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 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
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a building contractor in Florida, he is required to successfully complete a certification examination. The examination is prepared by the ACSI National Assessment Institute arid administered by the Department of Professional Regulation (DPR). The questions on the exam are prepared from specific reference materials disclosed to the applicants, generally accepted industry procedures and standard field knowledge. Petitioner took the building contractor's examination administered by DPR in October, 1988. There were four parts to the examination. No evidence was submitted as to the scores an applicant was required to achieve and/or the number of sections an applicant was required to pass in order to be entitled to licensure. Petitioner did not receive a score on the exam sufficient to entitle him to licensure. However, no evidence was presented as to the grades Petitioner received on the various parts of his exam. Petitioner initially challenged seven of the questions on the Construction Administration part of the exam contending that they were unclear and ambiguous, and that, in any event, he correctly indicated the "closest" answer included for the multiple choice questions. However, for the reasons set forth in the Preliminary Statement above, only two of those questions (CA #19 and CA #24) are at issue in this proceeding. No evidence was of feared as to the value of each of the challenged questions and/or the number of questions Petitioner would have to succeed in challenging in order to obtain a passing grade. The first question challenged by Petitioner, CA# 19 required the exam taker to determine the latest time that a subcontractor could effectively serve a Notice To Owner under the Mechanic's Lien Law. The reference materials provide that the Notice To Owner must be served on the owner within 45 days from the time the lienor first performs labor or delivers material to the site. The reference materials also specifically provide that receipt of the notice on the 46th day is timely where the 45th day is a Sunday. A calendar was provided with the exam materials. The 45th day in question CA #19 fell on a Sunday (September 11). Therefore, the latest day that the Notice To Owner could be served was September 12. Both September 11 and 12 were listed as answers on the exam. Petitioner selected the answer corresponding to September 11. The correct answer was September 12. Petitioner's challenge to question 19 is without merit. Question CA #24 relates to AIA Document A201 and asks the examine taker to draw an analogy between a sub-contractor's responsibilities and obligations to the contractor as being the same as one of four listed choices. According to the Respondent, the correct answer 5 (C) which states that the sub-contractor has the same responsibilities and obligations to the contractor as the contractor has to the architect and owner. Petitioner chose answer (A) which indicates the contractor has the same responsibilities and obligations to the contractor as the architect has to the owner. In support of its position, the Respondent cites paragraph 5.3.1 of AIA Document A201 which states that "by appropriate agreement, ... the Contractor shall require each Sub-contractor, to the extent of the work to be performed by the Sub-contractor, to be bound to the Contractor by terms of the Contract Documents, and to assume towards the contractor all the obligations and responsibilities which the contractor by these documents assumes towards the Owner and Architect." Petitioner interpreted the question as asking the exam taker to draw an analogy between the relationship created by the sub-contract with the other relationships listed in the various answers. Viewed in this context, Petitioner reasoned that, while a contractual relationship existed between the sub- contractor and the contractor, AIA Document A201 specifically does not create a contractual relationship between the contractor and the architect. Therefore, he eliminated answer C and instead chose answer A because there clearly is a contractual relationship between the architect and the owner. Because the question was structured in the form of an analogy, it is misleading and ambiguous and Petitioner's interpretation was reasonable. Unfortunately, while the question was drafted to test the exam taker's familiarity with paragraph 5.3.1, it could also be read to be asking an exam taker to distinguish between the various relationships created through the contract documents. Significantly, the question does not specifically track the language of paragraph 5.3.1 which indicates that the sub-contractor must "assume" all the obligations and responsibilities which the contractor "assumes" towards the Owner and Architect. Therefore, the question is misleading and Petitioner's answer was reasonable under the circumstances.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his October, 1988 examination for building contractor's license be regraded be GRANTED and that Petitioner be deemed to have correctly answered question CA #24. DONE AND ENTERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. The Petitioner's Proposed Recommended Order contains a number of paragraphs of mixed findings of fact and conclusions of law which have not been numbered throughout. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact The first two and a half pages of Petitioner's Memorandum simply sets forth question CA #24, the "correct" answer as determined by Respondent and Petitioner's answer. These facts are incorporated in Findings of Fact 8. The Remainder of Petitioner's Memorandum is deemed by the undersigned to constitute legal argument. The Respondent's Proposed Finding of Fact Proposed Finding Paragraph Number in the Finding of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection Adopted in substance in Findings of Fact 4. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. Incorporated in the Preliminary Statement. Also adopted in substance in Findings of Fact 5. The first sentence is incorporated in the Preliminary Statement. The second sentence is subordinate to Findings of Fact 7 and 8. Incorporated in the Preliminary Statement. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 8. COPIES FURNISHED: Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste 60 Tallahassee, FL 32399-0792 E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Curtis A. Littman, Esquire Littman, Littman, Williams & Strike P. O. Box 1197 Stuart, Florida 34995 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Richard Eaton 2601 S. D. Miami Street Stuart, Florida 34997
The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's application for licensure in the category of mechanical plans examiner should be approved.
Findings Of Fact Based upon the testimony and evidence received at the formal hearing, the following findings of fact are made: Petitioner has been employed as a plans examiner for the City of Melbourne (City) since 1988. Petitioner has been a certified building plans examiner since 1994. She also holds certification as a standard and limited building inspector. Sometime in October 2003, Petitioner was informed that her limited plans examiner license, No. LP 369, had been permitted to expire on November 30, 1997, for failure to pay her renewal fee. The building official in her department at the City advised her that the renewal for the license had not been paid since 1996. It has been the practice of her department to automatically renew each of her licenses with the appropriate board, each year, as it came due, as a service to its employees. Why this one license, among several, was not renewed is unknown. After notification of the expiration of her limited plans examiner license, Petitioner immediately discontinued the review of electrical, mechanical, and plumbing plans and contacted the Department of Business and Professional Regulation (DBPR), reported the oversight, and requested directions on how to reinstate the limited plans examiner license, No. LP 369. No response was forthcoming; however, on October 27, 2003, DBPR issued an unsigned Notice and Order directed to Petitioner to cease and desist practicing as a limited plans examiner. Petitioner immediately complied and sought reinstatement. No formal disciplinary action was taken; however, reinstatement was denied on the grounds that her license had become null and void on November 30, 1997, pursuant to the self-executing language contained in Section 455.271, Florida Statutes. On January 3, 2005, Petitioner submitted an application to DBPR as a mechanical plans examiner. By Notice of Intent to Deny, dated July 18, 2005, DBPR notified Petitioner that it intended to deny Petitioner's application for licensure as a mechanical plans examiner. Citing Sections 468.607, 468.609, and 468.621, Florida Statutes, Respondent alleged that Petitioner did not have five years of combined experience in the field of construction, or a related field, or plans review corresponding to building plan review; that Petitioner did not provide an affidavit for each separate period of work experience from an architect, engineer, contractor, or building code administrator who has knowledge of Petitioner's duties and responsibilities; that Petitioner was employed by a local government authority without being properly licensed; and that she performed unlicensed activities in violation of the provisions of Chapter 468, Florida Statutes. Petitioner has shown that she satisfied the following requirements for licensure as a mechanical plans examiner. The evidence shows that: Petitioner is more than 18 years of age and is of good moral character; Petitioner has more than five years of combined experience in the field of construction and plans review; and Petitioner's application provided an affidavit for each separate period of work experience from a building code administrator who has knowledge of Petitioner's duties and responsibilities. Petitioner has more than adequate time in plans review, she did submit an affidavit of work experience signed by her building code administrator, and the administrator has a thorough knowledge of her duties. Building Official Alan Beyer, BU 383, certified to her years of plans review. Petitioner has been reviewing plans for the City since 1988. In 1994, based on her prior experience, Petitioner received a license as a limited plans examiner. Said license was allowed to expire through non-renewal and became void on November 30, 1997. Petitioner continued to perform her job until she was notified in October 2003 that her license had expired. Petitioner immediately discontinued the review of electrical, mechanical, and plumbing plans. Nevertheless, Petitioner performed activities during the period of 1997 through 2003, for which she was not licensed. However, the evidence is clear that Petitioner did not knowingly do so. Respondent has been previously licensed by Petitioner as a limited building inspector, a standard building inspector, and a standard building plans examiner. Each of these licenses has been maintained and is current, including the standard building plans examiner license, No. PX 838. Petitioner has no history of discipline in any of these areas, since 1993, the year the state first began to regulate this occupation. Petitioner has kept current the continuing educational requirements for each category for which she holds a license, including that of limited plans examiner. The subcategory of plumbing plans examiner was recently added to the standard building plans examiner license already held by Respondent. This subcategory required the same work experience (five-year combined experience) and affidavits signed by a building code administrator. The Board approved this addition to Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request to complete the requirements for future standard licensing as a mechanical plans examiner. DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2006.
