The Issue The issues in this case are whether Respondent, August T. Nocella, committed the violations alleged in the Administrative Complaint and, if so, what discipline is appropriate.
Findings Of Fact Petitioner, the Pinellas County Construction Licensing Board (Board), is the agency within Pinellas County, Florida, authorized under Chapter 89-504, Laws of Florida, as amended, to regulate and discipline the licenses of, among others, certified aluminum contractors. Respondent, August T. Nocella (Respondent), is, and has been at all times material hereto, a certified aluminum contractor in Pinellas County, Florida, having been issued license C-3197. At times relevant to this proceeding, Respondent was doing business as Allied Aluminum, located in St. Petersburg, Florida. In 1997, Ms. Mary J. Pugh had a small screened porch added to her house located at 12855 Gorda Circle West. Approximately two years later, in July 1999, the porch was damaged or destroyed by a storm. Thereafter, Ms. Pugh requested and received a proposal from Allied Aluminum to repair or rebuild the screened porch. On September 1, 1999, Respondent entered into a contract with Ms. Pugh to repair or reconstruct the previously existing screened porch. The contract provided that Respondent would install a new aluminum roof to replace the damaged existing screened porch roof, install gutters and trim, replace 13 feet of valance, replace the screen, and install a new wall front. The contract noted that a riser wall was required for "proper roof pitch." The contract price was $2,300.00, with $1,000.00 to be paid as a down payment and the remaining $1,300.00 to be paid upon completion of the project. Ms. Pugh paid Allied Aluminum in accordance with the terms of the contract. She made the first payment of $1,000.00 on September 1, 1999, and made the final payment of $1,300.00 on September 22, 1999, upon Respondent's completing the job. On or about September 16, 1999, Respondent obtained a permit for the repair or reconstruction of the screened porch at Ms. Pugh's house. Respondent began the project on or about September 15, 1999, and completed the job on September 22, 1999. Section 105.6 of the Standard Building Code, 1997 Edition, as amended,(Standard Building Code) requires local building officials, "upon notification from the permit holder or his agent," to make a final inspection of a building after the building is completed and ready for occupancy. In order to comply with the Standard Building Code, it was the responsibility of the permit holder, in this case, Respondent, to call local officials for a final building inspection. Upon completion of the inspection, a building official would then notify the permit holder of "any violations which must be corrected in order to comply with the technical codes." Respondent failed to notify building officials that the Pugh project was completed and ready for occupancy and, thus, ready for final inspection by appropriate building officials. As a result of Respondent's failure to call for a final inspection, building officials never inspected Respondent's work on Ms. Pugh's screened porch and made no determination as to whether the project complied with the applicable technical codes. In July 2000, during a storm, the roof of Ms. Pugh's screen porch collapsed. Relying on statements of unnamed contractors, Ms. Pugh believes that the roof collapsed because it did not have the proper pitch. Respondent attributes the collapse of the roof to the gutters being blocked with leaves. Despite these assertions no evidence was presented at hearing to establish the cause of the roof's collapsing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a final order: (1) finding that Respondent failed to obtain a satisfactory inspection as alleged in Count One, and is guilty of the offenses described in Chapter 89-504, Subsections 24, (2)(d), (j), and (n), Laws of Florida; (2) imposing an administrative fine of $1,000.00 for the foregoing offenses; and (3) dismissing Count Two of the Administrative Complaint. DONE AND ENTERED this 28th day of December, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of December, 2001. COPIES FURNISHED: Don Crowell, Esquire Pinellas County Construction Licensing Board 310 Court Street Clearwater, Florida 33756 Rodney S. Fischer, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 August T. Nocella 1017 Robinson Drive, North St. Petersburg, Florida 33710
The Issue This case arises on an amended administrative complaint filed by the Petitioner which seeks to have Respondent's contractor licenses disciplined for alleged violations of Chapter 489, Florida Statutes, incident to the construction of a residence near Melrose, Florida. The case originally was scheduled to be heard on July 10, 1987, but after the hearing was convened, Respondent's counsel sought a continuance based on Respondent's health problems which were supported by a doctor's statement. The motion was granted and the hearing was continued until August 25, 1987. At the hearing, Petitioner presented the testimony of Evans Starke, Marion Uhl, and Robert H. Adams. Petitioner submitted eight exhibits in evidence, including the depositions of Respondent and Matthew M. Gordon. Respondent testified in his own behalf and submitted three exhibits in evidence. However, Respondent's exhibit three, which was a house plan, was retained by Respondent and a copy thereof was to be filed within 10 days after the hearing. Additionally, Respondent was provided a period of 10 days after the hearing to submit a deposition of James A. Taylor However, the deposition was not filed within the required period nor was Respondent's exhibit three. Respondent's post-hearing motion to extend the time for filing the deposition was denied. The parties were provided a period of ten days from the filing of the hearing transcript in which to file proposed recommended orders. Neither party made a timely submission. However, Respondent's post-hearing motion to extend the time period was granted. The proposed Findings of Facts submitted by both parties were considered and substantially incorporated herein.
Findings Of Fact Respondent Joseph Rentz is licensed as a registered building contractor, roofing contractor, and mechanical contractor, and was so licensed at all times pertinent to this proceeding. In addition, he is the qualifying contractor for Alachua Association Builders. (Petitioner's exhibits 2-3) In March 1985, Evans Starke of Miami, Florida entered into an oral agreement with Respondent for the construction of a residence near Melrose, Florida. Respondent agreed to build the house on a cost-plus basis and estimated that the cost would be approximately $27.00 per square foot or less. Respondent told Starke that he would be satisfied with 10 percent of the cost of construction for his fee. The arrangement was that Starke would Periodically provide money to his aunt, Lenora Peterson, and that Respondent could make draws from that source as required to progress with construction. Starke also asked Respondent to open a checking account from which he would pay the bills for materials and labor. (Testimony of Starke) The original construction plans provided to the Respondent by Starke were for a house of approximately 4,000 square feet, but since Starke wished to expand the size of the house considerably, he informed Respondent of the various modifications which resulted in Respondent obtaining revised plans from a draftsman for a house of approximately 10,000 square feet. (Testimony of Starke, Respondent) Respondent obtained a building permit in his name and commenced construction. As work progressed, Respondent would inform Lenora Peterson of the need for progress payments for materials and labor on a weekly basis. She would then provide the necessary money in cash to Respondent and obtain a signed receipt from him. During the period March through September, 1985, Respondent signed receipts amounting to $121,360. Respondent had several checking accounts in the name of "J. & L. Properties", into which some of the draws were deposited and checks drawn thereupon to pay materialmen, subcontractors, and workmen. In other instances, Respondent paid cash to workmen, but obtained no receipts therefor. Starke visited the project site usually on a biweekly basis during the initial months of construction. On several occasions, he met Respondent midway between Gainesville and Miami to deliver cash for construction costs. Some of this money given to Respondent was not evidenced by a receipt of Respondent. Starke testified that on one occasion, he gave Respondent $3,000 to pay for the installation of a well, but Respondent had only given the well-digger $1,000, and Starke later found that he still owed the balance, plus a 25 percent rise in cost. Starke also claimed that he spent $1,000 to put a drain under the driveway to the basement because Respondent had forgotten to do so. He further stated that he had given Respondent $5,000 to purchase shingles for the house, but Respondent bought only enough to cover the garage. Consequently, Starke was obliged to expend further sums to obtain the remaining shingles. (Testimony of Starke, Respondent, exhibits to deposition of Rentz (Petitioner's Exhibit 2), (Petitioner's composite Exhibit 6) During Starke's periodic visits to the job site, he requested that Respondent show him the bills and receipts for the purchase of construction material and labor payments, but Respondent evaded such request by saying that his wife was handling the business matters, and that she was ill and unable to show him the records. Eventually, Starke became more concerned because of the discrepancies in the expenditures of funds, and therefore made a special trip in October 1985 to meet with Respondent and go over the project accounts. At that meeting, Respondent's wife provided Starke with a number of canceled checks on the J. & L. Properties account, which failed to identify any specific payments for the Starke project, but which consisted mostly of apparent payments of Respondent's personal bills. (Testimony of Starke, Respondent, Petitioner's Exhibits 2,6) Subsequent to the October meeting, Respondent asked Starke for the sum of $1,500 for his own services, which was paid. This was the last payment made by Starke to Respondent and the last contact that he had with him. Respondent performed no further work and left the project about the third week of November 1985. Although Starke attempted to get in touch with him during the intervening period, he was unsuccessful in doing so. (Testimony of Starke, Respondent, Petitioner's Exhibit 2) On January 31, 1986, Starke obtained a new building permit to complete his residence, and hired Marion C. Uhl, a certified residential contractor, at an hourly rate to supervise the remaining work. Uhl found at that time that the house consisted of a shell with some interior partitions erected and doors in place, but without any electrical or plumbing work, except for a garage bathroom. It took him approximately ninety days to correct previous construction errors before it was ready for subcontractor work. Specifically, he found that the partition walls were out of plumb and that some of the doors were not framed properly. It was necessary for him to tear them out and redo the work. He found no backing (dead wood) for the ceilings and walls which should have been in place before the roof was sheathed. He had to take out all the windows which were out of plumb and reinstall them. It was necessary to frame out the gables of the house in order that water wouldn't accumulate in vacant areas. Water had accumulated in the garage basement due to a failure to install proper drain fields under the house. Additionally, it was discovered that there was no concrete in the tie beams which supported the floor above and could cause it to sag eventually. In Uhl's opinion, which is accepted, these problems would not have occurred if the job had been properly supervised. (Testimony of Starke, Uhl) Robert H. Adams, an expert in the residential contracting field, who owns a building inspection firm, inspected the Starke premises on May 18, 1987 at the request of Petitioner. Based upon his examination of the house, he found the following deficiencies, which had existed at the time Respondent left the project: In some areas, the brick veneer exterior walls were not properly supported on the footing in that the brick veneer protruded beyond the outside edge of the footing. Also the footing was at grade rather than being below grade. Failure to utilize solid concrete walls or pouring of concrete into concrete blocks which formed walls supporting a steel I-beam. This deviation from the plans could result in failure of the foundation walls. Improper splicing of girders under the house. Girders were butt-spliced rather than spliced with either a shep or a diagonal cut. The joints were not over a supporting pier. Settling from the floor above could cause the house floor to sag. The exterior brick roll-out window sills were level instead of being at a slight angle to permit water to flow away from the bottom of windows, thus causing the potential of water intrusion into the house. Front entry brick steps were not centered with the door opening by approximately 18 inches. An exterior garden hose bib Produced hot water instead of cold at left front of the garage. This was caused by "mis- plumbing" the cold and hot water lines. Block wall of the garage was out of plumb approximately 7/8 of an inch over a 4 foot vertical distance. One of the garage roll doors had only 9 foot, 3 inch clearance instead of 10 feet as called for by the plans. Uneven coursing of brick veneer at the ceiling of the right rear porch. Waferboard was used on roof decking rather than plywood as called for by the plans. Waferboard is not as strong as plywood. Water intrusion into the garage- basement. In Adams' opinion, which is accepted, the deficiencies noted by his inspection reflected very poor workmanship and gross negligence, in that the fundamentals of construction as practiced in the construction trade were not observed by Respondent in major areas. They were gross deviations from good building practices and a competent contractor properly supervising the job would have been aware of the deviations from good contracting practice. In addition, it is incumbent upon a contractor to keep accurate and complete financial records for a particular project. (Testimony of Adams, Petitioner's Exhibit 7) In January 1986, Starke employed Universal Engineering Testing Company, a structural engineering firm, to ascertain the cause of groundwater leaking into the garage-basement of his house and to provide remedial recommendations. Professional engineers of the firm inspected the premises and observed that groundwater was leaking at the wall-floor joint around most of the garage. They found that although a drainage system had been installed during construction, soil and groundwater conditions at the site limited the effectiveness of the existing system, due to hydrostatic pressure build up under the garage floor. It was determined that, unless the pressure was dissipated with under-slab drainage, the slab would heave, crack, and leak at the wall-slab joint They found that the situation could only be remedied by installing an under drain grid after removal of the existing slab. In their professional opinion, which is accepted, the failure of the existing slab had been caused by excessive water pressure build up and improper construction techniques. (Testimony of Gordon, Petitioner's Exhibit 1) At the hearing, Respondent admitted that he had never constructed a house of the scope and size of the Starke residence, but that he had attempted to build what Starke desired in accordance with the plans and numerous changes required by Starke during the course of construction. Such changes, in his view, caused the difficulty in centering the brick work at the front of the house since this work was called for after the front door had already been installed. He claimed that he had waterproofed the garage-basement and put in French drains, but that water couldn't go out, and it was necessary to install a tank under the driveway to pump the water from the basement. Respondent also conceded that he did not maintain continuing records during the course of construction as to the financial aspects of the project, but intended to recapitulate all costs and payments when construction was completed. He acknowledged that receipts from the project were commingled with other funds in his bank accounts and he was unable to show the disposition of proceeds from the project. As to leaving the job, Respondent said that he left because he was threatened by Starke and also because of ill health caused by the stressful situation which came from continuing complaints by Starke concerning the workmanship, and also by the numerous changes to the construction plans. Although Respondent claimed that he notified Starke by letter of January 14, 1986, that he intended to remove his permit no later than January 27, 1986, because it appeared that Starke had decided to take charge of completing the construction, Starke denied receiving such a letter and there is no credible evidence that it was delivered. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) On two prior occasions in 1985 and 1986, Respondent was disciplined by the Construction Industry Licensing Board pursuant to settlement stipulations of administrative complaints filed by Petitioner against Respondent. In those stipulations, Respondent admitted violations of Chapter 489, Florida Statutes, as alleged in the complaints, and administrative fines of $250 and $400 were imposed. (Petitioner's Exhibits 4-5)
The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 30th day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondent is a registered mechanical contractor having been issued license number PM 0031251. The Petitioner is an agency of the State of Florida, charged with regulating the practices of contractors, administering and regulating their licensure status, and enforcing the legal requirements of Chapter 489, Florida Statutes, and appertinent rules. In the late summer of 1980, the Respondent, d/b/a Reach Services and Supply Company, entered into a verbal contract with one Harvey Smith to install an air-conditioning and heating unit in Mr. Smith's residence located at 610 Outer Drive, Milton, Florida. The contract was for approximately $1,245. The Respondent failed to obtain a permit from the City of Milton for the installation of those units at Harvey Smith's residence until after the installation was essentially completed. The building inspector for the City of Milton, Anthony Thompson (testifying for the Petitioner), inspected the premises on or about October 31, 1980, and found several violations of the building code of the City of Milton, to wit: (a) the furnace was installed too close to the wall of the house (less than the required six inches); (b) a cut-off valve for the gas supply line was not installed; (c) a weather-proof disconnect device was not installed at the furnace unit and the furnace was not wired on a separate electrical circuit from other residential electrical equipment. The building inspector notified the Respondent concerning these deficiencies immediately after the inspection. The Respondent ultimately reinstalled the furnace, on February 12, 1981, so that it did comply with the minimum distance required between the furnace and the structural walls. The Respondent failed, however, to return to the job and otherwise complete the installation and correct the remaining deficiencies after several requests by both the owner and the building official, Mr. Thompson. Through his own efforts, the owner of the residence, Mr. Smith, eventually had the installation of the furnace completed in August of 1981. In the fall of 1980, the Respondent installed a furnace at 613 Outer Drive for Mr. Frank Moss, which was inspected by the same inspector on or about December 23, 1980. The clearance between the furnace and the structural wall of the residence in this instance was also insufficient, which can cause a significant risk of the structural wall igniting due to the heat generated by the furnace. There was no cut-off valve on the gas supply line installed within six feet of the furnace (as required by Section 302.1 of the Standard Gas Code). No disconnecting device was installed on the unit such that the wire was connected directly to the unit contrary to the requirements of Section 801 of the Standard Mechanical Code. Finally, a permit was not obtained for the installation of the furnace at all, as is required by Section 104 of the Standard Mechanical Code. During late 1980, the Respondent contracted for and installed a heating and air-conditioning system at 206 Berryhill Road, Milton, Florida. On or about January 12, 1980, the building official, Mr. Thompson, inspected the installation. A cutoff valve had not been installed within six feet of the furnace, ducting was improperly supported, and the furnace was located below the adjacent ground level. The ducts were not properly taped, nor was a proper type of wire used to wire the related electrical receptacle. The vent for the furnace did not extend the minimum required distance above the roof of the dwelling. No light outlet was installed in the furnace area. These deficiencies were, respectively, contrary to the requirements of Section 302.1, Section 504, Section 303.2-5(b), Section 506 and Section 511, Section 303.2-5(d) of the Standard Mechanical Code, and of Sections 302.1 and 507.3 of the Standard Gas Code of the City of Milton, Florida. During late 1980, the Respondent contracted for and installed an air- conditioning and heating system at 405 Ravine Street, Milton, Florida for Mary Beth Williamson. Once again, on January 12, 1981, Mr. Thompson inspected that installation at which time the following deficiencies existed: insulation was improperly installed, there were holes in the "air plenum" and improper caulking. Once again no gas cut-off valve was installed and the wiring was improperly installed and not weather-proofed. These installations were not performed within the requirements of Section 511 of the Mechanical Code (1978 revision) and Section 302.1 of the Standard Gas Code. The Respondent ultimately repaired or corrected the various deficiencies with regard to the 405 Ravine Street installation and established that the inspection for that particular installation had been prematurely called in by his son, his employee, and that the job was not yet ready for inspection at the time the inspection was mistakenly requested. Further, during the periods of time in question in the fall of 1980, the Respondent was ill with a serious heart ailment. He was consequently unable to be present at each job for an adequate period of time to fully supervise the installation, as he has done before and after the period of time in question. Since 1981, the Respondent has established a record of cooperating with the City of Milton Building Department and there have been no more recent violations.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered finding the Respondent, Abe L. Newsome, guilty of four violations of Section 489.129(1)(d) and (k), Florida Statutes (1979), and one violation of Section 489.129(1)(m) and that a $400 fine for each of the five violations be imposed. DONE and ENTERED this 29th day of February, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 29th day of February, 1984. COPIES FURNISHED: John O. Williams, Esquire BOYD, THOMPSON & WILLIAMS 2441 Monticello Drive Tallahassee, Florida 32303 Abe L. Newsome 612 Highway 90 West Milton, Florida 32570 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred M. Rochep, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and if so what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was a licensed standard building inspector, license number BN 0001750. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to the residence. She retained a contractor to perform the work and returned to her second home in Ohio during the time of the construction. When Ms. Edwards returned to Florida in December of 1996, she was dissatisfied with the quality of the construction work performed on her home. Mr. Joyce, Ms. Edwards' friend, stated that they had expressed a desire for, and had requested, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by an unlicensed building inspector, James L. Brown. This led the homeowner to suspect that the work performed did not meet inspection code standards. Building code inspections are to verify that the work performed by contractors meets certain minimum standards set forth in adopted building code regulations. By implication the highest quality of construction performance would generally exceed code requirements. One inspection item in particular concerned Ms. Edwards' friend, Mr. Joyce. This homeowner believed the new addition did not have a proper footer. All of the inspections listed on the permit card for this project occurred prior to December 17, 1996. The footer/slab inspection was performed on October 4, 1996. The Respondent asserts that at the time he performed the footer/slab inspection, the structures were in place to assure that the poured foundation would meet minimum code requirements. The Respondent does not dispute that Mr. Brown, an unlicensed inspector in training, initialed the permit card and transmitted by radio the inspection results. Mr. Brown was assigned to work with the Respondent during his training period prior to receiving licensure from the state. Mr. Brown ultimately received his provisional license on or about December 17, 1996. The Respondent asserts that a final inspection was not performed on Ms. Edwards' home. Consequently, no final verification was completed to assure the home addition was constructed in accordance with the plans and the forms on the ground for the footer/slab foundation. In this case there is no allegation that the construction plans for the addition for the Edwards' home failed to meet minimum code requirements. Presumably the footer/slab foundation as reflected on the plans would have specified at least a minimum compliance with code mandates. The footer/slab inspection was performed with the forms and reinforcements in place according to the approved plans. The Respondent maintains that the forms and reinforcements met minimum code requirements and that if such forms were altered after inspection he would not have known. Typically, once the footer/slab foundation forms and reinforcements are approved by an inspector the contractor calls for the delivery of concrete to be poured into the foundation forms. The date the concrete was poured for the subject footer/slab is unknown. Whether there was a delay between the footer/slab inspection date and the construction date is unknown. In any event when Ms. Edwards and Mr. Joyce returned from Ohio to view the addition the foundation did not appear adequate. Efforts were then pursued to attempt to ascertain whether the footer/slab did meet code. In this case the record is inconclusive as to whether the footer/slab foundation as constructed at Ms. Edwards' addition meets minimum code requirements. The pictures in evidence do not clearly establish the depth of the slab. Some of the photographs suggest that the minimum depth was achieved. A visual inspection performed at the site did not verify the depth nor compare the interior finished grade with the exterior measurements. The final grading of the exterior of the home around the addition was never completed. As a result the photographs may have a distorted view of the foundation and portions should have been back-filled along the edge of the slab. In any event, no definitive measurements have been offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Bobby T. Chambers 3520 Northeast Linda Drive Jensen Beach, Florida 34957 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
