Findings Of Fact Daniel Fowler, a general contractor licensed in Florida (T. 289), qualified Raben-Pastal, A Joint Venture, under license No. CG CA15439 on August 15, 1980, and renewed the license for the period 1981 to 1983. Petitioner's Exhibit No. 1. At all pertinent times, he was employed as a construction superintendent for Raben-Pastal, at a residential development in the City of Coconut Creek known as The Hammocks at Coconut Creek, Phase II (The Hammocks), and answered to Paul Pariser, president both of Raben Builders and of Pastal Construction, Inc., and himself a general contractor licensed in Florida. Before construction began, Raben-Pastal secured a building permit for a two- story building (No. 280-81), Petitioner's Exhibit No. 2, on February 19, 1981, and for a four-story building (No. 344-81), Petitioner's Exhibit No. 3, on March 4, 1981. Respondent personally signed the applications, listing certificate of competency No. CG CA15439 on each. PLANS CHANGE After work had begun, Raben-Pastal decided on a change of floor plan for the two-story building. Their architect, Donald Bryan, approached James Cowley, Director of Planning and Zoning, and building official for the City of Coconut Creek. Mr. Bryan offered the building official an amended floor plan, but, after discussing it, the two men agreed that new elevations were involved as well as plumbing location changes, which should be reflected on additional drawings. Thereafter, Mr. Bryan "went back and submitted an entirely new set of working drawings and all of the architectural sheets to reflect" (T. 246) the changes. Eight or nine of the twelve pages in the amended application differed from the original application. The only structural change was in the balcony areas. (T. 238.) At the time the change of plans application was submitted on February 27, 1981, Petitioner's Exhibit No. 4, work on the two-story building had progressed through completion of the foundation. STOP WORK ORDER ENTERED On March 2, 1981, Mr. Cowley wrote and had delivered by hand a letter to "Daniel Fowler, Raben/Pastal" in which he stated: Please be advised that until such time that the Revised Plans have been reviewed and approved, permit #280-81 is suspended and that the previously approved plans are to be considered disapproved. All work on the building shall cease immediately. A notice to this effect will be attached to the permit board as of this date. While in all probability a new permit fee will not be necessary the standard plan examination fee shall be required prior to the resumption of work. For your reference, the following are the applicable South Florida Building Code 1/ Sections, 302.1(E), 302.4(H), 303.4 and 304.4 (A)(B). Petitioner's Exhibit No. 5. The following day, Mr. Pariser wrote Mr. Cowley, as follows: In response to your letter of March 2nd, it is our opinion that stopping work on the building under code numbers 301.3, 302.3, 303.4 and 304.4 is invalid. We have contacted both our architect and structural engineer and confirmed that the 2 story revised plans have no revisions to the super structure. Since for the next 3 weeks we are doing nothing but super structure work, and certainly within that time frame, you will have had enough time to process the revised plans, we will continue to build the building as per permit #280-81 with our independent inspector making inspections per the South Florida Building Code requirements. . . Respondent's Exhibit No. 16. Mr. Pariser wrote Mr. Cowley a second letter on March 3, 1981, to the same general effect enclosing a letter signed by the building's architect and an engineer, which "represent[ed] that there are no structural changes outside of a minor slab configuration." Respondent's Exhibit No. 17. On March 4, 1981, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, as follows: I am in receipt of your letter of March 3, 1981, wherein you stated the stop work order issued pursuant to my letter of March 2, 1981 was invalid. My position, of course, is that my action was not only valid, but in fact mandated by code. After meeting with your architect, Mr. Bryan, I propose the following solution. The stop work order will remain in effect for Construction only, i.e. steel re-inforcement, concrete, etc. could not be placed. Site work could continue i.e. soil preparation, filling, compacting, placing of batter boards, excavation for footings and forming. If the above meets with your approval, please acknowledge. Respondent's Exhibit No. 15. To this, Mr. Pariser responded the following day with this letter: In response to your letter of March 4th, the construction that we are proceeding with is just the very 1st floor lift of columns. That lift of columns is the same as shown on the plans for permit #280-81. There is no reason why you could not look at the set of plans you now have in your office for permit #280-81 and make a determination on the number of bars, sizing and location of same. I believe there is a total of 23 columns. Independent of this, you have already received a letter from our architect and an independent engineer stating that these columns will remain the same and you will have an independent engineer's inspection signed off on the permit card. My sincere appreciation for your understanding and return of this letter with your signature below acknowledging acceptance. If however, there is any further harassment in this matter, we will have no alternative but to invoke Chapter 71-575 Section 4 a of the South Florida Building Code, which states in part. . ."if any elected or appointed officials prohibit by any means, directly or indirectly, the use of any materials, types of construction and methods of design authorized by the code or alternate materials, types of construction and methods of design approved by the provisions of the Code, then the elected or appointed official may be removed from office for nonfeasance, misfeasance or malfeasance in office". . .Respondent's Exhibit No. 19. On March 10, 1981, the amended plans were approved. After still further correspondence, Mr. Cowley wrote Mr. Pariser, with a copy to Mr. Fowler, advising that "receipt of the required $200.00 Plan Exam Fee. . .re[s]cinded the suspension of Permit #280-81," Petitioner's Exhibit No. 8, effective April 7, 1981. STOP WORK ORDER VIOLATED By the time the stop work order was rescinded, the two-story building's superstructure was finished. No work accomplished before April 7, 1981, differed from that called for in the original plans. Through respondent and others, Raben-Pastal placed steel-reinforced concrete and performed other work in violation of the stop work order, without testing the validity of the order before the Board of Rules and Appeals or by initiating mandamus or other judicial proceedings. Respondent directed and participated in this work deliberately and with awareness that a stop work order was outstanding. At no time between March 2, 1981, and April 7, 1981, was anybody aware of the design defects that later came to light. STRUCTURAL PROBLEMS In late April of 1981, Coconut Creek's Mr. Cowley learned of cracking in concrete slabs around columns in both the two-story and the four-story buildings. By this time, roof slabs on both buildings had been poured, but neither ground slab had been finished. On the city's behalf, Mr. Cowley engaged D. E. Britt & Associates, consulting engineers, to examine the buildings. After Duncan Britt telephoned to say the buildings should be shored, Mr. Cowley orally advised respondent Fowler that shoring was necessary, on May 6 or 7, 1981. SHORING ORDERED On May 7, 1981, Mr. Cowley wrote and caused to be delivered by hand to Paul Pariser a letter in which he stated: I have just received instructions from Mr. Britt of D. E. Britt and Associates to the effect that a minimum of four shores must be placed around ALL columns in the above referenced buildings. Said shores shall be placed immediately and remain in place until such time that the structural adequacy evaluation has been completed. Petitioner's Exhibit No. 10. A copy of this letter reached Mr. Fowler on May 8, 1981. On May 11, 1981, Mr. Pariser replied: I am in receipt of your letter of May 7, 1981, please be advised that even though Raben-Pastal is respecting your wishes as to the reshoring, we would like to know specifically by what basis in South Florida building code you are requesting same. Also, what is the time frame which we can expect to have this lifted? Respondent's Exhibit No. 6. In a separate letter dated May 11, 1981, Mr. Pariser wrote Mr. Cowley: I take exception to the fact that you have predetermined that there are structural deficiencies. According to Mr. Bromley, our structural engineer, both buildings, as they stand now, are structurally sound. We, at Raben-Pastal, will stop work on anything that is related to column and plate slabs until the Britt analysis has been submitted. Respondent's Exhibit No. 8. Also on May 11, 1982, in response to a mailgram from respondent Fowler, Mr. Cowley wrote respondent to the effect that his order requiring shores around columns should not be construed as a stop work order. Respondent's Exhibit No. 7. A mailgram confirmation stamped received May 12, 1981, states, over respondent's name: Per your instructions requiring 4 post shores to be placed around our columns on building C-46 and C-47, Raben-Pastal will immediately commence this remedial work. Respondent's Exhibit No. 5. During this period, the engineers advising Raben-Pastal continued to believe that both buildings were sound and this was communicated to Messrs. Fowler and Pariser. FIRST-STORY CEILING SLAB ESSENTIALLY UNSHORED Mr. Cowley, Duncan Britt, Ron Thomas, and Henry A. Luten, Britt's chief engineer, among others, visited the site of the four-story building on May 14, 1981. The building was 240-feet long and had more than 30 columns; the slab on grade had still not been poured. The upper floors had been shored, possibly in the process of flying the forms, but there were no more than two or three shores in place underneath the lowest slab then poured, i.e., the first-story ceiling. If done properly, shoring would have begun at ground level with shores placed on the concrete pads around the columns; work would have progressed upward floor by floor; and no more than two or three shores a day, on average, would have been dislodged by the contraction and expansion of concrete in response to temperature changes. Shoring upper floors without shoring the bottom floor may have enhanced rather than diminished the risk that the building would fall. On May 15, 1981, Mr. Cowley wrote respondent Fowler, as follows: Yesterday, May 14, Mr. Britt, Mr. Ludin [sic], Mr. Thomas and I made an inspection of the above referenced buildings. We were appal[l]ed to find that our reshoring instructions had not been carried out on the ground floor of the four story building, permit number 344-81. Considering that a potentially hazardous situation exists, you leave me no choice but to issue the following order. YOU SHALL IMMEDIATELY SHORE THE GROUND AND SECOND FLOOR COLUMNS IN THE FOLLOWING MANNER: TWO (2) SHORES ON EACH SIDE AND ONE (1) ON EACH END. ALL SHORES ARE TO BE WEDGED TIGHTLY IN PLACE. GROUND FLOOR SHORES ARE TO BARE [sic] ON FOUNDATION. Failure to comply will result in a Stop Work Order which will remain in effect until such time the engineer of record, Mr. Arthur Bromley, determines what measures are required to correct the existing structural deficiencies. Petitioner's Exhibit No. 11. To this letter Mr. Fowler replied, also on May 15, 1981: Please be advised pursuant to your letter of today, that to the best of my knowledge we proceeded to a completed state, the shoring on both C-46 [the four-story building] and C-47 [the two-story building] per your request on May 7th. It may appear, without further investigation, that for whatever reason some of the shor[e]s may have come loose, however in your letter of May 7th, not received until May 8th, you asked for all columns in both the 2 story and 4 story buildings, with no mention of the bearing on the foundation. As you well know, your letter was untimely since we had poured our slab on C-47 on the 7th of May and have shored from the slab on grade, on certified compacted sub soil to the 1st raised slab. However in this new letter you are only asking for 2 floors of the 4 story building. Am I to understand that that is the total requirement? On May 7th your letter, specific in nature, required only 4 shor[e]s and this new letter requires 6 shor[e]s. Which is it? Respondent's Exhibit No. 10. The last hour of the working day on May 15, 1981, Mr. Fowler ordered all his men to spend shoring the four-story building. Just how much additional time was devoted to shoring was not clear from the evidence. On May 16, 1981, respondent Fowler wrote Mr. Cowley that "we have already expended. . .64 man hours in reshoring these buildings per your specifications." Respondent's Exhibit No. 11. At the final hearing, however, Mr. Fowler testified that, on May 7, 1981, "five men working on the two buildings [did] nothing but shoring. . .four of those men eight hours and one of those men for four hours," (T. 304-305) (May 7: 36 hours); on May 8, 1981, "seven men working on the shoring on the two buildings for a period of time varying between six and eight hours per man," (T. 305) (May 8: 42 to 56 hours); on May 9, 1981, "five men for half a day. . .[did] nothing but shoring on the two buildings," (T. 305) (May 9: 20 hours); on May 11, 1981, "five men working on shoring for a period varying between five hours and eight hours on the two buildings," (T. 306) (May 11: 25 to 40 hours); on May 12, 1981, "six men working on the shoring. . .one man at four hours and one man at five hours and four men at eight hours," (T. 306) (May 12: 41 hours); on May 13, 1981, "five men working on shoring. . .two for four hours and three for eight hours," (T. 306) (May 13: 32 hours); and, on May 15, 1981, seven men each working one hour (May 15: 7 hours). In short, respondent testified at hearing that 203 hours, at a minimum, were spent shoring both buildings from May 7, 1981, through May 15, 1981. This testimony has not been credited because of the witness's interest, because it exceeds by a factor of three the contemporaneous estimate or claim in Respondent's Exhibit No. 11, and because it does not square with the time sheets, Respondent's Exhibit No. 26, or with the progress reports, Respondent's Exhibit Nos. 27 and 28, on which Mr. Fowler purported to base his testimony. Mr. Goode was one of the workmen who eventually placed shores in the four-story building, working from the ground up. Read most favorably to respondent, Mr. Goode's testimony was that two men could shore one floor of the four-story building in seven hours. This, too, supports the view that Mr. Fowler's testimony about shoring was grossly exaggerated. The record is clear, however, that work of some kind, including work that was not shoring nor incident to the load test nor remedial took place on and under the four-story building between May 7, 1981, and May 15, 1981, thereafter. See Respondent's Exhibit Nos. 26-28; Testimony of Goode, Williams, Fowler. LOAD TEST As late as May 16, 1981, Mr. Pariser wrote Mr. Cowley that "Bromley's letter. . .coupled with the inspection reports list. . .should, beyond a doubt, put your mind, and anyone else's mind, at ease that the buildings. . .are structurally sound." Respondent's Exhibit No. 13. About a week later, a load test was begun by a testing laboratory using criteria agreed on by Henry A. Luten for the City and by Arthur H. Bromley for Raben-Pastal. In order to perform the load test, the shoring under two bays was removed and scaffolding was erected in its place. Afterward, the scaffolding was removed and shores were reinstalled. LAWYERS' MISUNDERSTANDING Construction at The Hammocks had received increasingly strident publicity, depressing sales of prospective condominium apartments. Raben-Pastal was concerned that premature disclosure of the results of the load test might aggravate the situation. John R. Young, Esquire, raised the matter with Paul Stuart, Coconut Creek's city attorney. Mr. Young proposed that the city be represented at the test by its consulting engineers but that no city employee observe the test, against the possibility that a Sunshine Law disclosure requirement would result in dissemination of a public employee's notes or report on the load test, before those conducting the test had been afforded time to evaluate the significance of things like cracks. Mr. Stuart agreed to communicate this proposal to Mr. Cowley and did in fact do so. Mr. Stuart left town, and Mr. Young eventually assumed that his proposal had been accepted. That it had been accepted, he told Mr. Pariser in Mr. Fowler's hearing as fact. Messrs. Pariser and Fowler were surprised to learn then, on the day of the load test, that Ron Thomas, chief building inspector of Coconut Creek, had accompanied Benjamin Eigner, an employee of D. E. Britt & Associates, to the site. Raben-Pastal employees confronted Mr. Thomas, at the edge of the property, and Lee Smith radioed Mr. Pariser's office. Mr. Fowler went to the scene of the controversy and Mr. Pariser telephoned the police. After the police arrived and while Mr. Fowler was talking to a policeman, Mr. Thomas started in the direction of the load test being performed on the second floor of the four-story building; Mr. Fowler ran toward the building and physically interposed himself, blocking Thomas's way. At this juncture, Mr. Fowler was arrested. He was eventually acquitted of criminal charges arising out of this episode. BUILDER'S ENGINEER STOPS TEST Mr. Bromley, who was also on site for the load test, recommended to Raben-Pastal that it be stopped before completion, because "the deflection was at a point that if there was anything further, it would cause permanent structural damage." (T. 234.) Most of the engineers involved later came to agree that there was insufficient post-tension cable in the slabs and that there was a "punching shear problem," a 122-percent "over-stress in the punching shear area." (T. 238.) Punching shear occurs when the "concrete that adheres around the column leaves the rest of the floor area or the floor area separates from the concrete that adheres to the column," (T. 235) with the collapse of the building a possible result. Raben-Pastal's own engineer testified at the hearing that, "It was a dangerous situation, yes." (T. 235.) (Widening the columns eventually remedied the problem.) SECOND STOP WORK ORDER ENTERED On May 28, 1981, Mr. Cowley wrote Mr. Pariser that he had visited the site on Sunday, May 25, 1981, found it deserted and "observed that the load test had very prudently been stopped slightly past the half way point." Petitioner's Exhibit No. 12. The letter continued: With this knowledge, I have no choice but to place you on notice that the above referenced buildings are unsafe and constructed in a dangerous manner. Pursuant to section 201.9 of the South Florida Building Code and more specifically the fact that over-stressing and a danger of collapse was emminent [sic] if loading were continued. During a meeting held on May 27, 1981, with Mr. Britt, Mr. Luten, Mr. Rodriguez, Mr. Bromley, Mr. Adams and myself in attendance, Mr. Bromley concluded that all work on the above referenced be stopped, with the exception of remedial repairs and additional testing if necessary until further notice. I am in complete accord and do so order. Petitioner's Exhibit No. 12. By the time Mr. Pariser received this letter, he had already ordered all work stopped on or under both buildings, except for shoring, testing, or remedial work. Neither he nor respondent ever authorized any work in violation of the stop work order of May 28, 1981. On June 1, 1981, the day after respondent returned from vacation, Mr. Thomas visited the site and observed and photographed a workman standing on the ground underneath the four-story building, even though respondent had personally ordered everybody to stay out except for replacing shores as necessary. On or before May 29, 1981, the scaffolding installed for the load test had been removed and most, but not all, of the shores had been replaced. Some rested, however, not on the concrete pads around the columns but on scrap lumber and pieces of plywood. Also on June 1, 1981, at least one workman went underneath the four-story building to fetch a piece of PVC pipe.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for six months. DONE AND ENTERED this 3rd day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of September, 1982.
The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
The Issue Whether Respondent committed the offenses described in the administrative complaints filed against him? If so, what discipline should he receive?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following findings of fact: General Information Edward Ryan is now, and has been since October, 1973, licensed as a Building Contractor by the State of Florida. He holds license number CB 0006481. Ryan has previously been disciplined by the Florida Construction Industry Licensing Board (Board). In July, 1987, prior to the issuance of the instant administrative complaints, he received a letter of reprimand from the Board. The Department of Professional Regulation has recently received additional complaints concerning Ryan. These complaints are currently under investigation. Ryan has been the qualifying agent for Gulf Chemical Contractors, Inc. (Gulf) since August, 1982. All ten of the instant administrative complaints involve projects undertaken by Gulf in Dade County, Florida. The South Florida Building Code (Code) has been adopted as the building code for both the incorporated and unincorporated areas of Dade County. The Code provides in pertinent part as follows with respect to the requirement of permits: It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building structure, or any part thereof; or any equipment, device or facility therein or thereon; or to change the Occupancy of a building from one use Group to another requiring greater strength, means of egress, fire and sanitary provisions; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code; without first having filed application and obtained a permit therefor, from the Building Official, validated by payment there for. EXCEPTION: No permit shall be required, in this or any of the following Sections, for general maintenance or repairs which do not change the Occupancy and the value of which does not exceed one hundred dollars ($100.00) in labor and material as determined by the Building Official. The Code further requires that the permit holder or his agent notify the Building Official of the completion of the project and call for an inspection of the work completed. Another requirement of the Code is that products such as air vent systems receive official approval from the appropriate Building Official prior to their installation. An experienced building contractor like Ryan doing business in Dade County should be aware of these requirements and should know that it is the responsibility of the general contractor of a project to make sure that these requirements are met. Case No. 89-2204 On May 2, 1987, Helana Lau and her husband entered into a written contract with Gulf. Gulf agreed to perform work on the Lau residence located at 2400 S.W. 15th Street in Miami, Florida, for which it was to be paid, pursuant to the terms of the contract, $11,450.00 by the Laus. The work that was to be performed on the structure included, among other things, the replacement of the roof and "any rotted wood on facia and soffits" and the installation of a "filter vent system." Gulf installed an aluminum air vent system for the Laus. The product used by Gulf had not received official approval prior to its installation as required by the South Florida Building Code. Furthermore, it posed a potential safety hazard. No official inspection of the contract work performed by Gulf on the Lau residence has ever been requested, notwithstanding that Gulf has long since terminated its work in connection with the project and vacated the jobsite. Case No. 89-2205 On December 29, 1986, Marvin Lichtenstein entered into a written contract with Gulf. Gulf agreed to texture coat Lichtenstein's home located at 2080 N.E. 171st Street in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,000.00 by Lichtenstein for performing this work. The contract contained a handwritten notation that "finances will be appr 10-11%" and that therefore Lichtenstein would have "a monthly payment of appr $71 or less" on the unpaid balance, which was $3,900.00. The contract also contained the following provision, which unlike the aforementioned notation was printed: This is an agreement by the parties mentioned herein to enter into an installment loan contract. The Purchaser requests that the Seller and the Seller's agents make the appropriate inquiries into the Purchaser's credit history and into the condition of the Title of the Property to be encumbered. The purpose of these inquiries is to see if the Seller may be able to arrange financing of the unpaid cash balance and what the terms of that financing may be. The purchaser agrees to accept any Home Improvement Contract presented by or thru the Seller, that has an interest rate less than the maximum current interest mentioned in the Florida Retail Installment & Sales Acts. The Purchaser agrees that all cost incurred by the Seller in connection with the payment plan will be paid by the Purchaser if the Purchaser refuses to accept that Home Improvement Contract. The work was performed by Gulf on the Lichtenstein home during the second week of January, 1987. Although a permit was required under the Code, it was not obtained prior to the commencement of the project or at any time thereafter. Furthermore, no official inspection of the work completed by Gulf has been requested. Following the completion of the work, Lichtenstein received from AmSav Financial, Inc., an Advance Notice of Acceptance and Intent to Purchase an FHA Title I Note. The document, which was dated January 14, 1987, provided Lichtenstein with the following information: We have found your credit to be satisfactory for a loan in the amount of $3,900.00 for a period of 60 months. Interest at a rate of 14.50% will be charged on the unpaid principal balance. Monthly payments will be $92.82. It is our intention to disburse the funds to the above mentioned dealer [Gulf] when all necessary documents, including a completion certificate indicating the work has been satisfactorily completed are received in proper order; but not earlier than six days from this date. It is not our policy to inspect all improvement projects we finance, so we want you to know that the selection of the contractor and the acceptance of workmanship and materials is your responsibility. You should insist on a copy of all instruments you sign and you should not sign the completion certificate until the contract has been fulfilled to your satisfaction. Contractors are not permitted to give cash rebates from the proceeds of this transaction nor are they permitted to make any payments for you nor any other type of incentive to buy. This commitment is good for 60 days only. If you have any questions regarding this transaction, or if we can be helpful in any way, please let us hear from you within six days from this date. Lichtenstein refused to accept this financing arrangement and, because he was dissatisfied with the work Gulf had done, withheld payment. He eventually settled this dispute with Gulf and paid the company $2,500 in accordance with the terms of the settlement agreement. Case No. 89-2206 On or about July 11, 1987, Al Childress, the supervisor of the Code Enforcement Section of the Dade County Building and Zoning Department, received a complaint regarding work purportedly done by Gulf on the Rojas residence located at 18105 N.W. 5th Court in Dade County, Florida. Childress thereafter inspected the premises and discovered that a three-ton air conditioning unit had been installed without a permit first having been obtained. He further ascertained that no formal inspection of the installed unit had been requested. Childress subsequently issued Gulf citations for "unlawfully commencing work on a[n] air conditioning installation without a permit" and "unlawfully contracting for work outside the scope of the certificate of competency." Case No. 89-2207 On January 12, 1987, Bryan Bitner entered into a written contract with Gulf. Gulf agreed to remodel and renovate the kitchen and other parts of the Bitner residence located 571 N.E. 175th Terrace in North Miami Beach, Florida. Pursuant to the terms of the contract, Gulf was to be paid $10,216 by Bitner. Work on the project began on February 14, 1987, and ended on April 20, 1987. Although given the opportunity to do so by Bitner, Gulf failed to finish the work it had agreed to perform and, without justification or notice, abandoned the project after having completed only 70% of the kitchen cabinetry work specified in the contract. Neither before nor after the commencement of work on the project were the required building, electrical and plumbing permits obtained. No official inspections of the work done in connection with the project have been requested. Case No. 89-2208 On December 19, 1985, Anthony and Anna Rabeck entered into a written contract with Gulf. Gulf agreed to perform roofing work on the Rabeck's home located at 447 East 7th Street in Hialeah, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,792.00 by the Rabecks. Gulf thereafter subcontracted with Louis Rusty Gordon of Rusty's Roofing to perform work on the project. Gordon performed the work, but was not paid the $600.00 Gulf had agreed to pay him. He therefore filed a lien on the Rabeck's residence in the amount of $600.00 and filed a complaint against Gulf and the Rabecks in Dade County Circuit Court seeking a $600.00 judgment against them. Gordon was ultimately paid the $600.00 by the Rabecks. A roofing permit was never obtained for the work that was done on the Rabeck residence. Furthermore, no official inspection of the work has ever been requested. Case No. 89-2209 On February 21, 1987, James Cox entered into a written contract with Gulf. Gulf agreed to texture coat and to add a screened porch to the Cox residence located at 11621 S.W. 183rd Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $5,700.00 by Cox. The texture coating was completed in late March, 1987. The screened porch was finished in early April, 1987. Upon completion of the entire project, Cox paid Gulf in full in accordance with their contractual agreement. Although a permit was necessary to commence the work on the Cox residence, it was never obtained. In addition, no one requested that the completed work be officially inspected. The screened porch was constructed by a subcontractor, Steve Buzzella. Prior to his undertaking this project, Gulf had agreed to pay him $2,200.00 for such work. Although he satisfactorily completed the project, Gulf did not pay him for his work. Consequently, he filed a lien on the Cox residence in the amount of $2,200.00. Buzzella has yet to be paid the money he is owed by Gulf and the lien remains in effect. Cox has retained legal counsel to assist him in connection with this matter and has already paid $175.00 in legal fees. Case No. 89-2210 On June 30, 1986, Adele Spiegel and her husband David entered into a written contract with Gulf. Gulf agreed in the contract to, among other things, texture coat the Spiegels' residence located at 7380 S.W. 116th Terrace in Dade County, Florida. Pursuant to the terms of the contract, Gulf was to be paid $4,500.00 by the Spiegels. The contract further provided that the Spiegels were to receive a "15 year warr[anty] on [the] tex[ture] coat[ing]" work. It also contained the following provision: Contractor guarantees that all materials furnished by it will be of standard quality, type and condition, free from defects, and will be installed, built or applied in a good workmanlike manner; said labor and materials guaranteed against structural and material defects. Gulf completed the project without obtaining the required permit. Furthermore, no official inspection of the completed project was ever requested. The Spiegels paid Gulf in full for the work it had done. The last of their payments was made on July 10, 1986, following the completion of the project. After this final payment was made, "dark stains" appeared on portions of the texture coating that had been applied to the gable end of the Spiegels' roof. In addition, some of the texture coating started to peel and crack. These problems were caused by the improper application of the texture coating. The Spiegels have advised Gulf of these problems. They have made numerous efforts to have Gulf honor its fifteen-year warranty and correct these problems. These efforts have been to no avail. Gulf has yet to take any corrective action, notwithstanding its obligation to do so under the warranty it gave the Spiegels. Case No. 89-2211 On February 18, 1985, Angelo Bertolino entered into a written contract with Gulf. Gulf agreed to texture coat Bertolino's residence located at 11730 S.W. 175th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,000.00 by Bertolino. Bertolino received from Gulf, as part of their agreement, a fifteen-year warranty on the texture coating similar to the one that the Spiegels were given. Assurances were given to Bertolino that any warranty work that was necessary would be done by Gulf. The Bertolino home was texture coated shortly after the contract was signed. In July, 1987, the texture coating began to crack and peel. Bertolino immediately contacted Gulf to apprise it of the situation and to request that it perform the necessary repairs in accordance with the terms of the warranty it had given him. Receiving no response from Gulf to this initial request, he telephoned the company's offices on almost a daily basis until September, 1987, when a Gulf representative came to his home and did some corrective work. A month later, the area that had purportedly been repaired started to again crack and peel. Bertolino has made Gulf aware of the situation and has sought on numerous occasions to have the company perform the warranty work necessary to correct these problems. Gulf has ignored these requests and failed to honor the warranty it gave Bertolino. Case No. 89-2212 On January 6, 1988, Edward Baum entered into a written contract with Gulf. Gulf agreed to texture coat Baum's residence located at 10921 S.W. 120th Street in Dade County, Florida. For this work, Gulf was to be paid, pursuant to the terms of the contract, $3,200 by Baum. The project was completed on January 13, 1988. Upon completion of the work, Baum paid Gulf in full. Textured Coatings of America, Inc. (TCA) supplied Gulf with $583.28 of materials that were used to complete the project. The materials were supplied on credit. Because it had not received payment for these materials, TCA, on March 4, 1988, after giving due notice to Gulf and Baum, filed a lien on Baum's residence in the amount of $583.28. TCA has yet to be paid for these materials and the lien is still in effect. Case No. 89-2213 On February 17, 1987, James Harris entered into a written contract with Gulf. Gulf agreed to install new windows in Harris' residence located at 9730 S.W. 167th Street in Dade County, Florida, for which it was to be paid, pursuant to the terms of the contract, $2,503.20 by Harris. The windows were installed in one day. Although one was needed, no permit was obtained prior to the completion of the project. Furthermore, no official inspection of the completed work has ever been requested. The windows were not installed properly. As a result, they do not close and lock as they should. Harris must put cement blocks on the outside ledges in front of some of the windows and then tape these windows shut to prevent them from falling open. Harris has unsuccessfully sought to have Gulf repair the windows.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Construction Industry Licensing Board enter a final order (1) finding Respondent guilty of the violations described in paragraph 7, 8, 11, 12, 14, and 16-24 of the foregoing Conclusions of Law; (2) revoking his license as punishment for these violations; and (3) dismissing the charges against Respondent discussed in paragraphs 9, 10, 13, and 15 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of September, 1989. STUART M. LERNER 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 8th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2204 THROUGH 89-2213 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department: 1-12. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence inasmuch as it suggests that Lichtenstein was obligated to, and did, make monthly payments of $92.82. Rejected for the same reason as 13, second sentence, above. 15-16. Accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence to the extent that it asserts that Rojas "had hired Gulf to install an air conditioning unit." Insofar as it describes the complaint received by Childress, it has been accepted and incorporated in substance. Rejected as not supported by persuasive competent substantial evidence inasmuch as it indicates that the work on the Rojas residence was performed by Respondent. First and second sentences: Accepted and incorporated in substance; third sentence: Rejected as more in the nature of argument than a finding of fact. First sentence: Rejected for the same reason as 18 above; second sentence: Accepted and incorporated in substance. Rejected for the same reason as 18 above. 22-28. Accepted and incorporated in substance. Rejected as beyond the scope of the charges to the extent that it addresses the quality of the work that was completed. In all other respects, this proposed finding has been accepted and incorporated in substance. First sentence: Accepted and incorporated in substance; second sentence: Rejected as not supported by persuasive competent substantial evidence. 31-32. Accepted and incorporated in substance. 33-34. Rejected as not supported by persuasive competent substantial evidence inasmuch as both of these proposed findings are based upon the premise that the Rabeck's paid Gulf in full. 36-44. Accepted and incorporated by reference. 45. Rejected as unnecessary, except for the last sentence, which has been accepted and incorporated in substance. 46-62. Accepted and incorporated in substance. 63. Rejected as unnecessary except to the extent it references the lien filed against the Baum residence. Insofar as it addresses said lien, it has been accepted and incorporated in substance. 65-66. Accepted and incorporated in substance. 67. First sentence: Rejected as unnecessary; second and third sentences: Accepted and incorporated in substance. 68-71. Accepted and incorporated in substance. COPIES FURNISHED: Gregory A. Victor, Esquire Jan L. Darlow, Esquire William Burke, Esquire Bayview Executive Plaza 3225 Aviation Avenue, Suite 400 Miami, Florida 33133 Edward Ryan 169 Lincoln Road Miami Beach, Florida 33139 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues presented for decision herein are whether or not the Respondent diverted funds from a construction project involved herein; violated local building codes and thereby engaged in misconduct in the practice of electrical contracting all in violation of Sections 489.533(1)(m), (f), and (i), Florida Statutes (1983).
Findings Of Fact Based upon my observation of witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. During times material herein, Respondent is and continues to be a registered electrical contractor having been issued license number ER004865. On November 28, 1983, Clell Villella, manager of Coral Castle, Inc., a tourist attraction, and Respondent entered into a subcontractual agreement for the installation of parking lot and outdoor lighting electrical connections to existing electrical services at the Coral Castle. The contract price was $26,600 and the parties agreed that the work would be-completed by January 1, 1984, the beginning of Coral Castle's peak tourist season. (Petitioner's Composite Exhibit 2 and testimony of Clell Villella). On December 8, 1983, Respondent was given an initial deposit of $6,600 to commence work. (Petitioner's Composite Exhibit 3). After Respondent was given the initial deposit he failed to appear at the Coral Castle to commence work on the project for approximately 30 days despite Manager Villella's constant prodding through phone calls. Respondent commenced work on the project during early January, 1984 and worked evenings for a period of approximately ten to twelve days on the project. After Respondent had worked on the project for approximately twenty hours, he abandoned it by failing to appear at the site for more than 30 days. Respondent failed to return Manager Villella's phone calls. When it became apparent that Respondent would not be returning to the project, Manager Villella hired Tierney Electrical Contractors, Inc., (Tierney) to complete the electrical work on March 7, 1984. Tierney submitted a proposal to complete the work in question for the sum of $36,500. (Petitioner's Exhibit 4). Tierney was requested to make some modifications to the work which Respondent had contracted to perform. Tierney estimates the added cost resulting from the modifications increased the value of his proposal by approximately $4,000. (Testimony of William Tierney). When Tierney commenced construction on the project, Manager Villella requested that he estimate the amount of the work that Respondent had completed. Tierney estimated that amount to be 13% of the project or approximately $2,226. Tierney's calculations were based on the fact that Respondent had installed approximately 643 feet of 3/4-inch rigid conduit. Based on the estimate of the work completed by Respondent, Coral Castle, by letter, requested Respondent to refund the $4,374 difference between the amount of the deposit initially tendered to him and the amount of work completed as estimated by Tierney Electrical Contractors. As of the date of the hearing, Respondent failed to respond to this demand or return any telephone calls from Manager Villella. At no time while Respondent performed the work in question for Coral Castle, Inc., had he (Respondent) applied for or obtained an electrical permit to perform the work in question. Respondent acknowledges that no permit was obtained for the work he performed at Coral Castle. However, he maintains that the common practice in the area is that permits are "pulled" after the work is completed or, in any event, prior to the first inspection; that it is permissible to commence construction except that a permit has to be obtained prior to the time when the job is either completed or the first inspection is due. However, a review of the pertinent sections of the South Florida Building Code, 1 1984 edition, reveals that it is necessary to first file an application for and obtain a permit prior to. commencement of construction. Chapter 3, Section 301, South Florida Building Code (1984 Edition).m
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent's license as a Registered Electrical Contractor be suspended for a period of one (1) year. Further, it is recommended that the suspension be stayed for a period of 30 days during which time the Respondent will be allowed an opportunity to enter into a settlement agreement with Coral Castle, Inc., and provided that such an agreement is made, that the suspension revert into a term of probation for a like period i.e., (1 year). Finally, it is recommended that the Respondent pay the Petitioner an administrative fine in the amount of $1,000. Recommended this 4th day of February, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, 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 4th day of February, 1986.
Findings Of Fact At all time material hereto, Respondent, Ronald J. Gurney, has been registered as an electrical contractor in the State of Florida, having been issued license number ER0004532, and held certificates of competency as an electrical contractor issued by Dade County and Broward County, Florida. By letter of July 25, 1989, Metropolitan Dade County charged the respondent with violating various sections of Chapter 10, Dade County Code. Specifically, such letter charged that between August 22, 1988, and June 16, 1989, with regard to jobs at 1520 Euclid Avenue and 531-41 16th Street, Miami Beach, Dade County, Florida, the respondent did: . . . violate Section 4505.5(a) of the South Florida Building Code (SFBC) by failing to obtain the mandatory rough inspection of work performed under Permit . . . said violation evidencing a failure to maintain the affirmative conditions of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. . . . unlawfully violate Section 10-22(b) of the Code of Metropolitan Dade County . . . [by] abandon[ing] without legal excuse . . . [such] . . . electrical job[s]. . . . . . . unlawfully violate Section 10-22(g) of the Code of Metropolitan Dade County . . . [by] fail[ing] to fulfill . . . [his] . . . contractual obligation to complete . . . [such] . . . electrical job. . . . Such letter further advised respondent that a formal hearing would be held on September 5, 1989, before the Construction Trades Qualifying Board (CTQB) to consider such charges, and what, if any, disciplinary action should be taken. On September 5, 1989, respondent appeared for the hearing, as scheduled, however, because the complaining witnesses did not appear, the CTQB continued the hearing. Thereafter, the hearing was rescheduled for November 21, 1989, and respondent did not appear. Notwithstanding, the CTQB proceeded with the hearing, and following its consideration of the evidence found that respondent had violated Sections 10-16(a), 10-22(b) and 10-22(g), Dade County Code, and issued a reprimand, fined respondent $2,500.00, suspended his certificates for three years, and revoked his certificates. By letter of December 1, 1989, Dade County advised respondent of the foregoing decision, and advised him of his right to appeal the decision of the CTQB. Respondent did not appeal such decision but, rather, filed a motion, through counsel, with the CTQB to vacate its decision based on respondent's contention that he did not receive notice of the November 21, 1989, hearing. Such motion was denied on January 9, 1990, and respondent did not appeal or otherwise seek review of such decision. At hearing, respondent offered proof, which is credited, that as a consequence of the action taken by Dade County he lost his position as Chief Electrical Inspector for the City of Hialeah; a position that paid $50,000.00 a year. Here, there was no suggestion or proof that respondent had previously been the subject of any prior disciplinary proceeding. To the contrary, the only proof of record on this issue was offered by respondent, and demonstrated that the action brought by Dade County was his first offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of having violated the provisions of Section 489.533(1)(n), Florida Statutes, which imposes an administrative fine against him in the sum of $250.00, and which places his license on probation for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1 & 2. Addressed in paragraph 1. 3-7. Addressed in paragraph 2, otherwise rejected as unnecessary detail. Addressed in paragraph 3. Rejected as not supported by competent proof. 10-14. Addressed in paragraph 3. 15-19. Addressed in paragraph 4. COPIES FURNISHED: Robert G. Harris, Esquire Senior Attorney Department of Professional Regulation 1620 Medical Lane, Suite 148 Fort Myers, Florida 33907 Ronald J. Gurney 11201 Southwest 55th Street Box 79 Miramar, Florida 33025 Daniel O'Brien, Executive Director Electrical Contractors Licensing Board Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
