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
Findings Of Fact Eduardo Kirksey is licensed as a certified residential contractor, holding license CR C012717. He qualified a corporation known as Modern Construction Company, Inc. (Modern) to engage in contracting.Modern entered into a contract on about July 28, 1986 with Ira Goldstein of 4440 Southwest 32nd Drive, Hollywood, Florida for construction of two-story room addition which would include a family room, bedroom and bath. Modern was to provide the plan by which the addition would be built. A rough sketch of the addition is included on the contract. More specific plans, which are similar to architectural drawings, were thereafter prepared for submission with the building application, which Modern filed with the Broward County Building and Zoning Enforcement Division. The contract was later amended to add a balcony around the second floor of the addition. The plans which are in evidence as Department Exhibit 4 are the second set of plans. According to these plans, the second floor bedroom had a 6" x 6" sliding glass door. The door opened on to a balcony which was created by cantilevered joists consisting of 2" x 10" pieces of lumber bolted to 2" x 12" rafters between the first and second floor. These 2" x 10" members extended out four feet from the building. According to the plans, 2" x 6" decking was to be placed across these joists, and an appropriate railing would then be placed around the balcony. Mr. Kirksey submitted the amended application for the permit and the plan to the Broward County Plan Review Board for approval, and it was approved. After construction began, Mr. Goldstein determined that he did not wish the floor of the balcony to be pressure treated wooden decking. Instead, he wanted a tile floor on the deck. Mr. Kirksey had already filed two sets of plans with Broward County on the project, the first for the addition without the balcony, and the second for the addition with the balcony. He did not want to file a third building permit application which would also require the submission of new drawings. Mr. Kirksey did agree to change the construction to accommodate Mr. Goldstein's desire to tile the balcony but declined to do the tile work himself as part of his contract with Mr. Goldstein. Mr. Goldstein was to arrange for the tiling of the deck. The original design for the decking would have spaced the 2" x 6" lumber which made up the decking with small spaces between each piece of lumber to allow water to fall through during rain. In order to lay tile down, it was necessary to place plywood across the joists, rather than 2" x 6" pressure treated lumber. Before the plywood could be laid, however, Mr. Kirksey had to remove the 2" x 10" cantilevered joists from between the first and second floor, because the original design called for those joists to be level. They were reinstalled at about a 1/2 inch slant so that the water would then drain from the balcony after it had been tiled. In addition, Mr. Kirksey then had to place soffit under the balcony, and put facia around the bottom of the deck. Neither the soffit nor the facia were required in the plans. Although it was more expensive for Mr. Kirksey to add these items, Mr. Goldstein was not charged any additional money for this work. The plywood that was put down over the 2" x 10" rafters instead of the pressure treated 2" x 6" lumber was 3/4 inch exterior grade plywood. Pressure treated plywood was not used because the plywood was to be covered with tile, and if properly tiled, pressure treated plywood is unnecessary. Moreover, even if tile is put over pressure treated plywood, if tile is not laid properly, the pressure treated plywood will rot as well as exterior plywood will rot. It would not have been possible to place tile over the 2" x 6" pressure treated lumber which the amended plan filed with the Broward Building and Zoning Enforcement Division had called for. The 2" x 6" members would shrink and move, causing the tile to crack. Some type of plywood had to be used instead of decking to permit Mr. Goldstein to tile the deck. The 3/4 inch plywood which Mr. Kirksey used met or exceeded the standards established by the South Florida Building Code. No sealant, or paint, was applied to the plywood, nor was the deck covered with visquine. Preparation of the plywood before the tile was placed over it would be the job of the person doing the tile work. An inspector from the Broward County Building and Zoning Enforcement Division visited the site on a number of occasions. During the course of those inspections some of the work was originally rejected by the inspector. For example, the balcony railing pickets had a spacing greater than 5 inches and the top of the rail was only 36 inches high, not 42 inches high. As a result of this rejection, the picket spacing and railing were changed. Ultimately, the inspector gave final approval after having seen the plywood deck, even though no new plans had been submitted to change the deck to have a plywood floor for tile rather than the originally permitted 2" X 6" pressure treated lumber deck. When the job was completed by Modern it was in the condition a project would normally have been left where the contractor was not responsible for laying the tile over the balcony floor. Because the floor was to be tiled, there was no reason for Mr. Kirksey to have painted the balcony floor. In addition, the contract did not require that any painting be done. Mr. Goldstein did the tile work on the deck himself although he had no prior experience in laying tile. Mr. Goldstein spoke with one of Modern's workmen about how to lay tile. This was an informal conversation, and Mr. Kirksey, the contractor, never advised Mr. Goldstein on how to lay tile. I do not accept the testimony of Mr. Goldstein that the employee of Modern who explained to him how to lay tile was the job foreman. Nothing in the contract with Modern required Modern to lay tile, or to advise Mr. Goldstein how to lay tile, so whether the person who discussed laying tile with Mr. Goldstein was a foreman is not significant. Sometime after all the work had been completed by both Modern and Mr. Goldstein, Mr. Goldstein's daughter Evette stepped out onto the balcony, and her foot and leg went through the balcony. This occurred because the plywood had not been sealed or protected before the tile was laid by Mr. Goldstein. As a consequence, the plywood had rotted under the tile. The rot also extended to the supporting joists. Broward County has adopted and incorporated into the Broward County Charter, Chapter 71-575, Laws of Florida, a Special Act of the Legislature. Both adopt for Broward County the "South Florida Building Code, Dade County 1970 edition, as amended." The Department included with its proposed recommended order portions of the South Florida Building Code, 1986 Broward County edition, for the purpose of demonstrating that the conduct of Mr. Kirksey violated Section 301(a) and 302.1(e) of that 1986 code. As a matter of evidence, the 1986 Broward County edition of the Southern Florida Building Code does not appear to apply. The Department's exhibit 7, which is "a copy of the Broward ordinance which adopts the South Florida Building Code" (Tr. 6) shows that it is the South Florida Building Code, Dade County 1970 edition which applies in Broward County. No portion of that document has been offered in the record of this case. As a consequence, there is no record evidence that Mr. Kirksey has violated a portion of an applicable code. It is true that Mr. Joseph Montagnino testified that Section 301(a) of the South Florida Building Code would not permit a change in a plan once it had been approved (Tr. 22, 104). In a case such as this, however, it is necessary for the Department to produce the text of the applicable building code, which has been adopted either by State statute or local ordinance. It cannot prove a violation through the testimony of a witness who merely characterizes his recollection of the text of an authoritative code. Moreover, other witnesses who are experts in construction trades in Broward County testified that it is common for inspectors to approve changes such as that made by Mr. Kirksey here, at the request of Mr. Goldstein, to substitute plywood flooring for pressure treated decking, without the need for amended plans or permits. (Tr. 75-77, 88- 89). Without evidence of the text of the applicable code, it is not possible to determine whether these experts, or Mr. Montagnino are correct. Since Mr. Goldstein, the homeowner, intended to do the tile work, it would not have been Mr. Kirksey's responsibility to pull additional permits for the tile work. At most, Mr. Kirksey's duty might have been to have obtained approval of amended plans, showing the slight pitch of the joists supporting the balcony floor, and the substitution of plywood and tile for 2" X 6" pressure treated lumber as the flooring for the balcony. Mr. Kirksey is in no way responsible for the inadequate preparation of the plywood surface for the application of the tile. Mr. Kirksey is in no way responsible for informal advice given by an employee of Modern, whose identity cannot be determined from the evidence in this case, to Mr. Goldstein about the proper way to prepare the plywood deck for tiling. Tiling was not part of the construction contract which Mr. Goldstein entered into with Mr. Kirksey's company. Mr. Kirksey is therefore not liable for inadequate supervision of employees on the job. Mr. Kirksey's employees performed the work required under the agreement which Modern had with Mr. Goldstein, as the parties amended it after the construction began.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board finding Eduardo Kirksey not guilty of the violations set out in Counts I, II or III of the Administrative Complaint. RECOMMENDED this 24th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of December, 1991.
Findings Of Fact The foregoing findings of fact 1, 2, and 3 are incorporated herein by reference as if fully set forth anew. On January 8, 1987, the Respondent was found guilty of violating Sections 489.129(2), 489.129(3), and 489.129(1)(g) Florida Statutes, by the Construction Industry Licensing Board in DPR Case No. 60987, DOAH Case No. 88- 0002. The Respondent was not present at that Board meeting. He asserted this was due to lack of timely notice of the Board's meeting. Respondent was fined $1,000 by the Final Order of the aforementioned Board filed/served on February 20, 1987. The Respondent has failed to pay the fine. Respondent has not appealed the final order or fine. Respondent expressed himself at formal hearing as intending never to pay the lawfully imposed fine.
Conclusions The foregoing Conclusion of Law 14 is adopted and incorporated herein as if fully set forth anew. Respondent is charged with gross negligence, incompetence or misconduct in the practice of contracting pursuant to Section 489.129(1)(m), Florida Statutes, for failure to pay his $1,000 fine pursuant to the Board's February 20, 1987 final order. However, Petitioner has cited no statutory or rule authority which labels a licensee's refusal to pay a fine or obey a final order of the Construction Industry Licensing Board as gross negligence, incompetence, or misconduct in the practice of contracting. (Emphasis supplied, see definition of "contracting" at Section 489.105, Florida Statutes). Without such authority, the factual allegations of the administrative complaint, although proved, support no conclusion that a statute or rule has been violated. Petitioner's recourse lies not in this forum but in enforcement, execution, and collection actions in Circuit court.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Construction Industry Licensing Board enter its final order dismissing the charge of a violation of Section 489.129(1)(m). DONE and RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-0275, 88-0732 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of Fact (PFOF). DOAH CASE NO. 88-0275 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is accepted in part in FOF 9. The remainder is rejected as mere argument or as based upon hearsay not properly in the record. DOAH CASE NO. 88-0732 Petitioner's PFOF have been accepted with certain modifications for greater clarity and to conform to the record as a whole. Respondent's Closing Statement is mere legal argument addressing the underlying facts of the previous final order finding Respondent guilty of certain violations and assessing a $1,000 fine. Absent a timely appeal, these matters are immaterial and rejected. These proposals are also rejected as mere argument. COPIES FURNISHED: Fred Seely, Executive Director Construction industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Norris 3144 Northwest 39th Court Lauderdale Lakes, Florida 33309 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent, Eugene Amrhein, is a certified roofing contractor, license number CC C020238, and was the qualifying agent for Knight Roofing, Inc. at all times relevant to these cases. On or about December 16, 1982, Respondent, conducting business through Knight Roofing Inc., contracted with Evelyn Nickerson for reroofing of a home at 707 N.E. 7th Street, Fort Lauderdale, Florida for a contract price of $1,485. She gave Respondent a downpayment of $785, and upon completion of the project paid the balance of $700. Respondent commenced work on the project without obtaining a permit, as required by Section 301.1(k), South Florida Building Code. Respondent also failed to obtain an inspection as required by Section 305.2(a), of this code. On or about March 10, 1981, Respondent conducting business through Knight Roofing, Inc., contracted with Judevilla Geria for the rebuilding of an existing flat tile roof for a contract price of $4,100. Respondent did not obtain the required building permit, in violation of Section 301.1(k), South Florida Building Code. Respondent did not perform the work contracted in that only a coat of paint was applied. He failed to rebuild the existing roof by recementing each tile, replacing rotten lumber, soffitt and fascia, nor did he replace approximately 50 tiles as required by the contract. However, Respondent has honored his warranty to Geria to the extent of repairing four leaks that developed subsequent to the work. On or about June 29, 1982 Respondent contracted with Golda Oxenberg to waterproof a roof at 3253 Foxcroft Road, Miramar, Florida. The contract price was $1,000. The project was completed and Respondent was paid in full. The Respondent violated Section 301.1(k), South Florida Building Code by failing to obtain a permit for this project. On or about August 22, 1983, Knight Roofing Inc., contracted with Joseph Castellano to repair the roof of a home at 1215 1st Street, Indian Rocks Beach, Florida. The contract price was $600, and included a two-year warranty. At no time was a licensed roofer present at the job site. David Ness, then an unlicensed individual, contracted for the work, performed the work, and received the payments. At no time did the Respondent supervise the work on the Castellano home. After completion, the roof began to leak. Respondent has not repaired the leak, despite his warranty. Respondent violated Section 108.2(d), Standard Building Code (adopted by Indian Rocks Beach Ordinance 291) by failing to obtain required inspections. However, no evidence was presented to show that Respondent violated Section 108.2(b), Standard Building Code, since a permit was obtained. Respondent has moved, but failed to notify the Construction Board of his new address as required by Rule 21E- 15.07, F.A.C. On March 7, 1984, Respondent contracted with Ralph Huff for roofing work at 3210 N.E. 9th Avenue, Pompano Beach, Florida. The contract price was $5,725, and the work was completed. Respondent admitted at hearing that he failed to follow up on his warranty agreement. Respondent did not violate Section 305.2(a), South Florida Building Code since a final inspection was obtained on October 25, 1984.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's license. DONE and ENTERED this 25th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER 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 25th day of June, 1985. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Beggs, Esquire BEGGS and VECCHIO 3012 East Commercial Boulevard Fort Lauderdale, Florida 33308 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202
The Issue Petitioner, Florida construction Industry Licensing Board (hereafter FCILB) seeks to revoke the building contractors license of Respondent, John N. Lambert (hereafter Lambert), on the ground that Lambert willfully or deliberately disregarded and violated applicable building codes of Metropolitan Dade County in violation of Section 468.112(2)(a), Florida Statutes. Initially, Lambert was also charged with abandonment of a construction project in violation of Section 468.112(2)(h), Florida Statutes. However, at the hearing, FCILB abandoned the charge.
Findings Of Fact Lambert is the holder of an inactive building contractors license number CBC009927 which legally qualified Lambert to act for Allstate Homecrafts, Inc., a corporation located in Miami, Florida, engaging in contracting work. Lambert was employed by the corporation but was not an officer or shareholder. On June 10, 1976, Lambert initiated a building permit application for work proposed to be done on the home of Mr. Nelson Tower. Mr. Tower had entered into a contract with Allstate Homecrafts, Inc., on June 4, 1976. The contract reflects that Mr. Neal Phillips acted as a corporate representative and not Lambert. The building permit was issued on August 11, 1976. On July 24, 1976, Allstate Homecrafts, Inc., contracted with a Mr. William Millman, and once again the contract reflects that Neal Phillips was the corporate representative and not Lambert. On September 13, 1976, and again on September 30, 1976, Lambert made application for a building permit with she City of Coral Gables, Florida, for the Millman job. Work was commenced on both projects. Work was still in progress on October 26, 1976, when Lambert wrote a letter to FCILB requesting that his qualification as contractor for Allstate Homecrafts, Inc., cease immediately. The reasoning given by Lambert, without further explanation, was that he could "in good conscience no longer comply" with Florida law regarding licensing of construction industry. Lambert further requested in the letter that he be requalified as an individual licensee. On the same date, Lambert terminated his employment with Allstate Homecrafts, Inc. The Tower project continued on until January, 1977, when it was abandoned by Allstate Homecrafts, Inc. The contract price was $30,000.00 and over $25,000.00 in draws were made. Five thousand dollars ($5,000.00) was drawn on November 2, 1977 $5,000.00 wad drawn on November 24, 1976, and $5,000.00 was drawn on December 16, 1976. These occurred after Lambert terminated his relationship with Allstate Homecrafts, Inc. After the contract was abandoned in January, 1977, Tower spent another $23,000.00 to finish the project. The Millman job continued until December, 1976, at which Lire it was abandoned at about 60 percent completion. A $10,000.00 draw was made on November 4, 1976, and a $5,000.00 draw was made on December 2, 1976. Millman spent an additional $10,000.00 to finish the project. Neither Tower nor Millman ever saw Lambert. All monies paid were given to other corporate representatives. While there was some evidence that violations of applicable building codes did occur, there was a complete absence of evidence to establish that Lambert willfully or deliberately disregarded the South Florida Building Code 4501.2(d)(4); failure to correct an electrical hazard. On February 2, 1978, the Dade County Construction Trade Qualifying Board reported that it had found that there was a prima facie showing of the charges brought against Lambert.
Findings Of Fact At all times pertinent to these proceedings, Hamilton held registered residential contractors license number RR0015037. Hamilton agreed to construct a house in Clearmont, Florida, with a completion date no later than May 1, 1977, for Robert J. and Margaret M. Phlepsen. The construction price was $75,000.00. After construction of the house it was discovered that there existed two violations of the Southern Building Code. First, the "step-down" from the kitchen to the garage was an eleven inch riser contrary to the code requirement that the height of a riser shall not exceed seven and three quarters inches. The second violation occurred through the use of 2 X 8 joists where the code would require 2 X 10 joists. The extra high riser between the kitchen and the garage was apparently caused by an oversight. Hamilton merely failed to install an intermediate step at that location. The second violation occurred because the owner and Hamilton agreed to use the smaller joists in order to save money on the contract price. In neither case is there sufficient evidence to establish that Hamilton's violations were willful or deliberate as alleged in the Administrative Complaint. On June 6, 1978, the Lake County Board of Examiners suspended Hamilton's Lake County Certificate of Competency because of violations of building code requirements in the construction of Phlepsen's house.
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 Based on the exhibits received in evidence, and on the testimony of the witness at the hearing, I make the following findings of fact. The Respondent, Gerald Z. Hickey, was issued license number ER0008796 by the Electrical Contractors' Licensing Board on November 11, 1983. This license has never been suspended. However, this license expired on June 30, 1984, and is now in a delinquent or "inactive" status. On March 10, 1985, Gerald Z. Hickey was the electrical contractor at an electrical job located at 1500 N.E. 162nd Street, North Miami Beach, Dade County, Florida. On that date at that job location no journeyman electrician was present, but electrical work was being performed by an unlicensed person. On that date at that job location Gerald Z. Hickey was using a temporary service to supply ungrounded and unfused conductors and receptacles at the job site. On that date at that job location receptacles were installed without a Ground-Fault Circuit Interrupter and without a grounding conductor. On that date at that job location Gerald Z. Hickey had failed to provide Ground-Fault protection for personnel at the construction site. These conditions at the job site created a risk of serious injury or death to employees at the job site. As a result of the facts described in the preceding paragraph the Construction Trades Qualifying Board (CTQB) of Metropolitan Dade County brought charges against Gerald Z. Hickey, alleging that the facts described above constituted violations of various specified provisions of the Code of Metropolitan Dade County, of the South Florida Building Code, and of the National Electrical Code. Gerald Z. Hickey entered a plea of guilty to the charges brought against him by the CTQB. The decision of the CTQB was to find Gerald Z. Hickey guilty and to fine him a total of $7,500 and to suspend his certificate of competency for a period of one year. The Code of Metropolitan Dade County, the South Florida Building Code, and the National Electrical Code are all applicable to electrical contracting jobs in Dade County, Florida.
Recommendation Based on all of the foregoing, I recommend that the Electrical Contractor's Licensing Board issue a Final Order to the following effect: Dismissing Counts Two and Three of the Administrative Complaint. Concluding chat Gerald Z. Hickey has violated paragraphs (f) and (n) of Section 489.533(1), Florida Statutes, as charged in Count One of the Administrative Complaint and Imposing on Gerald Z. Hickey a penalty of an administrative fine in the amount of $1,000 and suspending the license of Gerald Z. Hickey for a period of one year. DONE AND ORDERED this 19th day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 19th day of July, 1985. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Gerald Z. Hickey 10000 Bahia Drive Miami, Florida 33189 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry W. Hendry, Executive Director Electrical Contractors Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
