Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence adduced at the hearing, the following relevant facts are found. During times material herein, Respondent, Sebastian R. Sirven, was a certified general contractor and has been issued license numbers CG C003075 and CG CA03075. At all times material, Respondent was sole qualifier of Dynamic Construction Land Development Corporation. Dynamic Construction Land Development Corporation (herein Dynamic) was the developer of homes in the Gil-Mar Subdivision in Sweetwater, having been listed as such on all pertinent official records, including all building permits obtained for the aforesaid homes. Dynamic commenced construction on Lots 19 through 28, Block 3 in Gil- Mar Subdivision without first obtaining building permits there for. In this regard, construction had progressed to various stages in several of the homes, including the pouring of footings in some and the erection of walls and roofs on others before permits were issued. (TR p. 13, Respondent) It was noted that while application for the building permits for the above-referred homes had been filed by the President of Dynamic, Jorge Gomez, such applications had not been approved by the City of Sweetwater until a date subsequent to the commencement of construction. (See, Exhibit #1, pages 38 and 56.) Tie beams were poured on residences being constructed on Lots 19, 20, 21 and 22 of the Gil-Mar Subdivision without first having been inspected pursuant to the code. (Testimony of Delaney and Respondent) Frank Lubien, building official for Dade County, issued several verbal stop work orders to Dynamic which were briefly obeyed, and then were consistently and repeatedly ignored. On July 28, 1980, written stop orders were issued which again were disregarded by employees and representatives of Dynamic. (Testimony of Lubien and Delaney; Exhibit #1, pages 9, 45-50) Respondent, while not being directly in control of construction until after Dade County Building Department issued stop work orders for Dynamic at the subject subdivision, frequently visited the construction site subsequent to the issuance of the stop work orders. As testified to by Inspector Lubien, inspections of the subject construction activities by Dynamic were made and appeared to have been in conformity with acceptable contracting practices. In this regard, evidence reveals that the code violations as to the method of permissible construction alleged in Count VI of the Administrative Complaint filed herein, were timely corrected. Respondent avers that he was not at fault in the constructing activities here complained of inasmuch as he was not on the scene until it came to his attention that stop orders had been issued for the construction project. In support thereof, Respondent refers to the fact that he was working on another construction project in Volusia County, Florida and was unaware of the alleged violations here complained of. Finally, Respondent contends that once he came to the construction site, no further violations occurred by Dynamic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner find Respondent guilty of Counts I through V and be ordered to pay an administrative fine of $100 per count; That the Respondent's licenses to practice contracting (License Nos. CG C003075 and CG CA03075) be placed on probation for a period of one (1) year. RECOMMENDED this 15th day of April, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1983.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility for prosecuting Administrative Complaints pursuant to chapters 455 and 489, and the rules promulgated thereunder. In September, 1983, license number CR C012950 was issued to Respondent, David A. Taylor, as the qualifying agent for Energywise Homes, Inc., 3305 S.W. 1st Court, Deerfield Beach, FL 33441. License number CR C01295p remained in effect until June 30, 1987. License number CR C012950 was delinquent and invalid from July, 1987, through May 10, 1988. In July, 1987, license number CR C012950 was placed on a delinquent status for non-renewal and considered invalid. On April 19, 1988, Respondent applied for renewal and reinstatement of license number CR C012950. Respondent's application for renewal and reinstatement was approved May 11, 1989. At that time, license number CR C012950 was changed from a qualifying business to an individual license. In April, 1988, Respondent applied to the City of Sebastian, Florida Construction Board (the "City") for an occupational license in order to obtain building permits for jobs he had contracted in that jurisdiction. License number CR C012950 was delinquent and invalid at the time Respondent applied to the City for an occupational license and permits. Respondent presented an altered license to Ms. Kathryn Nappi, the person responsible for issuing occupational licenses for the City in April, 1988, for the purpose of obtaining building permits from the City. The typeface on the license presented by Respondent to Ms. Nappi does not match either that used on the bottom portion of the same license or the copy of the licenses admitted as Respondent's Exhibit 1. Further, the date used on the altered license is not a date normally used by the Construction Industry Licensing Board. Finally, the license presented by Respondent to Ms. Nappi indicated the license was held by Respondent individually rather than as qualifying agent for Energywise Homes, Inc. The testimony of the witnesses for Petitioner was consistent and credible. The procedures followed by Ms. Nappi and her supervisor, Mr. Bruce Cooper, Director of Community Development and Building Official for the City of Sebastian, were customary procedures followed in the ordinary course of their business. Neither witness had any discernible motive for fabricating the events to which they testified. Respondent presented the altered license to Ms. Nappi sometime in April, 1988, for the purpose of obtaining building permits for the five homes to be constructed in the City. Ms. Nappi noticed that the type on the top of the license submitted by Respondent did not match the bottom portion. She brought the discrepancy to the attention of Mr. Cooper. Mr. Cooper confirmed with the Department of Professional Regulation that the license submitted to Ms. Nappi by Respondent had been altered. Mr. Cooper set up a meeting between himself, Respondent, and two detectives to ascertain Respondent's position concerning the altered license. Mr. Cooper did not believe Respondent's position and placed the matter on the agenda for the May 3, 1988, meeting of the Sebastian Construction Board (the "Board") 3/ Respondent and the owner of the five homes for which permits were being sought appeared at the May 3, 1988, meeting of the Board. The Board voted to approve the building permits subject to the issuance of a valid license by the Department of Professional Regulation. The owner requested issuance of the permits because delay was causing his investment to dwindle. The Board also considered the fact that the properties were becoming an eyesore in the City. The Board voted to approve the permits, subject to Respondent obtaining a valid license, and leave the issue of the altered license to the Department of Professional Regulation. Respondent's testimony that he did not present an altered license for the purpose of obtaining building permits from the City, and that he had never previously seen the altered license, is rejected as not credible. Such testimony is inconsistent with statements by Respondent to Mr. Cooper and at the May 3, 1988, meeting of the Board, which were admitted in evidence as exceptions to hearsay under Section 90.8C3(18). Respondent's testimony is also inconsistent with the greater weight of evidence. Financial pressures caused by previous delays in obtaining permits provided a motive for Respondent to present an altered license to obtain building permits for the five homes to be constructed in the City. Previous attempts by others to obtain building permits for five homes to be constructed in the City had been unsuccessful. Respondent made several further attempts to obtain building permits for the five homes to be constructed in the City. The delays in obtaining the permits had caused the investment of the owner of the homes to dwindle. Furthermore, the homes were becoming an eyesore for the City. Respondent committed an act of fraud, deceit, and misconduct in April, 1988, when Respondent intentionally presented an altered license to Ms. Nappi to obtain building permits for the five homes to be constructed in the City. No evidence has been presented to support a finding that Respondent altered the license presented to Ms. Nappi. However, Respondent knew or should have known that the license submitted by him had been altered, and Respondent submitted the altered license for the purpose of obtaining the needed building permits. Even without the requisite intent for fraud, deceit, and misconduct, Respondent is not exonerated. Inadvertently presenting an altered license to Ms. Nappi in April, 1988, at a time when Respondent knew his license was delinquent and invalid constitutes gross negligence and incompetence in the practice of contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting in violation of Section 489.129(1)(m). Florida Administrative Code Rule 21E-17.001 provides in relevant part: "The following guidelines Shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the other provisions of this Chapter. (emphasis added) * * * (19) 489.129(1)(m): Gross negligence, incompetence, and/or misconduct, fraud or deceit. (a) Causing no monetary harm to licensee's customer, and no physical harm to any person. First violation, $250 to $750 fine; repeat violation, $1,000 to $1,500 fine and 3 to 9 month suspension. Florida Administrative Code Rule 21E-17.002, describes aggravating and mitigating circumstances which may be considered in determining the penalty to be imposed in a particular proceeding. Petitioner produced no evidence of any aggravating circumstances other than the alleged violations of Sections 489.113 and 489.115. There was no evidence of monetary or other damage to the licensee's customer, actual job site violations, repetitive offenses, the number of complaints filed against Respondent, or actual damage to the licensee's customer. See Fla. Admin. Code Rule 21E-17.002(1),(2),(s),(6), and (8). Considering the absence of any aggravating factors, the length of time Respondent has practiced contracting without any complaint, the de minimis danger to the public, and the fact that the Board approved the permits sought by Respondent because of the beneficial effect the permits would have on the owner and the City, it is recommended that Respondent be fined $250. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of February, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990.
Findings Of Fact Upon consideration of the oral argument adduced at the hearing, the following relevant facts: In November of 1983, the Captiva Erosion Prevention District (CEPD) submitted an application from the DER to construct an experimental "on-site stabilization system along 650 feet of Captiva Erosion Prevention District. The application listed Petitioner Arthur Learned, president, Learned Engineering and Development, Inc. as authorized agent. Drawings attached to the application show a location plan, a site plan and a plat. Each drawing is on Learned Engineering and Development, Inc. letterhead and is signed by Arthur Learned. The application noted that the project was "ex* NOTE: The continuation of words on this paragraph line are unreadable as viewed in the original document on file in the Clerk's Office and therefore not available in this ACCESS document. judged harmful, can be undone." 3. A Joint U. S. Army Corps of Engineers Permit Application Appraisal was performed* NOTE: The continuation of this paragraph along with pages 3 and 4 of the original document on file in the Clerk's Office are not available therefore not included in this ACCESS document. limitations of authority of resident project representative." Petitioner notes in a letter to the CEPD that said duties are in addition to those normally provided by the Engineer as Owner's representative during construction. Among the listing of the duties of a Resident Project Representative (RPR) is a provision which states that through more extensive on-site observations of the Work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work; but the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACT0R's failure to perform the Work in accordance with the Contract Documents. At some point in February of 1986, the DER discovered that concrete had been used in a portion of the stabilizers. Petitioner met with the DER staff concerning this permit violation, and explained that concrete, rather than sand, was placed in the bags due to changed conditions. Petitioner was told that any change in design needed approval from the DER. By letter dated February 28, 1986, Petitioner requested a modification of the permit to include the substitution of concrete intersection as stabilizer tie-in and filler. The after-the-fact permit modification was granted by letter dated May 26, 1986, addressed to the petitioner. The modification allowed the use of concrete-filled bags to construct the most landward portion of the six permitted groins to a maximum length of 13 feet from the landward connection. It did not permit concrete bags beyond the 13 foot distance. On or about March 6, 1986, petitioner completed a Certificate of Substantial Completion for the Sand Core Filter Beach Stabilizers, indicating the date of substantial completion to be February 16, 1986. Prior to the modification authorized on May 26, 1986, the petitioner received a letter from DER dated March 24, 1986. This letter notified Mr. Learned that the permit did not authorize placement of concrete within the permitted sand bags, and that, in order to correct the outstanding violations, the concrete material must be removed from the sand bags. Petitioner was request to remove all sand bags that contained cement within fourteen days. Based upon DER's prior correspondence with petitioner Learned during the permitting process, as well as its investigation, on-site inspections, meetings, telephone conversations and a sworn affidavit from the Chairman of the CEPD regarding the CEPD's lack of knowledge of noncompliance with the conditions of a similar Department of Natural Resources' permit, DER staff believed that petitioner Learned (along with the contractor) was the responsible party in the decision to use concrete in the sand bags and that the CEPD relied upon the petitioner and the contractor to adhere to permit conditions. The DER did not review the contract documents regarding petitioner's services to the CEPD prior to instituting proceedings against the petitioner. On August 5, 1986, the DER issued a Notice of Violation and Orders for Corrective Action against Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. The Findings of Fact contained therein recite that Learned Engineering and Development, Inc. and Erosion Control Systems, Inc. are the agent and contractor respectively for the CEPD. Violations of Chapter 403 were found and specific corrective actions were proposed. The corrective action to be taken was the removal of all concrete bags waterward of the 13 foot mark, the refilling of said bags with sand, the removal of any bags containing asphalt and the return of all disturbed areas to pre-removal conditions. Learned Engineering and Erosion Control Systems were also to make payment to the DER in the amount of $392.60 for expenses incurred in investigating the matter. On March 16, 1987, DER issued an Amended Notice of Violation and Orders for Corrective Action. This document named the Captiva Erosion Prevention District, Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. as respondents, and noted that CEPD was the permittee, that petitioner Learned was the authorized agent on the project for CEPD and that Erosion Control Systems was the project contractor employed by CEPD. The Amended Notice is substantially similar to the initial Notice, but adds a further violation regarding the use of turbidity curtains during construction. It also adds a Count charging that Respondents Learned and Erosion Control conducted dredging and filling activities without a valid DER permit. The Orders for Corrective Action are identical to the initial Notice. DER subsequently resolved its dispute with the CEPD and, on March 11, 1988, filed a Notice of Voluntary Dismissal as to Erosion Control Systems and petitioner Learned Engineering. At the time of the initial Notice Of Violation and Orders for Corrective Action, petitioner was a for-profit corporation under the laws of Florida with its principal place of business in Venice, Florida. Due to financial difficulties caused, at least in part, by the DER's actions in the enforcement proceeding described above, Arthur Learned, President of Learned Engineering, closed the Florida office, semi-retired and moved to Georgia. Learned Engineering relocated to Georgia on January 1, 1987, and now has its principal place of business in Blairsville, Georgia. It does still maintain contacts in Florida and has recently performed other work in Florida. At all relevant times, Petitioner has had less than 25 employees and a net worth of less than $2,000,000.00. Petitioner incurred attorney's fees and costs in the amount of $5,127.07 in defense of the administrative proceedings described above.
Findings Of Fact The parties stipulated at conclusion of hearing to the matters set forth in the following findings of fact. Stipulated Facts The Respondent was the subject of a previous administrative complaint filed by the Petitioner. The previous administrative complaint issued by Petitioner was number 76024. The Respondent did not seek a formal administrative hearing to contest the charges of the previous administrative complaint which consisted of the same fact allegations and statutory violation as set forth in the charges in the instant complaint. The Respondent and the Petitioner reached an accommodation in regard to the charges set forth in the previous administrative complaint. Petitioner entered a final order in that previous case pursuant to stipulation and settlement which imposed sanctions upon the Respondent. Such final order was signed on November 19, 1987, by J. R. Crockett, Chairman of the Construction Industry Licensing Board and was filed with the Board Clerk on November 24, 1987. The administrative complaint in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, the instant case, is included in the settlement of Petitioner's case number 76024. As a result of the previous administrative adjudication of the same cause of action as set forth in the present proceeding, further factual findings in this case are not warranted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that, in view of the parties's stipulation at hearing, a final order be entered 1) finding this administrative complaint, as set forth in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, should have been included in the previous disposition of Petitioner's case number 76024 and 2) dismissing further proceedings in this cause. DONE AND RECOMMENDED this 7th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Holden, Esquire Litigation Building, Suite 204 633 South Andrews Avenue Ft. Lauderdale, Florida 33301 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Glen H. Curd is licensed by the Florida Construction Industry Licensing Board as a Building Contractor and holds license number RB 0022003. Following a hearing the Building Board of Appeals and Adjustments, Pasco County, Florida, on 4 September 1979 revoked Glen H. Curd's Certificate of Competency (Exhibit 1). Exhibit 1, the minutes of the September 4, 1979, meeting of the Building Board of Appeals and Adjustments, Pasco County, clearly indicates that this board revoked Curd's certificate on grounds of incompetence.
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor holding license number CB CO24185. On or about March 14, 1983, Respondent, doing business as Duran Construction Co., contracted with Mr. and Mrs. Thomas Butler of San Mateo, Florida, to construct a room addition and freestanding carport at their residence for $6,825. Subsequently, Respondent constructed an aluminum "roof- over" by rate contract for an additional $2,000. Respondent completed the freestanding carport and aluminum roof-over projects without apparent difficulty. However, he began the room addition without obtaining the required building permit from Putnam County. 1/ He obtained an after-the-fact permit about April 21, 1983, but was issued a "correction notice" by the Putnam County Building and Zoning Department on April 22, 1983, ordering all work to cease until the cited deficiencies were corrected. 2/ The chief building inspector arranged to meet Respondent on April 214, 1983, at the construction site. The purpose of the meeting was to discuss the corrective measures required on the partially completed room addition. Respondent did not attend this meeting and did no further work on the project. His failure to attend the meeting or continue work was not explained to either the building officials or the property owner. At the time Respondent discontinued work, he had been paid $4,550 on a written contract which covered the finished carport as well as the incomplete room addition. He had also been paid $2,000 for the finished roof-over project which was the subject of an oral contract. Respondent would have been entitled to an additional $2,275 on the written contract had he completed the room addition. By letter of May 6, 1983, the Butlers' attorney advised Respondent that he would initiate legal action against him unless the project was completed by May 13, 1983. However, Mr. Butler had already applied to the Putnam County Building and Zoning Department for reissuance of the permit to himself in place of Respondent. The permit was reissued to Butler on May 6, 1983 and the project was completed without Respondent's further involvement.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 489.129(1)(d), F.S., and suspending his contractors license for a period of four months. DONE and ENTERED this 16th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 323301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1984. 1/ A building permit must be obtained prior to construction. Section 106.1(a), Putnam County Building Code (PCBC). The PCBC is the Southern Standard Building Code adopted by Putnam County Ordinance 83-2. 2/ See Section 103.2, PCBC. The cited deficiencies included insufficient girder support for floor joists and inadequate roof framing with respect to rafters and beam construction. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Dean Arturo Duran 11680 N.W. 15th Lane Ocala, Florida 32675 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the local technical amendments to the Florida Building Code adopted by the City of Port Orange and the City of South Daytona comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001).
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner Florida Home Builders Association, Inc. (FHBA) is a Florida not-for-profit corporation. FHBA's organizational purpose is to monitor government activity affecting the construction industry and to provide assistance to its local chapters on statewide issues. The local technical amendments adopted by Respondents are within FHBA's general scope of interest and activity because they affect the construction industry and because they have the potential to undermine the statewide uniformity of the Florida Building Code. FHBA has over 15,000 members statewide, including 553 members (approximately 3.69 percent) in Volusia County. FHBA's Volusia County membership corresponds to the membership of the Volusia Home Builders Association, Inc. (VHBA), and includes only 20 members (approximately 0.13 percent) in South Daytona and only 50 members (approximately 0.33 percent) in Port Orange. Petitioner VHBA is a Florida not-for-profit corporation. VHBA is a local chapter of the FHBA. VHBA's organizational purpose is essentially the same as that of the FHBA, except that the scope of its interest is Volusia County and not statewide. The local technical amendments adopted by Respondents are within VHBA's general scope of interest and activity. VHBA has 553 members, all of whom are located in and conduct business in Volusia County. Of those members, 20 (or 3.62 percent) are located in South Daytona and 50 (or 9.04 percent) are located in Port Orange. The members of FHBA and VHBA include all types of persons and businesses involved in the construction industry, including general contractors, sub-contractors (including electrical contractors), real estate professionals, lenders, and attorneys. The record does not reflect the precise number of electrical contractors in either organization. FHBA and VHBA both initiate and participate in legal proceedings on behalf of their members that relate to regulatory issues affecting the home-building industry. Both organizations were duly authorized to initiate this proceeding, and the relief that they are seeking -- invalidation of the local technical amendments -- is the type of relief that is appropriate for them to receive on behalf of their members. Petitioner Stan Shirah is a general contractor whose firm, Shirah Builders, is located in Volusia County. Mr. Shirah is a member of both FHBA and VHBA. Mr. Shirah engages in new home construction, remodeling, commercial development, general construction, and land development throughout Volusia County and central Florida. He has undertaken these activities within the cities of Port Orange and South Daytona in the past, and intends to do so in the future. As a result, he will be required to comply with the local technical amendments. Neither Mr. Shirah nor his firm does electrical installations. That work is done by sub-contractors on projects that Mr. Shirah is the general contractor. However, as the general contractor (and president of his firm), Mr. Shirah is ultimately responsible to the owner for the building's compliance with the applicable regulatory requirements. Mr. Shirah and the members of FHBA and VHBA are affected by the Florida Building Code on a daily basis. A uniform building code is important to them (and, with respect to FHBA and VHBA, their members) because it allows them to conduct their business in any jurisdiction under the same set of rules. Local amendments to the Florida Building Code undermine that uniformity and, potentially, make compliance with the Code more difficult and/or time consuming thereby causing delays in construction and increasing construction costs. Each of the Petitioners participated in the challenge to Respondents' local technical amendments at the Volusia/Flagler Counties Code Compliance Review Board. Respondents are incorporated municipalities located in eastern Volusia County. Each municipality adopted the same nine technical amendments to the Florida Building Code which are at issue in this proceeding. The amendments add more stringent requirements to the National Electric Code (NEC), which is incorporated by reference into the Florida Building Code. Respondents are coastal communities. A small portion of Port Orange's boundary extends to the Atlantic Ocean. South Daytona's boundary does not extend to the Atlantic Ocean, but it abuts the Halifax River, which is a salt-water body. Port Orange also abuts the Halifax River. Adoption of and Challenge to the Local Technical Amendments Adoption of the Amendments City of South Daytona South Daytona adopted the local technical amendments at issue in this proceeding on or about December 11, 2001. The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code. The amendments were filed with the Commission on April 2, 2002, which is 112 days after their adoption and 32 days after they became effective. The ordinance or resolution through which the amendments were adopted is not part of the record of this proceeding. Nor does the record include agenda items or meeting minutes which might reflect what information or evidence was before South Daytona's City Council when the amendments were adopted. Accordingly, there is no credible evidentiary support for the representation made by South Daytona's attorney at the hearing (and in the interrogatory responses received as Exhibit P2) that the City Council relied upon the findings and recommendations of the Volusia County Unified Code Committee (Volusia UCC) as the basis for adopting the local technical amendments. City of Port Orange Port Orange adopted the local technical amendments at issue in this proceeding on February 19, 2002, through Ordinance No. 2002-10. The first reading of the Ordinance occurred on January 29, 2002. The Ordinance included determinations that "local conditions justify the local amendments"; that "the local amendments do not discriminate against products, materials and construction techniques"; "that the products, materials and techniques referred to and restricted in the local amendments do not have demonstrated capabilities"; and that "it is in the best interests of the citizens of the City of Port Orange to adopt the local technical amendments " The Ordinance also included the following "findings of fact": Port Orange is partially a coastal community and is more susceptible to the effects of corrosion than other non-coastal parts of Florida due to the close proximity of large bodies of salt water. This corrosion has negative, unique, and possibly dangerous, local effects on the following materials rendering these materials unsafe for local use: Aluminum or Copper Clad Aluminum conductors which are smaller than #1 [see NEC Table 310.16]; Service drop conductors and wiring [see NEC Section 336-4]; Ground fault circuit breakers [see NEC Section 680-20]; Swimming pool equipment rooms with wiring not suited for a coercive [sic] environment including galvanized and sheradized conduit [see NEC Section 680-11]; Electrical metallic tubing for protection above ground [see NEC Section 230-50] The Ordinance made no specific findings or determinations with respect to the high wind conditions in Port Orange, nor did it make any specific findings or determinations with respect to the local amendments to NEC Sections 230-52, 230-70, 339-3, or 680-8. The amendments became effective on March 1, 2002, to coincide with the effective date of the Florida Building Code. The agenda package for the City Council meeting at which the amendments were adopted included detailed information relating to the amendments. Specifically, the package included a report prepared by the Volusia Chapter of the Electrical Council of Florida (Volusia ECF) analyzing each of the amendments, the minutes of a meeting of Port Orange's Construction Regulation Board which recommended approval of the amendments after considerable debate, and a vote sheet indicating that the Volusia UCC recommended approval of the amendments. The agenda package also included letters from various electrical engineering firms or consultants expressing their support for the amendments. None of those letters cited specific local conditions that necessitated the amendments. Instead, they focused on the greater protection to the public that would result from the amendments by exceeding the minimum standards in the NEC. The Volusia ECF's report included a general analysis of the fiscal impact of each of the amendments and also included a justification for each of the amendments. In most instances, the justification listed was not a specific local condition such as high winds or the corrosive local environment. Instead, generalized public safety concerns were listed as justifications for the amendments. The agenda package also included letters from the VHBA and the Florida Pool and Spa Association expressing opposition to the amendments upon the basis that they were not supported by any unique local conditions. Also included in the agenda package was a report prepared by Alcan Cable which compared the performance and reliability of aluminum and copper conductors (wires) and concluded that there were no significant differences in the performance of the two types of wires. That study contradicts the justification set forth in the Volusia ECF report for the local technical amendment to NEC Table 310.16. The justification in the Volusia ECF report was apparently accepted by the City Council through its adoption of the amendment to that table. A City of Port Orange staff report, dated January 18, 2002, recommended against approval of the ordinance containing the local technical amendments. The staff report stated: Staff . . . has not contested the fact that certain proposed amendments may be more stringent and create a safer condition than provided in the Florida Building Code. However, we do not feel they meet the criteria in the Florida Building Code, established by State Statute for local technical amendments. Specifically [sic] are not unique to Volusia County or the City of Port Orange as the same conditions exist throughout the State of Florida and are discriminatory against a product. Therefore, staff cannot recommend approval of this ordinance. (Emphasis supplied). Despite that adverse staff report, the agenda for both City Council meetings at which the ordinance was considered -- January 29 and February 19, 2002 -- stated that staff recommended approval of the ordinance. The amendments were sent to the Commission on September 26, 2002, which is 222 days after the adoption of the amendments and 210 days after the amendments became effective. The amendments were received by and filed with the Commission on October 3, 2002. 2. Petitioner's Challenge to the Amendments On or about April 4, 2002, Petitioners initiated a challenge to Respondents' local technical amendments at the Volusia-Flagler Counties Code Compliance Review Board (Board). The Board was established through an interlocal agreement between Respondents and other municipalities in Volusia and Flagler counties, and it serves as the "countywide compliance review board" for those counties in accordance with Section 553.73(4)(b)7., Florida Statutes (2001). The Board conducted a hearing on Petitioners' challenge on November 19, 2002. At the conclusion of the hearing, the Board adopted motions upholding the local technical amendments and finding them in compliance with Florida law. On January 3, 2003, the Board memorialized its decision through a "Written Determination" which stated that the local technical amendments adopted by the Respondents "are hereby found to be in compliance with [Section] 553.73(4)(b), Florida Statutes." Petitioners timely "appealed" the Board's decision by filing a petition with the Commission, and this proceeding followed. Substance of and Respondents' Justification for the Local Technical Amendments Generally The local technical amendments modify Sections 210-52, 230-50, 230-70, 336-4, 339-3, 680-8, 680-11, 680-20, and Table 310.16 of the NEC. The NEC was incorporated by reference into the Florida Building Code without modification. Each of the local technical amendments was part of the Respondents' local building codes in effect prior to the adoption of the Florida Building Code. Accordingly, by adopting the amendments, Respondents sought to maintain the status quo within their jurisdictions, at least with respect to the subjects of the amendments. Each of the local technical amendments impose more stringent requirements than the NEC. The local technical amendments do not introduce new subjects into the Florida Building Code. The electrical installations required by the local technical amendments are more costly than those which would be required under the NEC without the amendments. Thus, if the amendments were not part of the local building codes, the cost of electrical installations in Port Orange and South Daytona would be lower. The Commission and the Commission's Electrical Technical Advisory Committee (TAC) considered revisions to the NEC similar to those in the local technical amendments when it adopted the NEC as part of the Florida Building Code. Those revisions were rejected by the Commission and the TAC because there was no Florida-specific justification for them. Respondents contend that the local technical amendments are justified on account of corrosive conditions and/or high wind conditions which purportedly exist within South Daytona and Port Orange. Salt is a corrosive agent, and corrosion can adversely affect electrical equipment. Corrosion also affects other materials, as reflected by the corroded metal pipe received into evidence as Exhibit R4. Coastal communities, to varying degrees, have a higher level of atmospheric salt than inland communities. This higher level of atmospheric salt is experienced by communities in proximity to either the Atlantic Ocean or the Gulf of Mexico, including 35 counties that border on the coast, and, to a lesser extent, other counties that are located close to the coast. The evidence fails to establish that the corrosive conditions in Port Orange and South Daytona are more severe than in all other areas of Florida. Nor does the evidence establish that the corrosive conditions in Port Orange and South Daytona are more severe than in other coastal communities. The Florida Building Code includes a map designating six different wind speed zones in Florida ranging from 90 miles per hour (mph) to 150 mph. Generally, the higher wind speed zones are located closer to the coast, and the lower wind speed zones are inland. The Florida Building Code prescribes stricter construction standards for structures located in higher wind speed zones, but the electrical provisions of the Florida Building Code do not change based upon the wind speed zone designation. The evidence does not establish that the wind conditions in Port Orange and South Daytona are more severe than in all other areas of Florida, or even in all other coastal communities. To the extent that Port Orange and South Daytona experience higher winds than might be experienced in inland communities, they are no different than other coastal communities around the state, or at least those along the Atlantic Ocean. Port Orange is located in the 120 mph wind speed zone, which is not even the highest wind speed zone. Other coastal communities are located in higher wind speed zones, such as Palm Beach (140 mph zone) and the Keys (150 mph zone). 2. NEC Section 210-52 (Separate Circuit for Certain Appliances) NEC Section 210-52 requires certain kitchen appliances to be on dedicated (i.e., separate) circuit breakers, and allows some items to be placed on circuit breakers with other items. The local technical amendment to this section requires more appliances -- dishwasher, refrigerator, freezer, microwave, and water pump systems -- to be on separate circuit breakers. The amendment allows the garbage disposal to be on the small appliance circuit breaker. The circuit breakers are attached to a "bus bar" which is located behind the panel of the breaker box. The breaker box has multiple "bus bars." The breaker box is typically (although not always) placed inside rather than outside where the corrosive conditions that might exist could impact the box. Multiple circuit breakers can be attached to each "bus bar" depending upon its rating. For example, a 60-amp "bus bar" can accommodate four 15-amp circuit breakers or two 30-amp circuit breakers or one 60-amp circuit breaker. The purpose of the amendment is to spread the electrical load from the listed appliances among more circuit breakers, rather than concentrating the load on one or two circuits breakers. The effect of spreading the electrical load among more circuit breakers is to reduce the number of times that the breaker might "trip" on account of an overload. The evidence fails to establish that the amendment would actually have its intended effect, i.e., reducing the possibility of a fire resulting from overloading a corroded "bus bar." Although the amendment prevents multiple appliances from being on a single circuit breaker attached to the "bus bar," it does not prevent those same appliances from being attached to the same "bus bar" on separate circuits breakers. As a result, the same electrical load would be placed on the "bus bar." The evidence also fails to establish that "bus bar" corrosion is a common problem in Port Orange or South Daytona. The burned "bus bar" received into evidence (Exhibit R2) was not in service in either municipality and it was not established that the burning was the result of corrosion. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not. 3. NEC Section 230-50 (Types of Conduit Allowed for Risers) NEC Section 230-50 establishes requirements for protecting service entrance conductors from physical damage, and specifies five types of conduit which can be used to run the wires through. The conduit is also called a "riser" because the wires in the conduit rise from the meter to the overhead power lines. The local technical amendment to this section eliminates two of the conduit alternatives -- EMT and "other approved means" -- which are comparably the "weakest" means of protecting the service entrance wires. The remaining options are rigid metal conduit, intermediate metal conduit, and rigid nonmetallic conduit (i.e., PVC pipe) suitable for the location. Service entrance conductors are the wires that run from the electric meter at the building, up the side of the building, to the point at which the power company's overhead utility lines come to the building. That point is typically several feet from the structure itself. As a result, there is typically several feet of exposed wire between the top of the conduit in which the service entrance wire is located and the point at which the power company's line is connected. EMT is a metal pipe. The EMT's exterior wall is thinner than that of rigid metal conduit and the other remaining means of protecting the service entrance wires. EMT is commonly called "thin wall" by electricians. "Other approved means" allows flexibility in meeting the requirements of the Florida Building Code. One example of "other approved means" is service entrance cable, which is a cable made up of individual wires wrapped with a copper braid and a protective plastic sheath. Because of its relatively thinner wall, EMT may be more be more impacted by corrosive conditions than rigid metal conduit. However, the evidence does not establish whether the degree to which EMT is more affected is material or not. It is possible that high winds can affect the conduit used to protect the service entrance wires. The winds typically do not blow the conduit itself because the power company and the NEC require the conduit to be securely attached to the wall of the structure. However, if hurricane winds down a tree or some other large object onto the overhead power line, that line could pull on the attached service entrance wire which, in turn, could crease, bend, or collapse the conduit. Under such extreme circumstances, EMT and rigid metal conduit would be similarly affected. EMT and "other approved means" have proven to be effective and capable means of protecting service entrance wires in coastal communities and elsewhere. This amendment discriminates against EMT by prohibiting it from being used as a riser for service entrance conductors. 4. NEC Section 230-70 (Location of Main Disconnect Switch) NEC Section 230-70 prescribes standards for locating the "main disconnect" for the building's electrical power. The NEC allows the "main disconnect" to be located within five feet of the point that electrical service enters the building. If electrical service enters the building underground, it is possible that the "main disconnect" could be located inside the building. The NEC does not require a "shunt trip" even if the "main disconnect" is located inside the building. The local amendment to NEC Section 230-70 requires the "main disconnect" for commercial or multi-family buildings to be located outside of the building or, alternatively, for such buildings to have a "shunt trip" control located outside of the building. The "main disconnect" is similar to a master on/off switch for all of the electric power to a building. A "shunt trip" is an electronic device or button placed on the exterior of the building which can be used to turn off the power to the building from the outside when the "main disconnect" is located inside the building. It can be important for firefighters to turn off the power to a building in the event of an emergency. If the "main disconnect" is located in the interior of the building, it may not be easily accessible. Other alternatives are available to the firefighters in such circumstances, including contacting the power company to turn off the power to the building at the transformer or "pulling" (i.e., removing) the meter. "Pulling" the meter can be accomplished in virtually no time. This amendment cannot be justified on account of any corrosive conditions that might exist within Port Orange or South Daytona. Indeed, by requiring the "main disconnect" to be located outside of the building, it is more subject to corrosion than it would be if it is located inside of the building. The amendment is not justified by wind conditions in Port Orange or South Daytona. Indeed, there are any number of circumstances unrelated to hurricanes or high wind which would make it desirable for there to be a means to turn the power to a building off from the outside, but those same circumstances exist throughout Florida. 5. NEC Table 310.16 (Minimum Size of Aluminum Wires) NEC Table 310.16 is an ampacity chart for wires, and prescribes the size of wire that can be used for various purposes. The uses vary based upon the wire's size and its composition, i.e., copper or aluminum. The NEC allows the use of aluminum wire as small as "number 12"; it allows the use of copper wires as small as "number 18." The local technical amendment to NEC Table 310.16 prohibits the use of aluminum wire smaller than the "number 1" size. Wire sizes are measured such that the smaller the number, the larger the wire. "Number 1" wire is relatively large, approximately one-half inch in diameter. (For sake of comparison, the wire received into evidence as Exhibit R3 is a "number 6" wire.) The effect of the amendment is to require copper wire to be used in applications involving wire smaller than "number 1." This, in turn, has the effect of increasing construction costs because aluminum wire is typically less expensive than copper wire of the same diameter. Aluminum wire has a higher resistance than copper wire of equal size. Corrosion of the wire increases its resistance, and because resistance creates heat, the chance of a fire is also increased. Copper wire and aluminum wire are both susceptible to corrosion. Aluminum wire has demonstrated capability. It is used in coastal communities throughout Florida and, more specifically, it is used by the power company within Port Orange and South Daytona in a variety of sizes (including smaller than "number 1") in outdoor environments. Aluminum wire functions effectively in those applications. Moreover, data reflects that aluminum wire, when used with approved connectors (as the NEC requires), is more durable than copper wire. The local amendment to NEC Table 310.16 discriminates against aluminum wire by prohibiting its use in a size smaller than "number 1." Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not justified. 6. NEC Section 336-4 (Limitation on Use of NM Wires) NEC Section 336-4 relates to the use of Type NM, NMC, and NMS wires. These non-metallic wires are typically referred to as Romex cable, which is a common brand name for the wires. The local technical amendment to this section restricts the use of Romex cable to one- and two-family dwellings, and prohibits its use in other structures -- e.g., commercial and multi-family -- unless it is routed through conduit. Romex cable typically consists of two to four wires wrapped in paper and all within a plastic sheath. It is used for internal wiring. Because Romex cable is used indoors and because it is protected within a plastic sheath, it is not directly subject to corrosive conditions or wind conditions. Respondents attempt to justify this local amendment upon safety concerns which, Respondents contend, are heightened in multi-family and commercial buildings since those buildings are typically not owner-occupied. To the extent those concerns are legitimate, they are certainly not unique to Port Orange and South Daytona. Romex cable has been used extensively for more than 30 years, and has proven effective. There is no evidence that Romex cable has ever failed on account of corrosive conditions, high wind conditions, or that its use in multi-family and commercial buildings is unsafe. The local amendment discriminates against Romex cable by providing additional standards for its use in multi-family and commercial buildings. 7. NEC Section 339-3 (Limitation on Use of UF Cable) NEC Section 339-3 relates to the use of underground feeder wire, which is also known as UF cable. The local technical amendment to this section restricts the use of UF cable to single-family residential property. UF cable is similar to Romex wire in that it is a group of wires inside a plastic sheath. UF cable is designed for use outside, and is most commonly used for wiring exterior lights. UF cable is installed underground. As a result, it is not impacted by wind conditions. UF cable is not subject to corrosion unless the plastic sheath is breached. UF cable is sometimes nicked after installation. In such circumstances, a breach in the cable would likely result in the circuit breaker being "tripped" and the cable no longer being energized. UF cable has demonstrated capabilities and has proven effective for external uses. There is no evidence that UF cable has failed on account of corrosive conditions. The alternative to UF cable is running standard wires through conduit. The conduit might protect the wires from being nicked by a shovel, but it might not protect the wire from being cut altogether by a backhoe or similar piece of large equipment which could break the conduit. The potential for damage to UF cable on account of digging by the property owner is a circumstance that can occur in any community in Florida. This amendment discriminates against UF cable by restricting its use to single-family residences and thereby effectively prohibiting its use in connection with all other types of structures. 8. NEC Section 680-8 (Prohibition on Wires Over Pools) NEC Section 680-8 is a table that establishes overhead clearances for wires. It provides height requirements for wires that run over swimming pools and surrounding areas. The local technical amendment to this section eliminates the table and, as a result, prohibits the installation of wires above existing pools and prohibits the placement of new pools under existing wires. Respondents have not attempted to justify this amendment based upon corrosive conditions, and it is not. The justification for the amendment offered by Respondents is that the amendment will prevent the wires from falling into and energizing the pool in the event of a hurricane or other the high wind condition. None of the witnesses who testified at the hearing, including those who testified for the Respondents, had ever heard of a situation where an overhead wire had fallen into and energized a pool. As a practical matter, swimming pools are no longer (if they ever were) constructed under overhead wires and overhead wires are no longer (if they ever were) strung over swimming pools. 9. NEC Section 680-11 (Protection of Wires in Swimming Pool Equipment Rooms) NEC Section 680-11 prescribes requirements for electrical wiring in swimming pool equipment rooms. The local technical amendment to this section requires such wiring to be placed in PVC pipe or other conduit designed for use in the chlorine environment. The amendment specifically prohibits plain galvanized and sheradized conduit which are metal pipes that are susceptible to rust and corrosion. The justification for the amendment offered by Respondents is that by requiring electrical wiring in the pool room to be placed in PVC or similar pipe, the risk of the wiring coming in contact with water (which is not uncommon in pool equipment rooms) is reduced. That requirement in turn, reduces the risk that a person in the pool room might be electrocuted by an ungrounded wire. Pool equipment rooms are highly corrosive environments because of the presence of chlorine, not because of atmospheric conditions. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not. 10. NEC Section 680-20 (Underwater Pool Light Voltage) NEC Section 688-20 allows underwater lights in swimming pools to carry as much as 150 volts. The local technical amendment to that section reduces the maximum allowable voltage to 15 volts. Underwater swimming pool lights are protected by glass and water-tight seals. If the pool water somehow comes into contact with the light bulb or its wiring, a ground fault interrupter (GFI) "trips" and shuts off the electrical current to the light. A GFI measures the amount of current going to a device and returning from the device. If there is a difference between the current going and coming, the GFI "trips" and stops electrical current from being delivered to the device on that circuit. The GFI used in connection with a pool light has two components. One is the "push to test" button located in the breaker box, and the other is the "test" and "reset" buttons located on an outlet in a bathroom, garage, kitchen, or similar location. Because of their locations, neither component is exposed directly to the weather. The purpose of the local technical amendment is to reduce the potential harm that a swimmer might suffer in the event that water came into contact with the pool light or its wiring and the GFI failed. To the extent that GFIs are susceptible to corrosion (and because of their location they are not likely to be), they are no more so susceptible to corrosion in Port Orange and South Daytona than they are elsewhere. In any event, if a GFI fails (because of corrosion or otherwise) it is not likely to fail in the "closed" position. Instead, it will fail in the "open" position and, in that position, no electricity is being delivered to the pool light. It is also possible that the GFI will fail if it is installed backwards. To the extent that a safety hazard is created by that failure, it is the result of the incorrect installation, not a local condition such as the corrosive environment or high winds. The newer GFIs are designed in such a manner that if the GFI is installed backwards, it will not work. Respondents have not attempted to justify this amendment based upon high wind conditions, and it is not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which determines that: Each of the local technical amendments adopted by the City of South Daytona fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001); and Each of the local technical amendments adopted by the City of Port Orange fails to comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
