The Issue The issue is whether Respondent Robert Kegan (Mr. Kegan) committed violations of Chapters 455 and 468, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner Department of Business and Professional Regulation (Department).
Findings Of Fact Mr. Kegan has a Certificate of Licensure from the Florida Building Code Administrators and Inspectors Board. He was first licensed in 1994, and, unless he renewed it, the license expired on November 30, 2008. At all times pertinent, he was the Building Code Administrator in Mt. Dora, Florida. Mr. Kegan has never been employed by the City of Leesburg in any capacity. The Department is the state agency charged with regulating the practice of building code administration and inspections pursuant to Section 20.165 and Chapters 455 and 468, Florida Statutes. Linda Renn purchased a home located at 2407 Winona Avenue, Leesburg, Florida, from Mr. Kegan and his wife pursuant to a contract entered into during March 2001. Prior to entering into the contract for sale, Ms. Renn walked through the house with Mr. Kegan. Ms. Renn was aware that it was an older home and testified, "And I felt very comfortable after leaving the home and doing the walk through that even though I was buying an older home with older home obsolescent issues types, but that the renovations were enough that I felt comfortable." Ms. Renn typed up an addendum to the contract prior to execution that stated Mr. Kegan would level a part of the house that required leveling, install an HVAC, install a 220-volt outlet for the clothes dryer, and would accomplish certain other improvements prior to closing on the home. The addendum became part of the contract for sale. Mr. Kegan provided Ms. Renn with his business card indicating that he was the Building Code Administrator in Mt. Dora. Ms. Renn observed Mr. Kegan in a shirt with the Mt. Dora logo upon it, indicating that he was a building official of Mr. Dora, and she visited him in his office in Mt. Dora. There is no question Ms. Renn was aware that he was a building official in Mt. Dora. Ms. Renn claimed that because he was a building official she completely relied on the representations he made to her. However, this assertion lacks credibility because she employed an independent home inspector prior to closing. During the walk-through, the HVAC was resting upon the floor of the home's garage. However, at a time between March 17 and April 29, 2001, Mr. Kegan had the HVAC installed, as he agreed. Subsequently, Ms. Renn discovered this work was accomplished by an unlicensed individual. An inspection of the premises was conducted by Guy Medlock of Benchmark Building Inspections, Inc., on March 29, 2001. A report was issued on March 30, 2001. The report noted that the dwelling was 53 years old and had problems that one would expect from a home that old. Mr. Medlock also noted that the house had a lot of charm. Mr. Medlock's inspection noted that the dwelling required roof repairs and wood rot repairs. It was noted that it was necessary to ameliorate water leaks and correct electrical deficiencies, among other items. There were seven items noted with estimated costs of repair ranging from $50.00 to $150.00. At the time of the inspection, the 220-volt receptacle had not been installed for the washer and dryer. Mr. Medlock further noted that there was no plumbing available for the washer. Because of Mr. Medlock's report, Ms. Renn was well aware of the defects he noted, and she knew this prior to closing. The report stated that he, Mr. Medlock, had discussed the electrical deficiencies with Ms. Renn and suggested that she have an electrician inspect the dwelling. Ms. Renn testified that she gave greater weight to Mr. Kegan's knowledge than to the home inspector that she hired, but there is no basis in the record for her to arrive at that conclusion. On April 29, 2001, the day before closing, Economy Electric of Eustis, Florida, installed a 220-volt line, and Mr. Kegan paid for this work. Economy Electric's principal is Larry New. He is licensed to accomplish electrical work. He performed additional electrical work that was paid for by Ms. Renn, including upgrading wires so that her computer would not be damaged by bad wiring. On April 30, 2001, Mr. and Mrs. Kegan conveyed the premises to Ms. Renn by warranty deed. Subsequently, Ms. Renn concluded that she was not happy with certain facets of the house, and tried to contact Mr. Kegan to have her perceived problems corrected. Mr. Kegan was difficult to contact. In a letter dated November 4, 2001, Ms. Renn filed a 16-page complaint with the Department alleging numerous Florida Building Code violations by Mr. Kegan. She requested that the Department investigate these alleged violations. Sometime immediately prior to January 10, 2002, Ms. Renn had Raymond Anderson of Suter Air Conditioning, Inc., of Leesburg, inspect the HVAC. He made Ms. Renn aware of several city code infractions involving the HVAC. Sometime immediately prior to January 11, 2002, Ms. Renn had someone named James A. Dolan inspect the electrical service at the premises. In a letter dated January 11, 2002, Mr. Dolan stated that there were "national electrical code violations" at the house and that it was his opinion that an electrical inspector or building code official should look into the situation. Ms. Renn believed this to be true. Sometime immediately prior to February 5, 2002, Ms. Renn had the electrical service inspected by Bronson Electric Service, Inc., of Eustis, Florida. In a letter dated February 5, 2002, David E. Bronson reported numerous electrical deficiencies, including an improperly fused air conditioning unit. Mr. Bronson found that the electrical service to the house required an upgrade to 150 amps because the current service was inadequate. He quoted a price of $1,546.00 to accomplish the required modifications. Ms. Renn believed this to be accurate. Ms. Renn employed an inspector from Ocala, Florida, who prepared an inspection report dated May 10, 2002. She learned there were plumbing, electrical, and mechanical problems. She also learned that the roof did not meet building code standards. She noted that for a period of two and one-half years, the HVAC neither cooled nor heated, although it did make some noise. Permits were required for the electrical upgrade and for the air conditioning installation in Ms. Renn's house. No permits were obtained by Mr. Kegan, or his friends, or persons he employed to work on Ms. Renn's house, as were required by the City of Leesburg. By April 18, 2002, all permits had been obtained. Unlicensed persons worked on both the HVAC installation and the electrical upgrade. Work of that sort is lawful only if accomplished by licensed persons. The work accomplished without the appropriate permit and the work done by unlicensed persons, was done under the control of Mr. Kegan. Ultimately, Larry New, a licensed electrician, and Jimmy Harris, a licensed person, fixed all of the problems; got the work inspected; and ensured that all permits were in place. After her complaint to the Department which was drafted November 4, 2001, and submitted in early 2002, Ms. Renn was informed by the Department that she should handle the case locally. Complaints were made by Ms. Renn to the Leesburg Building Department and to many other officials of the Leesburg municipal government. Ultimately, a hearing regarding Mr. Kegan was held before the Lake County Board of Building Examiners (County Board) on August 7, 2003, in Tavares, the county seat of Lake County. Both Leesburg and Mt. Dora are in Lake County. The County Board heard charges against Mr. Kegan's contractor's license for accomplishing work in the trades of roofing, electrical, mechanical, and plumbing using unlicensed workers and failing to obtain permits. It imposed sanctions, including a $1,000 fine. The County Board required Mr. Kegan to do the work he promised, but it was clear that he had already accomplished that work, except for some roofing issues not further identified. The County Board did not address his position as the Building Code Administrator in Mt. Dora, Florida. The action of the County Board was subsequently reversed by a circuit court. Relations between Ms. Renn and Mr. Kegan eventually deteriorated to the point where Ms. Renn had a trespass warning served on Mr. Kegan and sought to have the state attorney prosecute him for trespass. She was not successful in this. She also sued Mr. Kegan civilly, but eventually she voluntarily dismissed the case. None of the actions taken by Ms. Renn, resulted in Mr. Kegan being disciplined. At some point thereafter, Ms. Renn appeared to be satisfied with her house and the retaliation she had visited upon Mr. Kegan. However, while Ms. Renn was "working on legislation" in Tallahassee, Florida, in 2006, she was asked by a Department attorney to reopen the case. Other than the transcript from the County Board hearing of August 7, 2003, nothing had changed. Every problem she had with the house that should have been ameliorated, had been ameliorated. Nevertheless, she did as asked by the Department attorney, and this case was filed. Ms. Renn sent two letters dated April 3, 2006, and one letter dated April 21, 2006, to the Chief Professions Attorney of the Department. The latter missive was a follow-up to the April 3, 2006, communications. The April 3, 2006, communications are considered complaints as contemplated by Subsection 468.619(4), Florida Statutes (2005). There is no evidence of record that Mr. Kegan was informed of the complaint or that he was permitted 30 days to respond as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005). There is no evidence of record that the Department submitted the complaint regarding Mr. Kegan to a probable cause panel for review as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005), within 180 days. There is no evidence to the contrary, either. In summary, the Department has proven that Mr. Kegan, during 2001 and 2002, caused work to be accomplished at 2407 Winona Avenue, Leesburg, Florida, when he owned the house, as well as after he sold the house to Ms. Renn, and this work was done without proper permits and, on occasion, by persons who had no license when a license was required.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss the Administrative Complaint in the case of Robert Kegan. DONE AND ENTERED this 13th day of January, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 13th day of January, 2009. COPIES FURNISHED: Harry T. Hackney, Esquire Harry Thomas Hackney, P.A. 3900 Lake Center Drive, Suite A1 Mount Dora, Florida 32757 Elizabeth F. Duffy, Esquire Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Eric Neale Anderson, has been a registered building contractor in Florida, at all times relevant to this proceeding with license number RB 0016806. In December, 1983 Respondent entered into a contract with Mrs. Linda Fatzinger, a homeowner in Columbia County, for replacement of a roof. The contract price for the reroofing was $2820. After Respondent completed the reroofing, leaks developed in the new roof which Respondent attempted to fix. Respondent did not correct the leaking roof. Mrs. Fatzinger contracted with another building contractor who did repair her roof and eliminate the leaks for an additional charge of approximately $900. Mrs. Fatzinger's roof was inspected by representatives of the Columbia County Building Department who found violations of portions of the Standard Building Code, as adopted by Columbia County Ordinance 78-1, in the work performed by Respondent. Specifically, Respondent installed shingles on a portion of Mrs. Fatzinger's roof that had a pitch of only 1/2 inch per foot instead of the two inches per foot which is required by Section R-803 of the Standard Building Code when shingles are used. This means that the rise of the roof was only 1/2 inch per running foot which is virtually a flat roof. The manufacturer's packaging of the shingles used by Respondent clearly states that the shingles are for application to roof decks having inclines of not less than two (2) inches per foot. Respondent did not obtain a building permit for this reroofing job, although one was required by Columbia County Ordinance 78-1, and he admits knowing that one was required. In the installation of shingles on Mrs. Fatzinger's roof, it has been deemed admitted that Respondent used an insufficient number of nails. Although four nails per shingle were recommended by the manufacturer and are required by Section R-803, Standard Building Code, for the shingles that were used, in some areas Respondent used only two or three staples per shingle, and did not use any nails. In making the above findings of fact, Petitioner's proposed findings of fact numbered one through four are approved and proposed finding number five is rejected as irrelevant, unnecessary and not based on competent substantial evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license be suspended for a period of three (3) months. DONE and ORDERED this 13th day of March, 1985 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1985. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Eric N. Anderson Route 9, Post Office Box 322 Lake City, Florida 32085 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether disciplinary action should be taken against the Respondent’s registered general and residential contractor’s licenses for violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(j), 489.129(1)(n) and 489.129(1)(o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, the Respondent, Edwin A. Henry, had been licensed by the Department as a registered general contractor and as a registered residential contractor, having been issued license nos. RG 0045112 and RR 0047927, respectively. Moreover, the Respondent was the qualifying agent for Henry Company Homes, Inc. Henry Company Homes, Inc., is a production builder. A production builder builds homes from various standard or generic plans in the hopes of selling those homes at a later time. The homes are not customized in the sense that the plans for a home are drafted with specific home owners' input or for a specific home owner. The pace of production building is generally substantially faster and less expensive than custom home building. Economies in standard materials and use of labor are the reason for the lesser expense. To gain such economies, Henry Company Homes uses the critical path method of construction. The critical path method is a scheduling outline of the time and sequence of work to be done to build a house. The critical path method is an accepted and appropriate construction management technique and the Respondent’s critical path method and times are within the norms of construction techniques accepted in the industry. Respondent was the manager for Henry Company Homes. He did not personally build any of Henry Company’s houses and he did not personally build the houses at issue in this case. Moreover, Respondent was not on-site when these houses were built. Respondent’s role in the company was at least two levels removed from the actual on-site construction of any home. However, the Respondent’s organizational structure and span of management are within the norms accepted in the construction industry. On all homes built by Henry Company, the construction was supervised by a qualified construction supervisor. An assistant supervisor was available to a construction supervisor, should the assigned supervisor need help in overseeing the houses assigned to him. At least one supervisor, Charles Smith, who supervised the construction of the Hornsby house, voiced the standard complaint that he was being overloaded with houses located in different subdivisions and that it was difficult to maintain the production goals established by Henry Homes of completing a house in 10 to 12 weeks. Expert testimony indicated that such a goal was appropriate. Moreover, this complaint seems to be a standard complaint of construction supervisors everywhere and not particularly probative of any of the issues in this case relating to the Respondent. In fact, the Respondent’s supervisory responsibility for his on-site superintendents is within the norms accepted in the construction industry. The pace of construction of Henry Company Homes is the only fact submitted by the Department to demonstrate any knowledge or negligence on the part of the Respondent. No facts specific to the time period or pace of building of the houses involved in this complaint were submitted by the Department. Moreover, Mr. Smith also testified that the Hornsby home met the requirements of the Building Code and he was not aware of any defects in the home. Any other evidence on the issue of knowledge was unconvincing. Okaloosa County adopted the 1994 Southern Standard Building Code on November 15, 1994. Prior to that time the County, on September 21, 1993, had adopted by Ordinance the "current edition of the Southern Standard Building Code, including the appendix." In 1993, the current edition of the Southern Standard Building Code was the 1991 Standard Building Code. In all material respects, the provisions of each edition of the Standard Building Code relevant to this proceeding are the same. In essence, the Standard Building Code establishes minimum standards for the construction of residential homes. However, the Code provides for a high degree of flexibility in its interpretation and application by local building officials. One reason for the flexibility is that it is virtually impossible to construct a building which is totally compliant with the Building Code. Indeed there is a difference between non- compliance with the Building Code and a violation of the Building Code. Before a violation of the code occurs, notice of a deficiency and an opportunity to correct the deficiency must occur. Local building officials may adopt alternative methods of construction as long as those methods are not prohibited by the Building Code and meet the performance standards of the Building Code. No particular procedure is required for the determination of such alternate methods of construction and the building official is free to apply his expertise and knowledge of the local area to establish such alternate methods. The 1994 Standard Building Code provides, in pertinent part, as follows: PREFACE. The purpose of the Standard Building Code is to serve as a comprehensive regulatory document to guide decisions aimed at protecting the public’s life, health and welfare in the built environment. This protection is provided through the adoption and enforcement, by state and local governments, of the performance-based provisions contained herein. The use of performance-based requirements encourages the use of innovative building designs, materials and construction systems while at the same time recognizing the merits of the more traditional materials and systems. This concept promotes maximum flexibility in building design and construction as well as assuring a high degree of life safety. The Standard Building Code incorporates by reference, nationally recognized consensus standards for use in judging the performance of materials and systems. This provides for equal treatment of both innovative and traditional materials and systems, provides for the efficient introduction of new materials into the construction process and assures a high level of consumer protection. * * * 101.3 Code Remedial General. This code is hereby declared to be remedial and shall be construed to secure the beneficial interests and purposes thereof, which are public safety, health and general welfare through structural strength, stability, . . . and safety to life and property from fire and other hazards attributable to the built environment . . . . Quality control of materials and workmanship is not within the purview of this code except as it relates to the purposes stated herein. * * * 101.4 Applicability 101.4.9 Referenced Standards. Standards referenced in the technical codes shall be considered an integral part of the codes . . . . Permissive and advisory provisions in a standard shall not be construed as mandatory. * * * POWERS AND DUTIES OF THE BUILDING OFFICIAL General. The Building Official is hereby authorized and directed to enforce the provisions of this code. The building official is further authorized to render interpretations of this code, which are consistent with its spirit and purpose. (Emphasis supplied) * * * Requirements Not Covered By Code Any requirements necessary for the strength, stability . . . or for the public safety, health and general welfare, not specifically covered by this or other technical codes, shall be determined by the building official. Alternate Materials and Methods The provisions of the technical codes are not intended to prevent the use of material or method of construction not specifically prescribed by them, provided any such alternate has been reviewed by the building official. . . . . Examinations of Documents Plan Review. The building Official shall examine or cause to be examined each application for permit and the accompanying documents, consisting of drawings, specifications, computations and additional data and shall ascertain . . . whether the construction indicated and described is in accordance with the technical codes . . . . Affidavits. The building official may accept sworn affidavits from a registered architect or engineer stating the plans submitted conform to the technical codes. . . . 105. INSPECTIONS * * * * * * 105.4 Inspections Prior to Issuance of Certificate of Occupancy or Completion The Building official shall inspect . . . at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building . . . prior to the issuance of the Certificate of Occupancy or Completion. * * * 105.6 Required Inspections The building official upon notification from the permit holder or his agent shall make the following inspections . . . and shall either release that portion of the construction or shall notify the permit holder or his agent of any violations which must be corrected in order to comply with the technical codes: Building Foundation Inspection: To be made after trenches are excavated and forms erected. Frame Inspection: To be made after the roof, all framing, fireblocking and bracing is in place . . . Final Inspection: To be made after the building is completed and ready for occupancy. * * * 202. DEFINITIONS GRADE-a reference plane representing the average of finished ground level adjoining the building at all exterior walls. . . . . * * * 1804. FOOTINGS AND FOUNDATIONS 1804.1 General 1804.1.1 Foundations shall be built on undisturbed soil or properly compacted fill material. . . . * * * 1804.1.3 The bottom of foundations shall extend . . . no less than 12 inches (305 mm) below finish grade. (Emphasis supplied) * * * 1804.18 The area under footings, foundations, and concrete slabs on grade shall have all vegetation, stumps, roots, and foreign materials removed prior to their construction. . . . * * * 1804.4 Footing Design * * * 1804.4.2 Footings shall be proportioned to sustain the applied loads and induced reactions without exceeding the allowable stresses specified in this code. * * * 1906.4 Depositing 1906.4.5 After concreting has started, it shall be carried on as a continuous operation until placing a panel or section, . . . is completed except as permitted or prohibited by 1907.4. * * * 1907.4 Construction Joints * * * 1907.4.3 Construction joints shall be so made and located as not to impair the strength of the structure. Provision shall be made for transfer of shear and other forces through construction joints. * * * 2111. MASONRY CONSTRUCTION * * * 2111.1.3 Weepholes. Weepholes shall be provided in masonry veneer . . . at a maximum spacing of 4 ft (1219 mm) on center by omitting mortar in the head joints. Weepholes shall be located in the first course above the foundation wall or slab . . . . 2111.1.4 Installation of Wall Ties. The ends of wall ties shall be embedded in mortar joints. Wall tie ends shall engage outer face shells of hollow units by at least 1/2 inch (12.7 mm). . . . * * * 203.1.2 The detailed structural requirements contained in this chapter are based on sound engineering principles. . . . * * * 2301.2 Design 2301.2.1 The quality and design of wood members and their fastenings used for load supporting purposes shall conform to good engineering practices. 2301.2.1 All members shall be framed, anchored, tied and braced so as to develop the strength and rigidity necessary for the purposes for which they are used. 2301.2.1 Preparation, fabrication and installation of wood members and the glues, connectors, and mechanical devices for the fastening thereof shall conform to good engineering practices. * * * 2306. FASTENINGS 2306.1 Nailing and Stapling Requirements. The number and size of nails or staples connecting wood members shall not be less than those specified in Table 2306.1. . . . 2306.2 Other Fastenings. Where framing anchors, clips, staples, glues or other methods of fastening are used, they shall be labeled, listed and installed in accordance with their listing. * * * 2308. VERTICAL FRAMING 2308.1 Exterior Wall Framing 2308.1.1. Studs in one and two story buildings shall not be less than 2x4 with the wide face perpendicular to wall. . . . * * * 2308.1.1 Heights listed in 2308.1.1 are distances between points of horizontal lateral support placed perpendicular to the plane of the wall. Heights may be increased where justified by analysis. * * * 2308.1.5 Studs shall be capped with double top plates installed to provide overlapping at corners and at intersections with bearing partitions. End joints in double top plates shall be offset at least 24 inches (610 mm). In lieu of double top plates, a continuous header may be used. . . . 2308.1.5 Studs shall have full bearing on a plate or sill of not less than 2 inch nominal thickness and having a width at least equal to the width of the studs. * * * 2308.5 Interior bearing Partitions 2308.5.1 The provisions of 2308.1.1, 2308.1.2, 2308.1.3 and 2308.1.4 shall apply to interior bearing partitions supporting more than a ceiling under an attic with no storage. * * * 2308.5 Interior Nonbearing Partitions 2308.5.1 Framing for nonbearing partitions shall be of adequate size and spacing to support the finish applied. . . . * * * 2309. ROOF AND CEILING FRAMING 2309.1 Ceiling Joists and Rafter Framing * * * 2309.1.3 Ceiling joists and rafters shall be nailed to each other where possible . . . . * * * 2309.1 Trussed Rafters * * * 2309.1.3 The bracing of metal plate connected wood trusses shall comply to their appropriate engineered design. In the absence of specific bracing requirements, trusses shall be braced in accordance with the Truss Plate Institute’s "Handling, Installing and Bracing Metal Plate Connected Wood Trusses, HIB-91." * * * 2309.1 Roof Sheathing 2309.1 All rafters and roof joists shall be covered with one of the following Materials: * * * 4. Particleboard applied in accordance with the provisions of Table 2309.3B and nailed in accordance with Table 2306.1. * * * Table 2306.1 provides that roof sheathing of the type used in the houses involved in this case be nailed 6 inches on center at the edges and 12 inches on center intermediate. The Administrative Complaint alleges the following Building Code violations as the sole basis for the proposed disciplinary action against the Respondent in relation to both the Hornsby and Anthony houses: Foundation does not extend at least 12 inches below finished grade; Foundation is deficient as to form; Stub trusses are not anchored to the interior weight bearing wall; Stub trusses are not adequately cross braced; Brick veneer is not adequately anchored to the interior sheathing or studs to safely resist wind loads; and As to the Hornsby house, the roof sheathing is not attached to resist wind load requirements in the code. The construction of the Hornsby residence was permitted by Okaloosa County, Florida, on June 2, 1994. At the time the Hornsby permit was issued, Okaloosa County was not reviewing building plans for compliance with wind load requirements of the Building Code or inspecting properties for compliance with wind load requirements of the Building Code. The construction of the Anthony residence was duly permitted by Okaloosa County, Florida, on June 6, 1996. At the time the permit was issued, Okaloosa County was reviewing building plans for compliance with wind load requirements of the Building Code. The plans for the Anthony residence passed that review by the Okaloosa County Building Department. The Hornsby and Anthony homes are wood-frame houses built on monolithic concrete slabs. They have a hip roof. The exterior walls are covered by brick veneer anchored with standard brick ties. Both houses have brick veneer which moves with the application of strong hand pressure to the top part of the veneer. The deflection on one wall of the Hornsby house is at least 1 inch. The deflection on the remainder of the Hornsby house and all of the Anthony house is slight and within general engineering perimeters. Both houses have been through at least two major hurricanes since they were built. Both hurricanes had winds in excess of any wind load requirements. Neither house sustained significant damage from either hurricane. There was no evidence submitted, through appropriate calculations, that the houses involved in this case did not meet the performance criteria of the Building Code. To the contrary, there is evidence that these houses do meet the performance requirements of the Building Code since they have survived at least two major hurricanes without sustaining the type damage these performance tests were designed to prevent. The Respondent requested and the Okaloosa County Building Department (Okaloosa County) conducted all required inspections of the Hornsby and Anthony residences. One deficiency, not at issue here, was noted by Okaloosa County during construction of the Hornsby house and was promptly repaired by the Respondent to the satisfaction of the local building official. No deficiencies were noted by Okaloosa County during any of the inspections of the Anthony house. A Certificate of Occupancy (Certificate) was issued by Okaloosa County for the Hornsby house on March 14, 1995. The Certificate certified to the Respondent that the Hornsby residence was constructed in accordance with the applicable Building Code. Hayward Hornsby purchased the house within several weeks after the Certificate was issued and after one walk-through of the house. However, shortly after moving in, Mr. Hornsby noticed that large portions of the ceiling drywall were sagging or wavy. The view of the property corroborated the condition of portions of the Hornsby ceiling, but, the ceiling is not unsightly; the waviness in the Hornsby ceiling can be traced to an unlevel foundation. However, the waviness does not appear to be the result of any code violation on the Respondent’s part, but is one of workmanship. After seeing the wavy ceiling, Mr. Hornsby has never been happy with his house. A Certificate on the Anthony house was issued by Okaloosa County on December 9, 1995. The Certificate certified to the Respondent that the Anthony residence was constructed in accordance with the applicable Building Code. Mr. Anthony, to this day, is happy with his home and has never complained to the Department about his home. It was Mr. Hornsby who directed the Department to Mr. Anthony’s home. As indicated, the applicable Building Code requires that the foundation extend at least 12 inches below finished grade. Section 1804.1.3, Standard Building Code, 1994. The foundation in the Hornsby and Anthony residences clearly met this Building Code requirement. Additionally, the view of each property demonstrated that the foundation met the Building Code requirement for depth. The Department’s expert testified that the correct measurement for determining the depth of the foundation below finished grade was from the bottom of the foundation to the bottom of the brick shelf. That is not the correct measurement for determining compliance with the Building Code. The correct measurement is from the bottom of the foundation to the top of the finished grade. The closest estimate of the original finished grade for both houses was the soil stain on the brick wall. Even after the Administrative Complaint was filed, the Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the depth of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the foundation be sufficient to carry the load of the structure. Section 1804.4.2, Standard Building Code, 1994. The Department’s experts have testified that they had not performed any tests or calculations to determine whether the Hornsby or Anthony foundations are sufficient to carry the load of the structure. Importantly, nowhere in the Building Code is it required that walls be plumb or that foundations be level or shaped a certain way. One reason for this omission is that the materials and environmental conditions involved in construction are flexible and unpredictable, making mathematical and geometric precision impossible. Therefore, the soundness of a wall or a foundation under the Building Code is determined by using the various formulas for loads, wind, etc. Misshaped or unlevel foundations, or unplumb walls are not, by themselves, violations of the Building Code. Such construction is involved more in the quality of workmanship than in any code violations. The view of the Hornsby and Anthony residences conducted by the Administrative Law Judge failed to disclose any facts which support the allegation in the Administrative Complaint as to the form of the foundation. Moreover, the Complaint alleges that Mr. Anthony had cracked bricks as the result of the insufficient foundation. No cracked bricks were observed during the view of the Anthony residence. The Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the form of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. On both the Hornsby and Anthony houses, the stub trusses were not anchored to the interior weight-bearing wall. Stub trusses are the blunt nosed trusses on a hip roof which intersect the main roof of a house and run under the main roof of a house forming a "T"-like structure. In this case, the blunt end of the stub trusses rested on an interior load-bearing wall. The other end of the stub trusses rested on an exterior load- bearing wall. The part of the trusses on the exterior load- bearing wall were properly anchored. When the Hornsby residence was permitted, Okaloosa County was not reviewing plans for compliance with the wind load requirements of the Building Code. Plans review did not begin in Okaloosa County until July 1, 1994. Such review did occur with the Anthony house. Indeed, at the time both houses were built, there was a great deal of confusion within the building community as well as Okaloosa County regarding how to comply with wind load requirements of the Building Code. When the Hornsby and Anthony houses were constructed, neither the builder nor Okaloosa County knew that the prescriptive method for wind load requirements (SSTD 10-93) required the stub trusses to be anchored to an interior weight-bearing wall because the intersecting main roof covers that part of the stub trusses. It was clear the end of the trusses resting on an exterior weight-bearing wall had to be anchored. The Respondent built both houses consistent with the interpretation and enforcement of the Building Code by the local building official and consistent with local building practices in the area. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence and confirmed that the stub trusses were not anchored properly as required by the wind load requirements of the local Building Code. In response to this finding (and consistent with established industry standards), the Respondent employed an engineer to design an appropriate anchoring mechanism for this condition. The engineer’s design was approved by Okaloosa County and properly installed by the Respondent as an alternate method of construction. Okaloosa County inspected the work and cleared the code deficiency. Based on the confusion by both contractors and local building officials regarding the wind load requirement of the Building Code at the time the Hornsby and Anthony residences were constructed, this technical Building Code deficiency was not a knowing violation by the Respondent. No evidence was presented by the Department that the Respondent had any personal knowledge of the existence of this condition prior to the filing of the Administrative Complaint. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the stub trusses be braced in accordance with the engineered truss drawings. At the time the Department made this allegation, its experts had not reviewed the engineered truss drawings. Based on observations at the viewing of the Hornsby residence, the bracing for the stub trusses in the Hornsby residence substantially met this Building Code requirement. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence. The Okaloosa County Building Official did not find any Building Code violations with respect to the cross-bracing of the trusses. He did note the bracing was light. Based on the view conducted by the Administrative Law Judge, the stub trusses did not have the required amount of bracing. The bracing which was in place was spaced too far apart by about 1 foot on the middle set of stub trusses. This spacing does not appear to be material and no calculations were completed to demonstrate that the bracing in place was inadequate or negligent construction. Moreover, no knowledge or negligence is attributable to the Respondent since he was unaware of the deficiency and the local building inspector passed the bracing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. When the brick veneer was removed on the end of the Hornsby residence, it was shown that all of the brick ties were installed into the interior sheathing or wall studs. Okaloosa County requires that the framers, not the brick masons, install the brick ties. The brick ties that were imbedded in the brick were properly installed, consistent with local construction practices in Okaloosa County. The failure of the brick masons to use the top row of brick ties is not a condition that the contractor knew about or reasonably could have known about, even with adequate supervision. The Hornsby and Anthony residences passed a brick tie inspection, the inspection which tells the contractor that the brick ties are properly installed and spaced. The failure to use the brick ties on the top row did not cause the excessive movement in the brick veneer of the Hornsby house. Due to the method of installation of Okaloosa County, it was impossible to use those ties on the soldier or top course of the brick wall. Indeed, the Department has failed to prove that the excess movement in the brick veneer of the Hornsby house even existed at the time the Certificate was issued on the Hornsby residence. The movement in the brick was caused by a break in the bond between the brick and the mortar in the tenth course from the top of the wall. It is impossible to know when or why that break occurred. However, Mr. Hornsby’s first report of brick movement to Okaloosa County was after the second hurricane hit Okaloosa County in 1995. The break in the bond could have been caused by the hurricanes or some other external force unrelated to the installation of the brick at the time the house was built. Although the Department’s expert testified that the brick veneer at the Anthony residence had the same movement as the brick in the Hornsby residence that conclusion had no factual foundation. The inspection by the Okaloosa County Building Inspector failed to disclose any excess movement in the brick veneer. A licensed engineer and contractor observed only the slightest movement in the veneer, all of which was within normal tolerances. Most importantly, no excess movement of the veneer was observed during the view. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. The Building Code requires roof sheathing to be nailed 6 inches on center at the edges and 12 inches on center intermediate. Table 1206.1, Standard Building Code, 1994. The Department’s experts did not agree as to the number and severity of locations where nails in the roof sheathing missed the roof trusses. Based on the view of the Hornsby residence, there were some missed nails in the roof sheathing which allowed one section of sheathing to be lifted with hand pressure. The extent of the missed nails was very small compared to the number of nails contained in a roof on an average size house. All of the testimony supports the conclusion that the frequency and severity of this condition was not material. The number of "missed" nails was not a material deficiency and has not affected the performance or safety of the roof system. The deficiency is easily correctable. The concept that a few missed nails are a code violation that would support discipline of a contractor is not consistent with industry practice. Moreover, the record is void of any evidence that the Respondent had knowledge of this condition or that this condition was the product of a lack of supervision by the Respondent or even negligence attributable to the Respondent. To the contrary, the Hornsby residence passed a framing inspection, which included an inspection of the nailing in the roof sheathing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. Moreover, after Mr. Hornsby complained about defects or problems in his home, he consistently denied access to the Respondent for the purpose of effecting repairs. In general Okaloosa County requires that a contractor be allowed an opportunity to fix a code deficiency before it considers a deficiency to be a violation of the Building Code. This interpretation of the Building Code by the agency responsible for its interpretation and enforcement is reasonable. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Hornsby residence, if any. Since the Respondent was not allowed such opportunity in relation to the Hornsby house, there is no code violation which the Respondent was aware of. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Anthony residence, if any, and was allowed to do so in at least one instance. Finally, on both the Anthony an Hornsby houses, the evidence failed to demonstrate that the Respondent’s supervisors were unqualified or failed to supervise the subcontractors underneath them or that the Respondent had specific personal knowledge of a supervisor’s failure to supervise. Likewise, the evidence did not demonstrate that the subcontractors were unqualified or that the Respondent had specific personal knowledge that a subcontractor was unqualified or performed in a negligent manner. Without such specific and personal knowledge on the part of the Respondent, none of the charges contained in the Administrative Complaint can be attributed to the Respondent. Therefore the Department has failed to establish that Respondent is guilty of violating Chapter 489, Florida Statutes. The construction of the residences at 102, 106, and 107 Louise Drive and 420 Jillian Drive were duly permitted by the City of Crestview, Florida. All of these houses were incomplete at the time of the inspection by the Department’s experts. The Department offered very little evidence in support of the allegations relating to these unfinished houses. On most of the houses the Respondent had not called for an inspection of the work the Department alleged was a violation. If the contractor has not called for an inspection of a particular phase of the work on unfinished houses, then the condition of that work by itself cannot support an alleged Building Code violation. In like regard, if the contractor calls for an inspection, and a deficiency is noted and the contractor corrects the deficiency to the satisfaction of the building official, then no code violation exists. All of the allegations regarding the incomplete houses fail for one of these two reasons. On all the unfinished houses the Department alleged that the foundation did not extend at least 12 inches below grade. Again proper measurement to determine the depth of a foundation is based on the finished grade. See Section 1804.1.3, Standard Building Code, 1994. At the time each of these homes was inspected by the Department and its experts, finished grade had not been established. Therefore, there is no factual basis for this allegation in the Administrative Complaint and the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise Drive the Department alleged that the brick ties were not properly spaced. At the time of the inspection by the Department and its experts, the Respondent had not called for a framing inspection. Nor was there any evidence that the construction supervisor of the home had accepted the brick tie placement. Accordingly, the spacing of the brick ties could not be the basis of an alleged violation. Indeed, The Department’s expert agreed that this was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 106 Louise Drive the Department alleged that the drywall was improperly nailed. At the time of the inspection by the Department and its experts, the drywall was being installed. No observations were made after the drywall installation was completed to determine the final nailing pattern. The Department’s expert agreed that the condition he observed (which was the basis for the allegation in the Administrative Complaint) was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Also at 106 Louise Drive the Department alleged that the joint offset spacing in the top plate is less than 24 inches apart. At the time of the inspection by the Department and its experts, the Respondent had not called for the framing inspection on this house. The evidence further shows that the issue of the joint offset that was observed during the framing inspection, was noted by the building inspector as an exception, was corrected by the Respondent to the satisfaction of the local building official and was passed by the local building official. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102, 106, and 107 Louise and 420 Jillian the Department alleged that the girder trusses were not anchored. The Department offered no evidence on this issue. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise the Department alleged that the exterior sheathing was not properly nailed. The Department offered no evidence regarding this condition at 102 Louise Drive. At the time of the inspection by the Department and its experts of 107 Louise Drive, the Respondent had not called for a framing inspection. The local building official conducted a framing inspection on both houses. Both houses passed the framing inspection. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Additionally, on all the unfinished houses, the Respondent requested and the City of Crestview conducted all required inspections of these houses. No deficiencies were noted by the City of Crestview Building Department during any of those inspections other than the joint offset at 106 Louise Drive. A Certificate was issued by the City of Crestview on each of these houses. The Certificate certified to the Respondent that these houses were constructed in accordance with the applicable Building Code. As with the Hornsby and Anthony house, even if code violations had been established, the evidence is insufficient to establish that the Respondent knowingly committed any code violations with respect to the properties remaining in these two Administrative Complaints. Likewise, the evidence is insufficient to independently establish that the Respondent committed negligence, incompetency, or misconduct in the practice of contracting. The evidence fails to establish that the Respondent deviated from the applicable standard of care. The evidence did not show that the Respondent relied on unqualified supervisors or subcontractors or that he specifically and personally knew of such. The Respondent is entitled to rely on such qualified personnel. Without such evidence the misconduct charged in the Administrative Complaint cannot be attributed to the Respondent. Moreover, the evidence independently establishes that the Respondent had adequate systems and safeguards in place for supervision of his personnel, and adequately supervised the work on the job sites in question through such qualified construction supervisors. Finally, prior to the commencement of the formal hearing in this matter, the local competency boards for the appropriate jurisdictions disposed of those matters involving the following properties in favor of the Respondent: the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki. The undisputed evidence, in the form of an Affidavit from the Respondent, establishes that the residence allegedly located at 1894 Alfred Boulevard in Navarre, Florida, did not exist; this fact was unopposed by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent not guilty of any of the counts in either of the Administrative Complaints. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 David L. McGee, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Charles T. Wiggins, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Neil H. Butler, Esquire Butler & Dudley 310 East College Avenue Tallahassee, Florida 32301 Gregory D. Smith, Esquire Gregory D. Smith, P.A. 201 South Baylen Street Suite A Pensacola, Florida 32501 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32311-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
