The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)2., (g)3., (j), (o) and (m), Florida Statutes (2004),1 and, if so, what discipline should be imposed.
Findings Of Fact Mr. Spencer holds a current, active Florida State Certified Building Contractor License, having been issued license number CBC 1252039. He is certified with the Department as doing business as KCLS Spencer, Inc. (KCLS), and is the primary qualifying agent thereof. Mr. Spencer submitted a Proposal, bearing the letterhead of KCLS and dated September, 14, 2004, to Jesse J. Ross, Sr. (Mr. Ross), which pertained to the exterior remodeling of Mr. Ross' jewelry store located at 6290 North Atlantic Avenue, Cape Canaveral, Florida 32920. Initially, the Proposal put the cost for the remodeling at $48,762.86. After some negotiating, the Proposal that ultimately formed the basis of their contract set the cost at $45,000.00 and relieved Mr. Spencer of the obligation of constructing walkways. The Proposal's explicit terms provide: As per specifications and blueprints pricing is as follows; labor and material to renovate existing exterior building. Prices to include all demolition of all exist [sic] structures, installation of siding, columns, dormers, cupolas, two (2) French doors, windows, front gutters and down spouts, electrical, and final painting. Notes: Signs by owner. Paint colors by owner. Power and water supplied by owner. Color of pre-painted metal roof determined by owner. Material storage space to be provided by owner. Quotes good for 10 days (after 10 days, please reconfirm material pricing). 20% deposit $9752.57 due to start project, invoicing to [sic] made weekly per actual costs. Essentially, much of the exterior remodeling to be performed is simply stated as being based on the specifications and blueprints, which Mr. Ross provided to Mr. Spencer. These specifications and blueprints have not been received in evidence, but there appears to be no dispute among the parties regarding the scope of the work. The terms of payment were for an initial 20 percent deposit of $9,752.57, with weekly invoices to follow based on actual, ongoing costs. On October 25, 2004, Mr. Ross' lender, Coastal Bank, drafted a loan check for $9,752.57 made payable to KCLS. Sometime shortly thereafter, KCLS began the work of remodeling the exterior of Mr. Ross' store. As work progressed, Mr. Spencer provided Mr. Ross with an invoice, dated November 11, 2004, requesting payment for costs incurred. Despite listing on the invoice an "off set balance" of $2,515.32 that applied costs to date against the initial deposit, the total amount due was nevertheless listed as $12,268.04. On November 23, 2004, Mr. Ross wrote a check for $12,268.04 made payable to Mr. Spencer personally. Later, Mr. Spencer provided Mr. Ross with another invoice, dated December 23, 2004, requesting payment for further costs incurred. The total amount due was $8,475.24. By check dated that same day, Mr. Ross wrote a check for $8,475.24 made payable to Mr. Spencer personally. At this time, Mr. Ross received assurance from Mr. Spencer that no further money would be due, until the work was entirely completed. Sometime between Christmas 2004 and New Year's 2005, Mr. Spencer returned again to Mr. Ross' store and requested from him an additional $3,000.00. At this point, Mr. Ross refused, because of Mr. Spencer's earlier assurance that no further ongoing payments would be demanded and because of the lack of any work performed since the last payment. Mr. Spencer insisted that he had all of the necessary materials in his warehouse and that he would be back on the Monday following the New Year's holiday to work on the store. He never returned and could not be contacted by Mr. Ross. As the storefront remained in disrepair, Mr. Ross was compelled to contract with other parties to complete the work. Sunland General Contractors, Inc. (Sunland); Baker Roofing (Baker); and D.A.B. Painting, Inc. (DAB), completed the work that Mr. Spencer had previously been contracted with to perform. According to the testimony of Mr. Ross, they based their work upon the same specifications and blueprints that Mr. Ross had previously provided to Mr. Spencer. Sunland, except for the roofing and painting, performed what work that remained. Based on a payment history dated December 16, 2005, the total cost of Sunland's work for Mr. Ross was $23,770.00. However, this cost includes $3,990.00 for walkway decking, which Mr. Ross and Mr. Spencer, in their previous negotiations, had agreed would not be part of their final agreement. As such, the relevant cost in the instant case for Sunland's work is $19,780.00. According to a Baker invoice, dated November 10, 2005, the cost to Mr. Ross for the new roof was $14,935.00. According to a letter from DAB, dated April 23, 2005, Mr. Ross paid $6,500.00 for the painting of his store. In sum, the relevant costs to Mr. Ross for this subsequent work total $41,215.00. Sometime in October of 2005, Mr. Ross provided Mr. Frank A. Wisniski (Mr. Wisniski), a general contractor and owner of Sunland, with a set of blueprints and asked him to takeover the job that Mr. Spencer had not completed. Mr. Wisniski further testified on the condition of the building, as Mr. Spencer had left it. According to his testimony, some of the siding was not nailed properly, and the columns in the front of the store were not well secured, a potentially hazardous situation. Overall, in his opinion, he felt that Mr. Spencer had completed approximately 25 percent of the total scope of the job. Mr. Robert T. Shindo (Mr. Shindo) is an investigator for the Department. He responded to Mr. Ross' complaint to the Department regarding Mr. Spencer's work on the store. He found, "basically, a building that was not in repair." Some siding work had been done on the north face of the building, as well as some column work. However, the columns appeared damaged or incomplete, and the siding appeared incomplete as well. Besides the siding and columns, Mr. Shindo testified that "[t]here did not appear to be any other work." Overall, Mr. Shindo had familiarized himself with the Proposal and estimated that between ten and 15 percent of the job appeared to be complete. Mr. Michael McCaughin (Mr. McCaughin) is employed at the Building Code Division of Brevard County and is the chief building official for the county. Mr. McCaughin concluded that based on the work specified in the Proposal of Mr. Spencer, the only item which would not have required permitting is the gutters. Mr. McCaughin personally searched the county permit database, and no permits were ever pulled by Mr. Spencer for the remodeling of Mr. Ross' store. Petitioner's Exhibit 14, a printout of the permits that have been pulled for Mr. Ross' store, confirms Mr. McCaughin's testimony. Moreover, Mr. McCaughin "performed a search of Mr. Spencer under his name, under his state license number, and also under the company name, KCLS and, could not find any record of any permits being pulled, nor was he registered with Brevard County contractor licensing." Mr. Spencer, in testifying in his own behalf, mainly confirmed the testimony of the other witnesses and the other facts in evidence. Among other things, he confirmed that he and Mr. Ross had an agreement for KCLS to remodel the exterior of the store and that the agreement was based on the Proposal he had submitted to Mr. Ross. He agreed that he received the payments that Mr. Ross testified to having paid and testified that he never pulled the permits for the job, because he "[j]ust didn't take the time to do it." Mr. Spencer's recollection of his final conversation with Mr. Ross was substantially the same as Mr. Ross' testimony, with Mr. Spencer testifying that he had told Mr. Ross he would be back to work on the job and that there was an understanding that final payment would be made at the end of the project. He goes on to testify that he did actually go back after this final conversation to finish up the siding on the south side of the store and that the siding was completed. This last testimony is not credible. In Mr. Spencer's defense, some of the work was farmed out to subcontractors, and they were paid in full. He then testified that he was planning on continuing the work but that he was waiting on a roofer. While he was waiting for the roofer, he testified that there was some dispute between himself and Mr. Ross regarding a ring he had received from Mr. Ross. He testified that the ring fell apart and that the dispute ended their working relationship. But for "$8200 - Ring" being handwritten on the Proposal alongside the other payments made by Mr. Ross, no mention of this ring was made by the Petitioner. Presumably, this ring was given as in-kind payment to Mr. Spencer, but without anything more to go on, the insufficiency of the relevant evidence precludes any recognition of the ring as payment. Therefore, the three previously described checks, furnished by Mr. Ross and made payable to Mr. Spencer or KCLS, are found to represent the entirety of the consideration furnished. To refresh, these checks are dated October 25, 2004; November 23, 2004; and December 23, 2004, and amount to $9,752.57; $12,268.04; and $8,475.24, respectively. In sum, they total $30,495.85. Mr. Spencer also testified about the installation of French doors at Mr. Ross' store. Mr. Ross earlier testified that he had refused delivery of two French doors, when a subcontractor arrived to install them, because they were not the style, size or number he desired. He further testified that Mr. Spencer was aware that he desired six doors with plastic slats (not two as listed in the Proposal), because he had directed Mr. Spencer to examine the doors of a nearby storefront, whose style he wished to replicate. Mr. Spencer was questioned about these doors by opposing counsel. Opposing counsel asked, "Were the French doors ever installed into the building?" Mr. Spencer responded, "Not that I know of, by Bill, no." Several questions later, opposing counsel asked, "Okay. My point is, the doors were never installed in the project; is that your understanding?" Mr. Spencer responded, "My understanding from Bill was that, yes, they were installed." On this issue, Mr. Spencer could only speculate, because he never returned to the job site to check whether the doors had been installed. Mr. Spencer's testimony on this topic is not credible. Despite never being installed, Mr. Ross paid a $4,700.00 deposit for the French doors that was never refunded. When asked why this money was never refunded to Mr. Ross, Mr. Spencer goes on to testify that he trusted the subcontractor delivering the doors, that he assumed they were delivered, and that that's why he never attempted to receive a refund of the doors' cost from the subcontractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent violated Subsections 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; finding that Respondent did not violate Subsection 489.129(1)(g)3., Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(g)2., Florida Statutes; imposing an administrative fine of $2,000.00 for the violation of Subsection 489.129(1)(j), Florida Statutes; imposing an administrative fine of $1,000.00 for the violation of Subsection 489.129(1)(m), Florida Statutes; imposing an administrative fine of $1,500.00 for the violation of Subsection 489.129(1)(o), Florida Statutes; requiring Respondent to make restitution to Mr. Ross in the amount of $26,710.85; placing Respondent on probation for a period of three years; and requiring Mr. Spencer to attend a minimum of seven additional hours of continuing education classes. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of April, 2008.
The Issue The issue presented for decision herein is whether or not Respondent engaged in conduct, set forth hereinafter in detail, which amount to wilful or deliberate violation of local law and thereafter abandoned a construction project without just cause, prior to completion.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. The Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of contracting. Respondent is, and has been at all time material hereto, a registered general contractor having been issued license number RG 0006192. On July 15, 1985, Respondent contracted with Mr. and Mrs. Louis Mara to renovate a garage at the Mara home in Hollywood, Florida for a price of $3,000. (Petitioner's Exhibit 2). Respondent was given, prior to commencement of the job, a $2,000 deposit. Respondent commenced performing the Mara job in Hollywood without first obtaining a building permit. About one month after Respondent commenced completion of the Mara's project, he left the project having completed less than 20% of the work he contracted to perform. Respondent has not returned to the Mara's project in more than two years despite the Mara's plea that he return to complete the work. A review of the official records for the City of Hollywood reveals that Respondent did not obtain any permit to complete the garage renovation for Mr. and Mrs. Louis Mara. Pursuant to Chapter 71-575, Laws of Florida, special acts of 1971, the City of Hollywood has adopted the South Florida Building Code, as revised from time to time, as the building code for the City of Hollywood and its regulations governed the construction, maintenance, repair and condemnation of buildings for the City of Hollywood. (Ordinance #0-71-158, Section 1, 12 22-71 Petitioner's Exhibit 6). As noted, Respondent, or a representative on his behalf, did not appear at the hearing to contest or otherwise refute the allegations contained in the Administrative Complaint filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license number RG 0006192 as a registered general contractor be REVOKED. DONE and ORDERED this 28th day of January, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 28th day of January, 1988.
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 pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
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
Findings Of Fact At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of $8,270 in accordance with the draw schedule contained in the contract. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent. DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph F. Scioli, Jr. 246 North Krome Avenue Florida City, Florida 33034 Frederick Roche, Secretary 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 Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Respondent is now, and has been since 1982, a roofing contractor licensed to practice in the State of Florida. He holds license number RC 0041149. At all times material hereto, Respondent has been the licensed qualifying agent for Reinforcement Roofing and Painting Company (Reinforcement). On or about November 29, 1987, Reinforcement, through Respondent, entered into a written contract with Wayne Leidecker in which it agreed, for $4,655.00, excluding permit fees and taxes, to replace the roof on Leidecker's residence, located at 18280 S.W. 202nd Street in Miami, Florida. Shortly thereafter, Reinforcement obtained a permit from the Metropolitan Dade County Building and Zoning Department to perform the work specified in the contract. It then proceeded to begin work on the project. The felt underlayer of the new roof was improperly installed. Reinforcement laid the shingles over this improperly installed felt underlayer without first calling for a tin cap/anchor sheet inspection, in willful violation of the local building code. The result was a roof having a "wavy" appearance. To make matters worse, some of the shingles were not properly fastened to the roof deck. Furthermore, the metal eaves and gable drips were installed too close to the facie in violation of the local building code. The work on the Leidecker project, which was performed under the supervision of Respondent, was completed in January, 1988. The job, however, having been done in an incompetent manner, failed its final inspection. Efforts were subsequently made by Reinforcement, under the direction of Respondent, to correct the foregoing problems. These efforts were inadequate and unsuccessful. Consequently, the project was still unable to pass a final inspection. Leidecker was growing increasingly impatient. In the latter part of 1988, he had Charles H. Walton, the Vice-President of Bob Hilson & Company, Inc., examine the roof. Based upon his examination, Walton concluded, in a written report which he gave Leidecker, that "[d]ue to all of the above deficiencies, South Florida Building Code infractions and the waviness of the shingles, the only way that I can truthfully say that this roof can be properly corrected is to remove this existing shingle roof entirely to a smooth workable surface and reinstall a new 3-tab, 20 year type fungus resistant fiberglass shingle roof system, that meets all of the South Florida Building Code specifications and manufacturers' requirements." This was consistent with what Leidecker had been told by the building inspectors who had previously inspected the roof. Accordingly, after receiving Walton's report, Leidecker refused to allow Reinforcement to do any further patchwork on the roof. He expected Reinforcement to take the removal and reinstallation measures Walton had recommended in his written report. He would accept nothing less. By letter dated July 14, 1989, Respondent was informed that a formal hearing would be held before the Dade County Construction Trades Qualifying Board (CTQB) on the following four charges filed against him relating to the Leidecker project: Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3401.4(c) of the South Florida Building Code (SFBC) by failing to obtain the final roofing inspection required at a roofing job located at 18280 S.W. 202nd Street Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3403.3(h)(2) of the South Florida Building Code (SFBC) by failing to imbed sheets of roofing felt without wrinkles or buckles as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 3408.3(c) of the South Florida Building Code (SFBC) by failing to install metal eave and/or gable drips so the bottom of said metal drips did not touch facie and did [not] have the minimum of a one-half inch clearance from the structure as required at a roofing job located at 18280 S.W. 202nd Street, Miami, Dade County, Florida; said violation evidencing a failure to maintain the affirmative condition of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. Between November 28, 1987 and January 31, 1989, Reinforcement Roofing & Painting, Co., and/or Louis Gordon as the Qualifying Agent there for as a Roofing and Painting Contractor did unlawfully violate Section 10-22(a) of the Code of Metropolitan Dade County, Florida, in that they did fail to fulfill their contractual obligation to honor a six (6) year warranty in connection with roofing work done on the residence located at 18280 S.W. 202nd Street, Miami, Dade County, Florida. The hearing on these charges was held as scheduled on August 10, 1989. The CTQB found Respondent guilty of Charges 1, 2 and 3 and not guilty of Charge The following penalties were imposed: Charge 1- six-month suspension of Respondent's personal and business certificates and a fine of $1,000.00; Charge 2- six-month suspension of Respondent's personal and business certificates and a fine of $250.00; and Charge 3- official letter of reprimand and a fine of $250.00. In addition, he was directed to pay $257.00 in administrative costs. On October 12, 1989, Respondent made another appearance before the CTQB. He made a request that the foregoing penalties be reduced. His request was granted. The CTQB "lifted" his suspension, but with the caveat that if he did not timely pay his fines the suspension would be reinstated. Respondent failed to make timely payment. As a result, his suspension was reinstated. Neither Reinforcement, nor Respondent in his individual capacity, has yet to take the measures necessary to correct the problems with the Leidecker roof that were caused by the shoddy work done under Respondent's inadequate supervision. Respondent has been disciplined on two separate, prior occasions by the Construction Industry Licensing Board for conduct unrelated to that which is the subject of the charges filed against him in the instant case. On February 12, 1986, the Board issued a final order in Case No. 0053301 imposing a $250.00 administrative fine upon Respondent. On June 16, 1988, in another case, Case No. 81135, the Board fined Respondent $500.00 for violating the provisions of Section 489.129(1)(i), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Respondent guilty of the violations of Section 489.129, Florida Statutes, charged in the instant amended administrative complaint and suspending Respondent's license for a period one year and imposing upon him a fine in the amount of $3,500.00 for having committed these violations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1990.
The Issue The issue presented is whether Respondents are guilty of violating Section 471.033(1)(g), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Julian Irby was a licensed Professional Engineer with license number PE 43316 and Irby Engineering & Construction, Inc., held Certificate of Authorization #9511 issued by the Board of Professional Engineers. Mr. Irby has been licensed in the State of Florida as a professional engineer since 1990 and spent 21 years in the United States Navy Civil Engineer Corps. He is also a licensed general contractor. Respondent Irby was the engineer of record, with the firm name on the title block of plans for a residential construction project described as, "House Relocation, Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the relocation project). On or about June 2, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Inspections Department of Escambia County (Building Department). On or about June 7, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Department. On or about June 25, 2004, Irby signed and sealed six of six pages of plans (the June 25 plans) for House Relocation at 1000 La Paz Street, and filed them with the Building Department. Permitting for the project was performed in a two- step process, with a preliminary foundation plan submitted before the house was moved from the old site in order to obtain a moving permit and foundation permit. After those permits were issued, Respondents received test results from a geotechnical firm that caused some alteration in the design of the footings to accommodate the water table at the new site. The plans upon which the building permits were ultimately issued and which were used by the construction crew in the building process were the June 25 plans. On or about February 1, 2005, Irby signed and sealed seven of seven pages of plans for House Relocation at 1000 La Paz Street, and filed them with the Building Department on February 24, 2005. The seven pages of plans for the House Relocation signed and sealed February 1, 2005, and filed with the Building Inspections Department of Escambia County on February 24, 2005, represent the relocation project as completed. Changes made during construction and approved in the field are reflected in this set of plans. The Florida Building Code 2001, as amended 2003, is applicable to this case. The relocation project involved moving an existing home from Perdido Bay to a location several hundred feet further inland. The house was an elevated structure at the original location and was elevated at the La Paz address. Respondent Irby was not only the engineer of record but was also the contractor for the project. Certain features of the construction and design of the original structure were not known at the time the original plans were submitted for the foundation. For example, there was a façade that hid from view the I-beam, stringers and pipe posts under the floor of the home. These features could not be seen until the façade was removed in preparation for the move. Relocation projects are subject to certain exceptions under the Florida Building Code. Some design specifications normally required when building a house are not required for a relocation project, because the existing structure need not be redesigned or brought up to code as long as it meets conditions specified in Florida Building Code Section 101.4.2.3. There is no allegation that those conditions were not met in this case. The primary requirement for a relocation design is foundation plans sealed by a professional engineer or architect, if required by the Florida Building Code for residential buildings or structures of the same occupancy class. Respondents' plans filed with the Escambia County Building Inspections Department included foundation plans. Both witnesses testifying for the Petitioner stated that they did not review or prepare any calculations related to the plans and there was no evidence presented that the Building Department had required the calculations to be submitted with the plans. James Lane, who testified on behalf of the Petitioner, acknowledged that there is nothing in the Florida Building Code to prevent an engineer from using the dead weight of the house on the piers and the friction it creates as a method of construction. If the dead load of the house and the friction transfer from the house to the top of the piers is sufficient to address the lateral wind requirements, then straps (also referred to as connectors) would not be necessary to meet the requirements of the Florida Building Code. The main wind force resisting system for the relocation project was the embedment of the foundation piers in the fiberglass reinforced slab and continuous footing in the garage area. Page 6 of the June 25 plans specifies a four-inch minimum monolithic concrete slab with fiberglass reinforcement, using 3,000 PSI concrete, as well as number 4 rebar throughout the footings. There is no requirement that the exact location of rebar splicing be noted on the plans, and the plans are not deficient for failing to provide that information. Moreover, the Florida Building Code requires that a minimum of 2,500 PSI concrete be used. Respondents' design exceeded this requirement. Respondent Irby performed calculations, using the dead load weights in Florida Building Code Appendix A, that showed that the dead load of the existing house sitting on piers with the friction it created was more than sufficient to withstand the required lateral wind load. Mark Spitznagel, P.E., reviewed both the plans and the calculations and visited the construction site. He opined that the calculations showing wind loads could be supported using dead load friction between the house and the piers were correct, and that the Florida Building Code does not require an engineer to explain that no connector, or strap, is required under this circumstance. His testimony is credited. Despite the fact that no connectors were actually required, page six of the June 25 plans included directions for connectors that were used to provide additional support. The Administrative Complaint alleges that the plans do not provide adequate guidance for transfer of horizontal wind loads from the house to the supporting piers and posts or how the supporting piers and posts are to resist imposed loads from the house. The evidence presented at hearing did not indicate what information the Petitioner believed would be sufficient to meet the applicable standard of care. Moreover, the evidence presented supports the conclusion that the metal posts were never intended to transfer lateral wind loads, but were to support vertical loads. The metal posts were part of the existing house and not subject to redesign under the exemption afforded in Florida Building Code Section 101.4.2.3. Shear walls were not considered in the calculations performed by Irby. However, the June 25 plans included shear walls around the garage area, which served to provide extra support over and above what would be required by Irby's calculations. The detail provided on page 6 of the June 25 plans provided a clear load path from the foundation through the shear walls to the upper original structure. The June 25 plans admittedly do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size or thickness for top and bottom plates for the pipe posts. This information is not provided because the pipe posts were part of the original structure and there was no need to redesign them or include them in the foundation plans. The slab beneath the structure was also shown on sheets 1-3 and 6 of the June 25 plans. The slab characteristics are shown in the monolithic footing detail. The upper floor framing members, including the floor joists and the stringers and the I-beam atop the pipe posts were part of the original house design. The house was elevated at its original location, and the stringers, I-beam and pipe posts were part of the original structure. These components did not need to be shown on the plans because of the exemption provided in Florida Building Code Section 101.4.2.3. Respondents did not include main wind force resisting loads for the structure because the Florida Building Code does not require them to be shown for residential, as opposed to commercial, projects. Based on the evidence presented, only component and cladding pressures are required to be shown on the plans, and page 6 of the June 25 plans clearly provides this information. In accordance with Florida Building Code Section 1606.1.7, wind loads for components and cladding were provided showing that the structure was designed to withstand winds up to exposure category D, at 140 miles per hour. The house was actually moved and put in place on the foundation piers three days prior to Hurricane Ivan. Hurricane Ivan was a major hurricane causing extensive damage to the Pensacola area. According to the National Weather Service's Tropical Cyclone Report for the storm, Perdido Key was "essentially leveled." The house relocation project sustained no structural damage in Hurricane Ivan.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Administrative Complaint against Respondents be dismissed. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 August, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 A. G. Condon, Jr., Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Calloway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
