statutes) to engage in the practice of engineering in Florida as a business organization "through licensees under [Chapter 471, Florida Statutes] as agents, employees, officers, or partners." At all material times, Mr. Huang was a "licensee under [Chapter 471, Florida Statutes]," that is, an individual authorized to engage in the practice of engineering in Florida. Mr. Huang signed and sealed the engineering plans that The Pool People submitted in applying for the building permits required to complete the Five Pool Projects. The written contracts The Pool People entered into with its customers for the Vista Builders, Toll Brothers, Shelby Homes, and Rycko Projects did not expressly mention anything about engineering services5; however, such services were performed in connection with each of these projects, as well as in connection with the Jandjel Project (those services being the work associated with the aforesaid engineering plans that accompanied the building permit applications The Pool People filed). The only record evidence as to the arrangement Mr. Huang had with The Pool People and how he went about providing his services pursuant to that arrangement was the testimony given by The Pool People's senior vice president and chief operating officer, Walter Barrett, at the final hearing in DOAH Case No. 05-1637RU. This "former testimony" of Mr. Barrett, who was not shown to be unavailable to testify about these matters at the final hearing in the instant cases, was offered by Petitioner (as Petitioner's Exhibit 6). It constituted hearsay evidence. To the extent that it was offered against Mr. Huang,6 this hearsay testimony is insufficient, standing alone as it does, to support any finding of fact because it would not be admissible over objection in a civil action in Florida.7 See Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. . . . [T]his evidence was not sufficient in itself to support the Board's findings."); Doran v. Department of Health and Rehabilitative Services, 558 So. 2d 87 (Fla. 1st DCA 1990)("The documents presented before the hearing officer were hearsay and did not come within any recognized exception which would have made them admissible in a civil action. . . . Because the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order."); and § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). To the extent that it was offered against The Pool People, however, this hearsay testimony is sufficient to support factual findings based exclusively thereon because it is an "admission," within the meaning of Section 90.803(18), Florida Statutes, and therefore would be admissible over objection in a civil action in Florida. The following are such factual findings (based exclusively on Mr. Barrett's "former testimony"), which are made only with respect to DOAH Case No. 05-0382: A little more than a year prior to the final hearing in DOAH Case No. 05-1637RU (which was held on July 21, 2005), The Pool People "retained [Mr. Huang as] an independent contractor" to provide it with engineering services on a continuing (as opposed to a per project) basis. After being "retained," Mr. Huang worked on various projects, including the Five Pool Projects, for The Pool People. The Pool People had Mr. Huang come to its office "on a regular schedule," three times a week, for generally two to four hours each visit, to review "construction drawings" (typically consisting of four pages) that had been prepared, in accordance with standard specifications that Mr. Huang had already approved, by personnel in its "drafting department" (none of whom were licensed engineers). Mr. Huang was expected to conduct his review "using his professional judgment." The final products of the review process were engineering plans signed and sealed by Mr. Huang. These plans were submitted to The Pool People's "permitting department" for "inclu[sion] in [the appropriate] applications . . . for building permits." They did not "go to the customer at all." For his services, The Pool People paid Mr. Huang based, not on the number of hours he actually worked nor on a per project basis, but on a "[p]rojected hourly rate per week."8 In May 2004, The Pool People received from the Florida Board of Professional Engineers a Notice to Cease and Desist from "hiring an engineer to . . . develop . . . plans for [building] permit[s]" without having a certificate of authorization from the Florida Engineers Management Corporation. The Pool People declined to comply with the directive set forth in the notice because it did not believe, after consulting with its counsel, that it was acting unlawfully.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the BPE dismiss in their entireties the Administrative Complaints filed in these consolidated cases. DONE AND ENTERED this 29th day of November, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of November, 2006.
The Issue At the commencement of formal hearing, Petitioner voluntarily dismissed Paragraphs 5 and 7 of the pending Administrative Complaint, and the formal hearing proceeded upon Paragraphs 1-4 and 6 of the Administrative Complaint. The Department of Professional Regulation prosecuted Respondent for one count of the following enumerated alleged violations: Sections 489.129(1)(d), willful or deliberate disregard of building codes; (j), failure in any respect to comply with the Act; (m), fraud, deceit, or gross negligence; and 489.105(4), Florida Statutes, all of which arise out of a single incident.
Findings Of Fact At all times material to the Administrative Complaint, Respondent, Leonardo Sanchez, was licensed by the State of Florida as a certified general contractor holding license numbers CG C004810 and CG CA04810. Robert G. Wolf, Investigator Specialist II with Petitioner, investigated a complaint made by Mirta Garcia against a contractor named Leonardo Sanchez. Ms. Garcia told him she had entered into a contract with a Mr. Sanchez; that she had paid Sanchez a sum of money for an addition to her house; that Sanchez never supplied her a written contract; and that Sanchez pulled a permit for the work and never completed it. Ms. Garcia did not appear and testify at formal hearing and her representations to Mr. Wolf are mere hearsay. They do, however, supplement or explain other competent proof. Mr. Wolf spoke with a Mr. Sanchez who, in Mr. Wolf's words "acknowledged the contractual relationship with the Garcias." (TR-15) Mr. Wolf visited Ms. Garcia's home and determined that a job of construction had been begun there but that interior work had yet to be completed. John Delaney is Assistant Chief Code Enforcement Officer for the Board of Rules and Appeals for the Building and Zoning Department, Dade County. He also visited the Garcia home and on August 18, 1987 it was approximately 80 per cent complete, in his opinion. He presented as a certified business record, a building permit application for an owner "Mirta Garcia" by "Caribean Window" [sic] applied for in the name of Leonardo Sanchez, dated "accepted 12/9/85," and carrying the contractor number CGC004810 and the social security number 109-42- 4859 (P-2). The contractor number and social security number on the application match Respondent's contractor's license and social security number. "Caribbean Window" is one of the entities for which Respondent is the registered qualifying agent. Dade County Ordinance 57-22 establishes that the South Florida Building Code was in effect in Dade County at all times material to this Administrative Complaint. Section 305.2(a) of the South Florida Building Code establishes a mandatory duty for the permit holder to obtain a reinforcing inspection. Mr. Delaney also presented a certified computer printout of a Building Inspection log or record (P-3) showing that no one, including Respondent, had obtained the required reinforcing inspection related to the Garcia job as of the date of the computer inquiry. The computer printout reflects the dates of other inspections and the date and number of the application to which it pertains; it does not clarify when Mr. Delaney made his computer inquiry but a reasonable inference is that it was made the date of his visit to the Garcia home, August 18, 1987. No reason was presented to excuse Respondent as permit holder from obtaining the appropriate inspection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Section 489.129(1)(d), assessing an administrative fine therefor of $250.00, and dismissing the remaining charges. DONE and RECOMMENDED this 29th day of December, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3445 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7 are accepted as modified to reflect the evidence of record. Respondent's PFOF Respondent submitted no proposals. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 G. W. Harrell, Esquire, and Donald Osterhouse, Qualified Representative Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Leonardo Sanchez 12700 Southwest 37 Street Miami, Florida 33175 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
