The Issue Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.
Findings Of Fact Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633). By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows: The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. 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 21st day of April, 1999.
Findings Of Fact Harold E. Herman was terminated from his job as General Building Inspector with Pasco County in 1983. At the time of his dismissal he was 58 years old. Herman had worked as a Building Inspector in the Pasco County Building Inspection Department for approximately ten years. He was Chief Building Inspector until his demotion to General Inspector in 1982. Joseph T. Rachel was terminated from his job as General Building Inspector with Pasco County at the same time or about the same time Herman was dismissed. Both Herman and Rachel had been hired by the Pasco County Building Department at the same time (Exhibit 2). At the time of his termination Rachel was 61 years old and in good health. No evidence was presented that either Petitioner was physically unable to adequately carry out the duties of a building inspector. Both Herman and Rachel were combined inspectors deemed qualified to inspect construction and mechanical on residential construction. On commercial construction combined inspectors are not used and each inspector inspects only the construction aspect for which he is primarily qualified such as plumbing, electrical, construction, etc. At or about the same time these Petitioners were dismissed another inspector, Connell, was also terminated. Connell was 36 years old at the time of his dismissal (Exhibit 2). Subsequent to the dismissal of these two Petitioners seven people have been hired by the Pasco County Building Department ranging in age at the time of hiring from 47 to 63 years old (Exhibit 1). Only one employee in this department is less than 40 years old and the average age of Pasco County Building Inspectors is in the mid-50's. In the summer of 1983 the manager of the Dade City building office received complaints from owners of recently built homes in a subdivision known as Southlake near Land O'Lakes. Twenty-one of these houses were subsequently reinspected by a different inspector in the building department and code violations were found on 17 of the homes inspected. The violations ranged from improperly installed tie-downs to removal of strength members in framing and trusses. Seven of the homes in which code violations were found were inspected by Rachel and two were inspected by Herman. Others presumably were inspected by Connell, who was fired as the result of this same investigation. Petitioners attempted to show that the persons conducting the investigations of code violations were not competent building inspectors and that code violations were overlooked on other homes. This evidence is not relevant to these proceedings as it is not related to Petitioners' ages.
Findings Of Fact Respondent, Albert J. Ruocco, is licensed as a registered building contractor in the State of Florida, holding license number RB00030112. His last address in the Department's file is 604 Citrus Court, Melbourne Beach, Florida 32951. Sometime prior to the date of the administrative complaint, the Department received a complaint from Mrs. Dale Normington that Ruocco told her he had obtained a termite treatment for the addition he constructed on her home, but that no treatment was done. DPR investigator, John Allen, told Mrs. Normington to send her back-up information. John Allen received in the mail a copy of the purported contract between the Normingtons and Rivers Edge Construction Company, Inc., Ruocco's Company. He also received a series of cancelled checks and a copy of a letter purportedly sent by the Normingtons to Albert Ruocco. John Allen checked the Department's licensing files and obtained the licensing information on Ruocco. He also personally served the Administrative Complaint on Ruocco, but did not, to the best of his recollection, discuss the complaint with him or have any other contact with him. Ruocco never responded to any investigative correspondence. Douglas Vanderpoest, owner of Slug-A-Bug, a pest control company, established that his company never treated the addition to the Normington resident. Brevard County Building Inspector, Howard Stott, knows Albert Ruocco and is familiar with the addition Ruocco installed for the Normingtons in 1985. A permit was obtained and Stott performed three inspections, including the slab, pre-lath and final on the addition. Brevard County requires evidence of termite treatment of soil for any new construction or modifications to an existing structure. The practice is usually for the inspector to require a receipt or evidence of treatment prior to approving the slab. Stott does not remember whether he required the evidence on the Normington job. The permit in those days did not have a space to indicate the termite treatment. However, Stott did approve the slab, as noted on the permit.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Administrative Complaint dated November 2, 1987, be dismissed. DONE and RECOMMENDED this 20th day of May, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Albert J. Ruocco 604 Citrus Court Melbourne Beach, Florida 32951 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact William W. Carlton, Respondent, is licensed in Florida as a building contractor, holds license No. CB CO 10455, and was so licensed at all times here relevant (Exhibit 1) In February, 1980, Hays and Sons Construction Company (Hays) entered into a contract with Ken and Ethel Moore to construct a metal building to serve as a filling station and car repair facility in Spring Hill. Hays is not licensed as a building contractor in Florida and Respondent held no office in Hays, had no authority to make management decisions on behalf of Hays, contract on behalf of Hays, or hire subcontractors for Hays. The building permit for the construction of the Spring Hill filling station was pulled by Respondent and listed Respondent as builder (Exhibit 9). Respondent did interior woodwork in the building, room layouts, etc., while Hays hired all of his subcontractors and did the overall supervision of the work. Respondent testified that he visited the site frequently, usually after working hours, to see that the project was progressing properly. Dan Hays, principal in Hays and Sons Construction Company, is a capable builder of metal buildings and, although not licensed in Florida, has erected such buildings at numerous places in the United States. Hays hired and paid the subcontractors on this project. By letter dated November 11, 1980, Moore filed a complaint with the Hernando County Building Department alleging that his building had not `been completed according to plans and specifications, some subcontractors had not been paid, that Hays was not licensed and the permit was pulled by Carlson, and that Carlson denies responsibility for the completion of the work. A hearing was scheduled by the Construction Board of Examiners on this complaint and Respondent was notified of the time and place of hearing and advised to be present. Before the scheduled date of the hearing, the issues raised in the complaint had been settled and the complaint withdrawn by the complainant. Respondent called the Building Department respecting the necessity of him attending the scheduled hearing and was advised the complaint had been withdrawn and that he need not attend. At the scheduled hearing, the Board expected Respondent to give an explanation and, when Respondent did not show, the Board suspended his privilege of pulling permits until he appeared before the Board at its next scheduled meeting. Respondent appeared at the next scheduled meeting of the Board and his permit pulling authority was reinstated. On April 29, 1981, Hays entered into a contract to construct a steel building for Harold and Evelyn Walkowz in New Port Richey, Florida, at a price of $119,000. The building permit for this job was pulled July 28, 1981, by William Carlson as contractor (Exhibit 10). After construction commenced, the contract was assigned to Respondent (Exhibit 12) Walkowz initially made payments in accordance with the draw schedule but as the contract progressed disputes between the owner and the builder developed and payments were not made on schedule. Walkowz' brother-in-law, John Smith, put up most of the money for the building and arrived on the scene when the project was about half finished. His arrival coincided with the disputes regarding the work being done, with the subcontractors and with the Respondent. Several of the subcontractors' due payment were not paid by Respondent because the payment due from the owners was not received by Respondent. Some of these subcontractors left the job, other threatened to leave and were assured by the owners that they would be paid, while another group of subcontractors were paid by the owners to keep them from leaving. Prior to paying these three subcontractors (Exhibit 15) , Walkowz' attorney prepared Exhibit 13, which Respondent signed in order to get these subcontractors paid. After Walkowz had paid some $93,000 to Respondent (and Hays), further payments were stopped. At this time, sub- contractors were owed approximately $16,000 and the building was not completed. Respondent offered to complete the building if the balance of the contract price owed was placed in escrow (Exhibit 20). Walkowz refused to place the money in escrow, did not pay the subcontractors he had promised would be paid, used the funds still owed on the contract to complete the building, charged Respondent with wrongfully appropriating his money, and complained to the building department. Criminal charges of grand theft were brought against Respondent. At a hearing on these charges, Respondent pleaded nolo contendere, adjudication was withheld, and Respondent was placed on probation for five years. After a hearing on restitution, the court directed no restitution be paid by Respondent to Walkowz. Respondent maintained only one operating account into which he intermingled funds received on building contracts concurrently in progress. No evidence was submitted that Respondent diverted funds received from Walkowz to any other specific project. Testimony of one witness that Respondent said he diverted funds received from Walkowz to other projects was denied by Respondent. Further, no evidence was presented that because of the diversion of funds Respondent was unable to complete the Walkowz project. In installing the main air conditioner, the unit was located at a place slightly different than shown on the approved plan. Similarly, a wall was moved a few inches to cover an error made in the installation of plumbing lines. These changes were made with the knowledge and consent of the owner and while inspections of the work were being conducted by officials of the Pasco County Building Department. The contract provided for laying 1,350 cubic yards of black top one inch thick over a four-inch limerock base. Building codes and zoning requirements would not authorize the paving of an area this size on the property and, to comply with the code prescribed allowable impervious area requirements, less black top was used. Similarly, the contract provided for the slab on which the building was erected to be 3,000 psi. concrete. The concrete was routinely tested, with the results received after the building was erected. The test showed the concrete to be 2,500 psi. strength. This information was made known to the owner and, in lieu of tearing down the building and repouring the slab, allowances were made for other changes in the contract requested by the owner For a short period of time a company called Carobu appeared on a sign in front of the Walkowz construction site. This was the trio comprised of Carlton, Roth and Burns, who intended to contract under that name, with Carlson as qualifying officer. The company was never incorporated nor did it ever contract to do any construction work.
Findings Of Fact The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), is the state agency charged with regulating the construction industry in Florida. Kerry D. Webster, Respondent herein, is a certified building contractor having been issued license number CB-C028116 and was so licensed during times material hereto. During times material hereto, Respondent was the sole qualifying agent for Alexander Green Company. On April 26, 1988, Respondent was disciplined by the Hernando County Building Department at a disciplinary hearing which Respondent attended. The Hernando County disciplinary proceeding case was prepared by Rose Mattingly, an employee of the Hernando County Building Department whose duties include preparation of cases to be heard by the Board and that case was presented by Jim Fredricks, license inspector of the Hernando County Building Department. Respondent was charged with and found guilty of failing to make proper payment to materialmen, subcontractors, and laborers in connection with construction work; employment of persons who do not possess the required county and/or state licenses in their respective vocation or trade; willful and deliberate disregard and violation of the prevailing regulations and laws of Hernando County; negligence, incompetency or misconduct while engaged in the business of acting in the capacity of a contractor; and violating other provisions of the Hernando County building code, rules and regulations. Hernando County received thirteen (13) complaints respecting liens against Respondent in the total amount of approximately $47,000 covering dates from April 19, 1987 through April, 1988. (Petitioner's exhibit 4). In addition, Respondent had also been the subject of earlier claims of lien filed by suppliers and subcontractors in the approximate amount of $82,960.99. (Petitioner's Exhibit 1). Respondent acknowledged that, as the sole qualifying agent for Alexander Green Company, he is responsible for the contracting activities of that company. The above disciplinary action stemmed from Respondent's contracting activities through Alexander Green Company. Based on the disciplinary action by the Hernando County Building Department, Respondent's permitting privileges were suspended for six months effective 8:00 a.m. on April 28, 1988. In mitigation, Respondent had a difficult time obtaining draws from work that he completed for Alexander Green. Respondent is making arrangements to repay some subcontractors who have not been paid. However, Respondent failed to demonstrate that he has made any attempt to repay or to otherwise defray the losses sustained by his customers. In this regard, Hernando County attempted to amicably resolve complaints that it received against Respondent prior to initiating formal disciplinary proceedings, to no avail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that: Petitioner enter a final order placing Respondent's certified building contractor's license on probation for a period of five (5) years. Respondent pay an administrative fine of $1,000, which amount shall be payable to Petitioner within 30 days of entry of the final order. 1/ DONE and ORDERED this 31st day of July, 1989 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of July, 1989.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
