Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact By Stipulation of the parties, it is found that Respondent is, and has been at all times material hereto, a certified roofing contractor in the State of Florida, having been issued license number CC-C015772. He is also known as Tony Gory, and was the qualifying agent for Roofing Technology, Inc., at all times material hereto. On or about August 16, 1982, Respondent submitted a proposal, on behalf of Roofing Technology, Incorporated, to Lillian Perper for roofing work to be done on her residence at 3616 Flamingo Drive, Miami Beach, Florida. Mrs. Perper accepted the proposal on August 17, 1982, and testified that the written proposal contained all terms and conditions of her agreement with Respondent. Respondent obtained the permit for this job on August 23, 1982. Mrs. Perper made timely payments to Respondent, under the terms of their agreement, totaling $11,057.00. Respondent completed the work in late September, 1982 and Mrs. Perper made her final payment on October 8, 1982. Respondent's agreement with Mrs. Perper included a warranty stated as follows: All workmanship and material to be guaranteed against defects for a period of ten (10) years; except for fire, termites, windstorm, or damages caused by acts of God. Within two months after completion of the reroofing, Mrs. Perper noted leaks in her livingroom and bedroom ceilings. She called Respondent, and-he came right out and 3 inspected her roof. He then sent a crew to Mrs. Perper's house and they attempted to locate and fix the leaks. However, they were not successful and the leaks continued. Mrs. Perper made several additional attempts to reach Respondent, but was not able to personally talk with him again about her roof. She did leave messages at his office that she was continuing to have leaks in her roof. In June, 1983, Respondent sent a crew of two men to Mrs. Perper's house to work on her roof. However, she denied them access to her roof because Respondent was not present, although they did identify themselves as roofers who Respondent had sent to repair her roof. Mrs. Perper was concerned that this crew would tear her roof off without Respondent being present to supervise the job. No additional attempts were made by Mrs. Perper to reach Respondent, or by Respondent to repair her roof, after she refused access to the roofing crew in June, 1983. The South Florida Building Code has been adopted as the building code of the City of Miami Beach. Regarding roof coverings, the South Florida Building Code provides that the building official shall be notified by the permit holder upon completion of the roof covering (Section 3401.1(b)(4)), nails should not be driven through the sheathing between supports (Section 3401.1(c)), mortar used to secure roof tile shall be sandwiched between all laps at all butts and along the sides of barrel tile (Section 3403.2(e)), roof tiles shall be secured to resist uplift forces (Section 3403.2(f)) and such tile shall extend beyond roof sheathing at the eaves (Section 3403.2(h)). An inspection of Mrs. Perper's roof conducted on February 25, 1985, by Robert B. Hilson, who was accepted as an expert in roofing and the installation of Spanish-S tile, indicates there were violations of several of the above provisions of the South Florida Building Code when he made his inspection, but there is no evidence that these violations were willful or deliberate, or that they were the result of work completed by Respondent in September, 1982. Between June, 1983, when Mrs. Perper denied access to Respondent's crew and February, 1985, when Hilson made his inspection, Mrs. Perper allowed a painter to go on her roof to see about her leak problem and to repair some flashing around her chimney. There is conflicting evidence concerning whether Respondent called for a final inspection after completing the roofing of Mrs. Perper's residence. Respondent testified that he did call for the inspection, but could offer nothing to substantiate his testimony. Petitioner called Oswald Ferro, building inspector, who testified that in the limited time he had available to him he could only find a record in the City of Miami Beach building department of one inspection on this job, but this was not a final inspection on this job. He had no personal knowledge about inspections on this job or whether Respondent had failed to call for a final inspection. Based upon the conflicting evidence presented and considering the demeanor of the witnesses, it is found that Petitioner has not established that Respondent failed to call for a final inspection.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued dismissing the Administrative Complaint filed against Respondent Frank A. Gory. DONE and ENTERED this 28th day of August, 1986 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin G. Brooks, Esquire 300 Hollywood Federal Building 4600 Sheridan Street Hollywood, Florida 33021 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1,2 Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 2. Rejected as irrelevant. 7,8 Adopted in Finding of Fact 3. Adopted in Finding of Fact 5, 6. Adopted in part and rejected in part in Finding of Fact 5, 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. 13,14 Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 5,7. Rejected in Finding of Fact 12. 17,18 Rejected as cumulative and unnecessary. Adopted in Finding of Fact 9. Rejected in Finding of Fact 13. 21-28 Rejected as not based on competent substantial evidence. Respondent did not timely file proposed findings of fact by August 26, 1986 as required by Order entered August 6, 1986, and therefore no rulings can be made relative to any proposed findings which may be submitted by Respondent.
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
The Issue The issue in this case is whether certain proposed amendments to Florida Administrative Code Rule 61G20-2.002 enlarge, modify, and/or contravene the cited provisions of law implemented, so as to render the proposed amendments invalid exercises of delegated legislative authority.
Findings Of Fact The Commission is the state agency responsible for the development and maintenance of the Florida Building Code under chapter 553, Florida Statutes (2017),1/ and chapter 61G20-2. The Commission is created as a distinct agency, but is located within the Department of Business and Professional Regulation for administrative purposes. § 553.74(1), Fla. Stat. The subject matter at issue in this case is the Florida Building Code update and amendment process, as recently changed in section 553.73. On November 15, 2017, the Commission published a Notice of Proposed Rule to substantially rewrite rule 61G20-2.002 (the proposed rule), “in order to conform with changes made to section 553.73” by the 2017 Legislature. FAAIA is a professional association representing roughly 2,700 architects licensed in Florida. These Florida-licensed architects are the overwhelming majority of FAAIA’s members. FAAIA’s Florida-licensed architect members are subject to the requirements of the Florida Building Code in the practice of their profession. A failure to comply with the requirements of the Florida Building Code exposes a licensed architect to discipline against his or her license, as well as potential liability for negligence. See, e.g., Seibert v. Bayport Beach & Tennis Club Ass’n, 573 So. 2d 889, 891 (Fla. 2d DCA 1990) (statutory remedy and common law negligence each provided independent basis for finding liability derived from architect’s violation of the building code); Juhn v. Dep’t of Prof’l Reg., 431 So. 2d 190 (Fla. 1st DCA 1983)(architect can be disciplined by licensing board for failing to comply with applicable codes). The subject matter of the proposed rule is within the scope of FAAIA’s representation of its members in the normal course of its business and activities. As a professional association, FAAIA routinely represents its members before the Florida Legislature as well as before state agencies, and in DOAH administrative proceedings on matters of policy and regulation of its members’ practice. On behalf of its members, FAAIA challenges two aspects of the proposed rule, asserting that in two respects, the proposed rule does not square with the “unambiguous” provisions of the 2017 law intended to be implemented. As the parties represented, FAAIA’s objections to the proposed rule present legal questions that must be answered by comparing the statutory language before and after amendment in 2017, so as to determine whether the proposed rule implements the amended law, as the Commission contends, or whether the proposed rule enlarges, modifies, and/or contravenes the amended law, as FAAIA contends. The parties offered no extrinsic aids as evidence to consider in interpreting the 2017 law, such as legislative staff analyses or other evidence regarding the 2017 legislative action. Instead, both parties contend that the statutory changes at issue are clear and unambiguous, albeit they manage to reach diametrically opposed interpretations of the “clear and unambiguous” statutory changes.
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
The Issue Whether Respondent, the County of Volusia, Florida, (the County or Respondent) 1 illegally discriminated against Pamela Allen (Petitioner) by refusing to issue a building permit for re-shingling Petitioner’s roof because of her race.
Findings Of Fact Petitioner is a Black female who resides at 4204 Quail Nest Lane, New Smyrna Beach, Florida (the Property), in Volusia County. The home was built in 1994 before the Florida Building Code (the Code) was first implemented. Petitioner purchased the home through a confidential auction in the Fall of 2019. At the time of purchase, Petitioner was living in Georgia and was aware that the Property was uninhabitable and in foreclosure. In order to purchase the Property at auction, Petitioner took out a loan from a private investment group. The loan’s conditions forbade Petitioner from moving into the Property until repairs to the house were complete and Petitioner obtained a conventional mortgage. In an effort to obtain a higher appraisal rate, Petitioner planned to do a shingle-over-shingle overlay of the Property’s roof. Hughlester Philip, a friend of Petitioner’s who lived in Georgia, agreed to help Petitioner with the shingle-over-shingle overlay. In early December 2019, Mr. Philip, with the help of his brother and a friend, began to place an overlay of shingles by placing shingle over shingle on the Property’s roof without a permit or inspection. Neither Hughlester Philip, his brother, nor his friend were Florida- licensed contractors, and neither of them had any ownership interest in the Property. A permit from the County was required prior to starting work on the roof. A stop work order (Stop Work Order) was issued by the County and posted in the yard of the Property for the re-roofing project on December 13, 2019, due to Petitioner’s failure to pull a permit prior to starting the shingle- over-shingle overlay. Neither Mr. Philip nor Petitioner were on the Property when Respondent posted the Stop Work Order. Petitioner does not know who placed the Stop Work Order in her yard. At the final hearing, Petitioner admitted that she should have obtained a permit prior to the start of the re-roofing project and that she was at fault for failing to obtain a permit before the work began. On December 13, 2019, after the Stop Work Order was issued, Petitioner went to the County to apply for a permit. Mr. Philip helped Petitioner complete the permit application. Prior to this permit application, Mr. Philip had never personally pulled a permit for a roof overlay in Florida or anywhere else. In fact, Mr. Philip had never applied for any type of permit in Florida. When Petitioner arrived to submit her application for a permit to the County, there were several women working in the office. This was the first time that Petitioner had any contact with anybody from the County. Petitioner was not asked about her race or gender as part of the permit application process. In her permit application, Petitioner specified that she sought a permit to re-roof her sloped shingle roof and that she did not intend to remove the existing roof. In other words, she intended to place shingle over shingle without removing the existing roof. As part of the County’s permitting process, once a permit application is filed, a plan review is performed. If any deficiencies are noted, the County automatically issues a request for additional information (Additional Information Request). County Plans Examiner, Harold Allen, was charged with reviewing Petitioner’s permit application. On December 19, 2019, the County issued Petitioner an Additional Information Request. The request, prepared by Mr. Allen, stated that Tom Legler would be performing an inspection of the project, and, quoting language found in section 706.3(5) of the Code, further stated: New roof coverings shall not be installed without first removing all existing layers of the roof coverings down to the roof deck where any of the following conditions occur: Where the existing roof is to be used for attachment for a new roof system and compliance with the securement provisions of Section 1504.1 of the Florida Building Code, Building cannot be met. Mr. Harold Allen had never met Petitioner, nor had he spoken to her on the phone prior to sending the Additional Information Request on December 19, 2019. The Property was built prior to implementation of the Code in 1994, and the County did not have any record of an inspection being done since then. The County’s main concern was Petitioner’s intent to install a shingle roof over an existing shingle roof without a County inspector being able to first verify that the underlying sheathing complied with current code. The Code is implemented by the State of Florida, not the County. The County has no authority to delete or change the Code. After receiving the Additional Information Request, Petitioner made several calls to the County. During these calls, Petitioner spoke to Mr. Allen and Chief Building Inspector Tom Legler. On one of the calls, Petitioner alleges that she heard Mr. Legler state to someone else that “those people are calling again about their roof.” Paragraph 29 of Petitioner’s Proposed Recommended Order suggests that Mr. Legler’s reference to “those people” was a racial epithet. That suggestion, however, is not supported by the evidence. At the final hearing, Petitioner testified that she did not know who Mr. Legler was speaking to and does not know why Mr. Legler referred to her as “those people.” The evidence was otherwise insufficient to show whether Mr. Legler was even aware of Petitioner’s race at the time the comment was made. During the same time period that Petitioner was calling the County in December 2019, Petitioner hired George Miles, a professional engineer, because she needed an engineer to certify that the work performed on the Property’s roof complied with the Code. Depending on the circumstances, the County has the authority to accept engineer certification letters on code compliance in lieu of conducting its own inspection. After inspecting the roof and noting that some areas needed repair, Mr. Miles prepared a letter certifying that the work that had been completed on the roof complied with the Code and that he planned to submit his letter to the County to consider in lieu of a County inspection. However, as there was a disagreement with the County as to whether the roof needed to be removed to comply with the Code, the County indicated that it would not accept the letter in lieu of inspection and Mr. Miles never submitted the letter. In attempting to resolve the disagreement over Petitioner’s permit application, Mr. Miles mainly spoke to Kerry Leuzinger, who is the Chief Building Official and Division Director of the County’s Building and Code Administration. Early on, in December of 2019, before the County sent Petitioner any letter regarding potential fines, Mr. Philip contacted roofing contractor David Schaare to ask how much it would cost Petitioner to reroof her Property. Mr. Philip advised Mr. Schaare of the Stop Work Order and need for a permit. Thereafter, Mr. Schaare evaluated Petitioner’s Property and estimated how much it would cost to reroof it. Mr. Schaare determined that the overlay was done incorrectly. According to Mr. Schaare, the roof work did not comply with the Code and Mr. Schaare advised Mr. Philip that “[e]verything would have to come off to be done correctly… .” At the final hearing, Mr. Schaare testified that he had never seen the County approve a shingle overlay for a roof in the same condition as Petitioner’s. Petitioner was on the phone during several calls between Mr. Miles and Mr. Leuzinger, but Petitioner did not speak. Mr. Leuzinger does not recall ever speaking with Petitioner on the phone and was not aware of Petitioner’s race at the time. Petitioner has never met Mr. Leuzinger face-to- face. In fact, Mr. Leuzinger was not aware of Petitioner’s race until he received notice of Petitioner’s Discrimination Complaint in January of 2021-- more than a year after Respondent issued the Stop Work Order and more than a year after Petitioner applied for a permit in December of 2019. Mr. Miles, Petitioner, and Mr. Leuzinger also discussed Petitioner’s permit application over email. On January 10, 2020, Mr. Miles emailed Mr. Leuzinger to advise of his interpretation of the Code and to ask if Respondent agreed with it. After several emails back and forth, and lack of consensus between them as to interpretation of the Code, Mr. Leuzinger advised Mr. Miles that Petitioner could appeal Respondent’s decision to the Volusia County Contractor Licensing & Construction Appeals Board (the Board) or request a binding interpretation from the Florida Department of Business and Professional Regulation (DBPR). On January 13, 2020, Respondent issued Petitioner a Notice of Violation regarding Petitioner’s failure to obtain required permits prior to starting the work on the Property’s roof. The Notice of Violation is a standard letter that Respondent sends to homeowners to notify them of a code violation and to notify them that Respondent could take further action if the homeowner fails to correct the violation. This was the only Notice of Violation that Petitioner received. Respondent did not issue Petitioner another Notice of Violation because Respondent was aware of Petitioner’s intent to appeal Respondent’s denial of a permit. On January 15, 2020, after speaking with Mo Modani, who works for DBPR, Mr. Miles emailed Mr. Leuzinger and advised that Mr. Modani’s opinion regarding the Code was consistent with the position advocated by Mr. Miles on behalf of Petitioner. Mr. Miles provided Mr. Modani’s name and phone number and asked Mr. Leuzinger to give him a call. Mr. Modani is a staff member who does not have authority over local jurisdictions with respect to enforcement of the Code. That same day, January 15, 2020, instead of calling Mr. Modani, Mr. Leuzinger responded with an email to Mr. Miles stating, “We have made our determination and it stands.” At some point, Petitioner decided to abandon efforts to obtain an overlay and instead hired Mr. Schaare to replace the roof. Although it is unclear from the record when the job was completed, once Mr. Schaare undertook the project, it took him approximately two days to replace the roof at a price of approximately $25,000. According to Mr. Schaare, the County inspector for the Property mentioned that he had made a bid on the Property when it was up for auction. Mr. Schaare could not remember the name of the inspector and he did not know if it was Kerry Leuzinger. Mr. Schaare related this information to Mr. Philip. Mr. Leuzinger was not the inspector for the Property and there is otherwise lack of sufficient evidence that would support a finding that “Kerry Leuzinger attempted to purchase the subject property while it was in Auction,” as alleged in the Discrimination Complaint. On January 30, 2020, Mr. Miles appealed the County’s decision to deny Petitioner’s permit for an overlay to the Board. The Board is composed of various professionals in the construction industry, none of whom are employed by Respondent. The role of the Board is to review cases to assess the reasonableness of the County’s decision. Petitioner’s appeal was held before the Board on March 4, 2020. Chief Plans Examiner Eric Gebo presented on Respondent’s behalf. Mr. Gebo never personally met Petitioner, never spoke with Petitioner, and did not know Petitioner’s race. Petitioner did not present to the Board, rather, Mr. Miles presented on Petitioner’s behalf. Mr. Leuzinger was not present. The discussion regarding Petitioner’s proposed roof-over lasted more than 30 minutes. The crux of the issue was whether the sheathing nailing on the roof could be verified as required under the applicable provisions of the Code. According to the County, because Petitioner’s home was built before the Code’s implementation and Respondent did not have evidence of a prior roof permit being pulled, the County could not verify that the underlying sheathing was ever inspected and could not verify that the sheathing complied with the Code without Petitioner first removing the existing layers of shingles. The position of the County on the issue was consistent with its decisions in other cases with similar facts. During the hearing, Mr. Miles stated that, “[w]hen it comes down to the simple truth of this is that it’s a difference of interpretation.” He also advised the Board that he “wanted to actually have [the State] make a recommendation on this … and they will not do it until [they] go through this process.” The Board members also discussed the need for clarification as to the Code. For example, while one Board member indicated that “the Code seems pretty clear,” another member asked Mr. Gebo for clarification because he believed that “[they] cover roofs all the time without tearing them off.” After further discussion, the Board, by unanimous vote, concluded that Respondent correctly denied Petitioner’s permit application. Even so, the Board encouraged Mr. Miles to seek a binding interpretation from the State because the wording in the Code “needs to be resolved.” On June 8, 2020, Mr. Miles filed a petition with DBPR on behalf of Petitioner requesting a binding interpretation of section 706.3 of the Code.2 Following a telephonic hearing held before the Building Officials Association of Florida, on July 7, 2020, a binding interpretation of the Code was entered agreeing with Mr. Miles’ interpretation that an overlay was permitted. The comment to the binding interpretation acknowledged that the wording of the section it interpreted “has created confusion.”
Conclusions For Petitioner: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 For Respondent: Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of September 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September 2021. COPIES FURNISHED: Ka'Juel Washington, Esquire The Washington Trial Group, PLLC Suite 500 37 North Orange Avenue Orlando, Florida 32801 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Erin G. Jackson, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602 Kerry Leuzinger, Director Volusia County Building and Code Administration 123 West Indiana Avenue Deland, Florida 32720 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Mauldin Coleman, Esquire County of Volusia 123 West Indiana Avenue Deland, Florida 32720 Ashley Tinsley Gallagher, Esquire Johnson Jackson PLLC Suite 2310 100 North Tampa Street Tampa, Florida 33602
