Findings Of Fact At all times material hereto, Respondent has been a certified air conditioning contractor, holding License No. CAC009065, and has been the qualifying agent for Residential Air Conditioning Corporation (hereinafter "Residential Air") in Miami, Florida. On October 1, 1985, Residential Air entered into a contract with June Davidson to install air conditioning in her mother's house in the City of Miami on a rush basis because of the health needs of the elderly mother and because Davidson needed to return to New York. Residential Air's salesman was told by Davidson that a medical emergency situation existed for the Davidson job. The following notation appears in the comments section of the contract signed on October 1, 1985: "Please rush this job--woman needs a/c for health ... woman going back to New York--mother needs job." In the contract addendum signed on October 2, 1985, it was noted that Davidson was waiving her 3-day rescission rights because of the medical situation in the family and that the air conditioner needed to be installed immediately. Respondent was out of town on vacation at the time and was not scheduled to return for several days. Respondent has done job drawings and pulled permits for the company over its 16 years of existence. It was Respondent's practice to pull all permits necessary to cover the next several weeks before going on vacation. As a special accommodation to the customer in an emergency situation, Richard Vanni, a part-owner of Residential Air with 30 years of experience in air conditioning installation, assembled a crew to install the system for the Davidson job on October 2, 1985. Mr. Vanni assumed that Respondent would pull the permit on a late basis when he returned from vacation. The ordinance adopting the South Florida Building Code in the City of Miami provides for a late fee in the event an application for job permit is filed after the job begins. It was Mr. Vanni's understanding that in rush or emergency situations legitimate contractors could proceed with work and file late for the permit, that this was acceptable to the various municipal building departments in the south Florida area, and that most building departments are fair in the administration of permit laws and allow appropriate latitude to responsible contractors proceeding in good faith. No evidence was presented that Mr. Vanni or Residential Air had any intent to avoid paying a permit fee, including the appropriate late penalty, or to evade final inspection when the job was completed. Respondent, as qualifying agent for Residential Air, regularly procures permits for all of the company's jobs, and the company is a highly responsible air conditioning contractor. Conner Adams, the Chief Mechanical Inspector for the City of Miami, is aware of no code violations or previous late penalties regarding Respondent or Residential Air and recalls no problems of any kind with Respondent or with the company. Respondent's only previous violation of the state contracting laws involved payment to the Department of Professional Regulation of a small stipulated fine to settle a highly technical charge of using the word "company" instead of the word "corporation" on its contract form prepared by its attorney. The air conditioning unit for the Davidson job was installed with a temporary hook-up which was to be followed by an audit inspection by Florida Power & Light Company and an increase in the electrical service by the electrical subcontractor. The increased service was not done because the customer stopped payment on her check and would not let the company back on the premises. When Respondent returned from vacation a few days later, he immediately became immersed in accumulated office problems and the problem created by the Davidson job. He tried to pacify and accommodate Davidson by visiting the premises and proposing compromises. No one called to Respondent's attention the fact that the Davidson job was not yet permitted. Respondent was not focusing on that issue, and with the other problems engrossing him, it simply slipped his mind to inquire or to check. 12. As Respondent explained, it would be absurd for him to intentionally not procure a permit for a job involving electrical service increase or customer problems. Lack of a permit is readily discovered in such instances and may provide an excuse for the customer to try to avoid payment. Mrs. Sylvia Vanni, wife of co-owner Richard Vanni, is and has been the office manager of Residential Air. Her system has been to place pending job orders and contracts into a "3-day rescission file." After the 3-day rescission time has elapsed and payment arrangements have been made, the job orders or contracts are routinely given to Respondent to pull permits for those jobs. Because Respondent was not present when the Davidson job was undertaken, the contract was not then given to him to pull a permit. When the job was started, Mrs. Vanni mistakenly placed the contract into the "jobs in progress" file, and it was never presented to Respondent to pull a permit after he returned from vacation. The electrical subcontractor also did not notify Respondent of the need for a permit. Since the company was not allowed back on the premises, the electrical subcontractor was not called upon to apply for an electrical permit to increase the electrical service, which would have called Respondent's attention to the need for a mechanical permit. The system and procedures normally relied upon in the office did not function to alert Respondent to apply for a permit on the Davidson job. When the City of Miami Building Department contacted Respondent pursuant to Davidson's inquiry whether a job permit existed, Respondent immediately made application, paid the late fee, and obtained a mechanical permit on November 5, 1985. Respondent's plans and drawings for the job were deemed satisfactory by the City of Miami Building Department. No evidence was presented of any intentional or willful disregard of, or obstinate indifference to, the building permit laws. Respondent's delay in obtaining a late permit after he returned from vacation was caused by simple oversight in the midst of trying to satisfactorily resolve a difficult customer problem in that no one advised him that a permit had not been pulled or that the Davidson job was not one for which he had pulled a permit prior to going on vacation. The initial charging document in this cause is an Amended Administrative Complaint signed on August 24, 1987. The charges in the Amended Administrative Complaint are the same charges that were contained in an Administrative Complaint filed by the Petitioner against Respondent on July 24, 1986. That complaint was voluntarily dismissed by Petitioner on February 10, 1987, just before the final hearing scheduled in that case for February 16, 1987. Petitioner's probable cause panel met on August 12, 1987, and approved the filing of the Administrative Complaint which became the initial charging document in this cause. The probable cause panel was not told that charges related to the same matter had been dismissed by the Department six months earlier. Indeed, no explanation or discussion of the charges occurred at all. There was only an approval of the prosecutor's recommendation, and the entire discussion of the probable cause panel regarding the existence of probable cause to file the Amended Administrative Complaint consists of the following exchange: MR. SHROPSHIRE [agency attorney]: The next case is against Mr. Heisler, No. 65634. Prosecutor recommends a finding of probable cause and the filing of a formal complaint. MR. CARSON: I'd like to make a motion we accept the prosecutor's recommendations. MR. SUTTON: Second. MR. CARSON: All in favor say aye. MR. SUTTON: Aye. MR. CARSON: All opposed? MR. SHROPSHIRE: The next case is ... Whether probable cause was properly determined was reserved in the Prehearing Stipulation as a issue for determination at the final hearing in this case. No evidence bearing on the probable cause determination was offered by the Department. The charges in the Amended Administrative Complaint were brought (signed) on behalf of the Secretary of the Department of Professional Regulation by Douglas A. Shropshire, an attorney and the Tectonics Section Chief. Whether Mr. Shropshire had authority to institute the complaint on behalf of the Department was also reserved as an issue for final hearing. Mr. Shropshire is not the head of the agency. The Department offered no evidence of his designation to act for the Secretary in regard to instituting disciplinary charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing with prejudice the Amended Administrative Complaint filed in this case. DONE and RECOMMENDED this 10th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 10th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4452 Petitioner's proposed findings of fact numbered 1-10 have been adopted in substance or verbatim in this Recommended Order. Respondent's proposed findings of fact numbered 1-27 have been adopted in substance or verbatim in this Recommended Order. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 M. Stephen Turner, Esquire Post Office Box 11300 Tallahassee, Florida 32301-3300 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By Warranty Deed dated July 2, 1982, petitioner was conveyed "Lot 151, Less the South 1/2 thereof" in Glenwood Subdivision. Lot 151 is presently zoned RS-50. The minimum lot area per dwelling unit in an RS-50 district is 5,000 square feet. Section 131.044, Code of Ordinances of the City of Clearwater. According to the subdivision plat, Glenwood Subdivision contains 154 platted lots, with an average lot size of 8,844 square feet. The smallest platted lot in the subdivision is 6,000 square feet. Lot 151 contains approximately 12,000 square feet. There is an existing single-family dwelling on the southern portion of Lot 151 which portion contains 7,700 square feet. Computations performed from a metes and bounds description of the northern part of Lot 151 which was conveyed to petitioner illustrates that petitioner's portion of Lot 151 contains 4,320 square feet. Section 20-2 of Ordinance No. 1449 provides, in part, that: ". . .Building permits shall not be issued for structures located on subdivided property created subsequent to the adoption of this Ordinance unless such plat of record is recorded in the Public Records of Pinellas County. The City Commission may permit lots of record to be cut in size to not less than the zone permits, without requiring a replat." No request was made to and no approval was given by the Clearwater City Commission to divide Lot 151, a platted lot. The restrictions for Glenwood Subdivision require that only one single- family dwelling house be erected on any single lot or plot. In August of 1982, petitioner applied to the Building Inspection Department of the City of Clearwater for a building permit to erect a single- family residence on his property. Apparently, a survey of the property did accompany the application, but no one in the Building Inspection Department verified the lot size. Petitioner was issued a building permit. Prior to October 27, 1982, petitioner had the land cleared, made soil boring tests, paid water meter fees, laid pilings and had the foundation and walls in place for the lower level of his new residence. The costs of this work, and other expenses related thereto, amounted to some $18,350.00. On or about October 27, 1982, the City issued a "red tag" on the project because it was discovered that petitioner's lot size was substandard. This was the first notification petitioner had of any problem with his lot size. He had never made inquiry concerning the zoning requirements for his lot. Petitioner continued construction on his residence. Two more "red tags" were issued on or about November 2 and November 25, 1982. On the latter date, petitioner was ordered to stop work on the project. Petitioner estimates that between August, 1982, and the date of his hearing (January 26, 1983), he expended approximately $40,710.00 on the purchase of his land and the partial construction of his residence. As noted in the Introduction, petitioner's application for a variance from the lot size requirements was denied by the City's Zoning Enforcement Officer, his appeal to the Board of Adjustment and Appeal on Zoning was denied and the instant proceeding resulted.
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue in this case is whether the Construction Industry Licensing Board should discipline the Respondent, Ysidro Cid Fernandez, on the basis of the charges alleged in the Administrative Complaint which the Petitioner, the Department of Professional Regulation, filed against him on November 30, 1987.
Findings Of Fact The Respondent, Ysidro Cid Fernandez, is licensed as a certified roofing contractor in the State of Florida, holding license number CC-C029602. The Respondent's license was in effect at all times referred to in these Findings of Fact. On or about March 15, 1986, an employee of Sunshine Solar and Roofing, a roofing company for which the Respondent acted as qualifying agent, entered into a contract with Fred Chambers to re-roof a house Chambers owned at 5871 64th Terrace North, Pinellas Park, Florida. The house was a small house, with not more than 1000 square feet of living area, and the contract was to re-roof the entire house for $600 plus tax ($31.50). The shingles to be used were to be 20-year shingles. The contract also provided: "Install on front F/S [far side] 8' long 5" wide T/G [tongue in groove] board." The Respondent's company did the work in April, 1986. Chambers paid the full amount of the contract, $200 down and the balance on or about May 1, 1986. Despite the re-roof, the roof still leaked where it did before the work was done. When Chambers called for warranty repair work, the Respondent refused until Chambers paid what the Respondent said was the cost of extra work the Respondent claimed Chambers had had the Respondent's workers do. The Respondent first came to the opinion that extra work had been done after he received invoices from his supplier indicating that his employees had ordered 1600 square feet of shingles for the job. The Respondent asserted that the contract called for only the front far side of the roof to be replaced. He bases this interpretation of the contract on the language quoted in the last sentence of Finding 2, above. The Respondent claimed that 1600 square feet was twice as much shingle as would be needed to re-roof half of the existing roof. Regardless whether the Respondent's employees ordered too much shingle for the Chambers job, or where the extra shingle might have gone, if not on the Chambers roof, the contract provided for the entire Chambers roof to be replaced for the contract price. The Respondent was not justified in demanding additional money before doing warranty work. The City of Pinellas Park, Florida, the governmental entity with jurisdiction over the Chambers job, required that a building permit be obtained before commencing the Chambers re-roofing construction. The City of Pinellas Park also required inspections of the Chambers re-roofing job. The Respondent claimed to have timely obtained a building permit for the Chambers job and, in testimony at final hearing, detailed an elaborate story about how he went about getting one. But the Respondent's own evidence, in the form of late-filed Respondent's Exhibit 2, establishes that he did not apply for the building permit until December 17, 1987, after receiving notice through the November 30, 1987, Administrative Complaint in this case, that the Department was charging him with failure to obtain a building permit for the job. Not having obtained a building permit, the Respondent did not call for the required inspections for the job. The evidence did not prove that the Respondent was grossly negligent or incompetent in estimating the cost of the Chambers job. First, the evidence did not prove that the job was seriously underestimated; to the contrary, the evidence tended to show that the Respondent's employees ordered more material than needed for the job. (When this came to the Respondent's attention, he unfairly blamed Chambers for having his employees do extra work not called for by the contract.) Second, the Respondent had nothing to do with the cost estimate on the job. The Respondent's price per square foot of roof area was fixed; he depended on his employees to accurately measure the size of the roof being priced. There is no evidence how the Respondent went about training his employees to measure a roof for purposes of a cost estimate. The Respondent has been disciplined by the Construction Industry Licensing Board once before. He received a reprimand in August, 1987, for failure to obtain a building permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a final order suspending the Respondent's license for one year and fining the Respondent $2,500. RECOMMENDED this 25th day of July, 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0570 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): Rejected in part (the Respondent's name is not Thomas L. Jackson); otherwise, accepted and incorporated. Accepted and incorporated. Rejected in part; the evidence did not prove that the roof was unfinished or that the roof was done correctly or that the work was done incorrectly, only that it leaked after the work was done. 4.-6. Accepted and incorporated. Rejected as not proven by the evidence. (See 3., above.) Accepted and incorporated. COPIES FURNISHED: David Bryant, Esquire 13014 North Dale Mabry Suite 315 Tampa, Florida 33618 Ysidro Cid Fernandez 2700 North McDill Avenue Suite 204 Post Office Box 4726 Tampa, Florida 33607 Ysidro Cid Fernandez 8109 Rivershore Drive Tampa, Florida 33604 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
The Issue Whether the signs of Respondent are in violation of Chapter 479, Florida Statutes, for having added lights and increased the size and for having no permit tag.
Findings Of Fact Respondent, Florida Department of Transportation, filed an alleged violation of Chapter 479 and Section 35.13 and 339.30(1), Florida Statutes, and notice to show cause on August 11, 1977, alleging that four signs owned by the Petitioner, Johnson and Johnson, are in violation of Chapter 479, and rules promulgated thereunder for having added lights to the signs without obtaining a permit therefore and for increasing the size of each of the signs. The Petitioner, Johnson and Johnson, Inc., stipulated that the four signs were located in the location as shown on the violation notice, that there are lights on the signs and that there was some enlargement, albeit small. They stand along Interstate-10, and lights were added much later than the original signs were permitted and erected. Sign number one was enlarged from 18' x 12' as permitted to 26' x 16'. Sign number two was enlarged from 18' x 12' as permitted to 23' x 16'. Sign number three was enlarged from 18' x 12' as permitted to 24' x 16'. Sign number four was enlarged from 18' x 12' as permitted to 25' x 16'. Pictures of the signs were admitted into evidence and evidence was submitted that the additions were made by "scabes" nailed up on the poles. Said additions were of newer timber than the original signs. The applications requested a permit for category 12 through 20 and the applications did not include a request for a lighted sign. No lighting was requested by checking the application to denote lighting and the dimensions in feet on each sign as requested was 18' height and 12' width. Each permit fee was $4.00. The signs of Petitioner were erected prior to 1971, and inasmuch as they do not conform to the current regulations or the regulations promulgated and effective on December 8, 1971, the signs were grandfathered in and are "nonconforming" signs, not subject to immediate removal under Section 479.23 and Rule 14-10.07, but are subject to Section 479.24 as long as they are maintained in substantially the same manner as when they became nonconforming.
Recommendation Remove subject signs if the enlargement and the lights have not been removed within 10 days after entry of the final order. DONE AND ENTERED this 10th day of July, 1979, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Edwin B. Browning, Esquire Browning & Hardee Post Office Box 652 Madison, Florida 32340 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue in this case is whether Respondent violated Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), Florida Statutes (1999) (hereinafter, "Florida Statutes"), respectively, by: engaging in contracting as a business organization without applying for a certificate of authority through a qualifying agent and under a fictitious name; failing to notify Petitioner of the mailing address and telephone number of the certificate holder or registrant; committing incompetency or misconduct in the practice of contracting; proceeding on a job without obtaining applicable building permits and inspections; and failing to provide a written statement explaining the consumer's rights under the Construction Industries Recovery Fund (the "Fund").
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor with license number CC C018992. At all relevant times, Respondent was registered or certified with Petitioner as the qualifying agent for Earl Benjamin and Company, Inc. ("EBCO"). As the qualifying agent, Respondent was responsible for all of EBCO's contracting activities in accordance with Section 489.1195. Respondent failed to obtain a certificate of authority from Petitioner. On April 4, 1998, EBCO entered into a contract with Mr. Joseph Chapman ("Chapman") to repair a leak in the roof of Chapman's residence at 1880 Jessica Road, Clearwater, Florida. On the advice of Mr. Dale Edwards, a representative of EBCO, Chapman entered into a second contract with EBCO to repair the entire roof for an additional cost. None of the contracts or other documentation provided by EBCO to Chapman contained a notice explaining the consumer's rights under the Fund. The contract prices for the first and second contracts were $4,500 and $7,500, respectively. After completing the work, Respondent sent another bill to Chapman for $1,750 for additional materials and repairs. Chapman paid, and Respondent accepted, $13,210 as payment in full of all amounts owed to Respondent. The checks signed by Chapman were made payable to "Earl Benjamin and Company and/or EBCO." After EBCO completed the work on the Chapman residence, the roof leaked in four places and continued to leak as of the date of hearing. Chapman contacted Respondent and other EBCO representatives repeatedly in attempt to stop the leaks. EBCO has been unable to stop the leaks in Chapman's home. The Pinellas County Building Department (the "Building Department") never performed a final inspection approving the work performed by Respondent. The Building Department issued building permit number 175919 to Respondent on April 23, 1998. On May 26, 1998, Chapman indicated to the Building Department that the roof leaked, and an inspector for the Building Department inspected the roof on the same date. The inspector found that the birdcage was not reassembled, some flashing was too short, and other eaves and rates were not constructed properly. The inspector issued a red tag for the violations. On June 16, 1998, the inspector inspected the roof again and issued a second red tag for some violations that remained uncorrected. On November 16, 1998, the inspector inspected the roof again and issued another red tag because the roof still leaked. On January 14, 1999, the inspector met with Chapman and representatives for EBCO to address the continuing problems with the roof. The inspector instructed Respondent to update his address and licensing information. On January 26, 1999, the inspector inspected the roof for the last time. The roof still leaked. On May 9, 1998, EBCO entered into a contract with Jack and Dawn Wilcox ("Wilcox") to repair the roof and install roof vents in the Wilcox residence at 247 144th Avenue, Madeira Beach, Florida. The contract price for the Wilcox job was $1,800. The Wilcoxes paid, and Respondent accepted, $1,800 as payment in full of all amounts owed to Respondent. The checks signed by the Wilcox's were made payable to "EBCO" or "EBCO Roofing." After EBCO completed the work on the Wilcox residence, the roof leaked around the vents installed by Respondent. The work performed by Respondent suffered from incompetent workmanship including ragged and non-uniform holes cut into the roof for the vents. Mr. Wilcox attempted to contact Respondent and other EBCO representatives repeatedly in an attempt to correct the leaks in the roof. No one from EBCO returned the messages from Mr. Wilcox. Mr. Wilcox attempted to physically locate Respondent at Respondent's business address, but Respondent's address was incorrect. The Wilcoxes incurred additional expenses of $1,500 to correct problems caused by Respondent. On October 24, 1998, Mr. Wilcox entered into a contract with Kurt Dombrowski Roofing Contractor ("Dombrowski") to repair the leaks in the roof and to re-install the vents in the roof. Dombrowski correctly performed the work, and Wilcox paid Dombrowski $1,500. The Wilcoxes have no further problems with the roof. Respondent never obtained a building permit for the work performed on the Wilcox roof. The Wilcox home was located within the jurisdiction of the City of Madeira Beach (the "City"). The City no longer has a building department. The Pinellas County Building Department assumed the responsibilities of the City. Respondent never obtained a building permit for the Wilcox job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), imposing administrative fines in the aggregate amount of $3,200, requiring Respondent to pay restitution to Chapman and Wilcox in the respective amounts of $13,210 and $1,800, and requiring Respondent to pay costs of investigation and prosecution in the amount of $690.40. DONE AND ENTERED this 9th day of October, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 9th day of October, 2000. COPIES FURNISHED: Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert A. Crabill, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3060 Earl Henry Benjamin 9914 Connecticut Street Gibsonton, Florida 33534
Findings Of Fact The parties stipulated at conclusion of hearing to the matters set forth in the following findings of fact. Stipulated Facts The Respondent was the subject of a previous administrative complaint filed by the Petitioner. The previous administrative complaint issued by Petitioner was number 76024. The Respondent did not seek a formal administrative hearing to contest the charges of the previous administrative complaint which consisted of the same fact allegations and statutory violation as set forth in the charges in the instant complaint. The Respondent and the Petitioner reached an accommodation in regard to the charges set forth in the previous administrative complaint. Petitioner entered a final order in that previous case pursuant to stipulation and settlement which imposed sanctions upon the Respondent. Such final order was signed on November 19, 1987, by J. R. Crockett, Chairman of the Construction Industry Licensing Board and was filed with the Board Clerk on November 24, 1987. The administrative complaint in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, the instant case, is included in the settlement of Petitioner's case number 76024. As a result of the previous administrative adjudication of the same cause of action as set forth in the present proceeding, further factual findings in this case are not warranted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that, in view of the parties's stipulation at hearing, a final order be entered 1) finding this administrative complaint, as set forth in Division of Administrative Hearings case number 87-5604 and Petitioner's case number 82716, should have been included in the previous disposition of Petitioner's case number 76024 and 2) dismissing further proceedings in this cause. DONE AND RECOMMENDED this 7th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1988. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael B. Holden, Esquire Litigation Building, Suite 204 633 South Andrews Avenue Ft. Lauderdale, Florida 33301 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: A. The Parties Prestige is a wholly-owned subsidiary of Prestige Gunite, Inc.; the parent corporation is located at 7228-C Westport Place, West Palm Beach, Florida. The owner of the parent corporation was identified as Brian A. Mahoney, who also owns and controls a number of other entities in the State that are engaged in the business of producing cement. The record does not disclose the names of all of the corporate entities, but it does show that Mr. Mahoney has formed two corporate entities who operate at the same location in Lake County, Florida: Prestige Gunite of Orlando, Inc. (the applicant here), and a limited liability corporation known as Prestige/AB Ready Mix, LLC, which has a different parent corporation. The latter entity operates a ready-mix cement plant on the southern part of the property on which the applicant's operations will be located. In addition, the record shows that Mr. Mahoney operates at least two other cement plants in the State, one a "smaller facility" at Ocala, Florida, whose name and corporate status are unknown, and B & B South Florida, Inc., which operates a facility at an undisclosed location. Although these entities are owned and controlled by one individual, the applicant has represented without dispute that all of the cement plants are operated as separate entities, each with its own permit issued by the Department. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2006), to evaluate applications for air emission permits that are used by cement batching plants. The use of the permit in issue here was reviewed by the Department's Central District Office in Orlando, Florida. Petitioners all reside in close proximity to the proposed facility. In addition, their homes are in closer proximity to the existing ready-mix facility. Through testimony at hearing, Petitioners established that their substantial interests are affected by the new facility and they have standing to challenge the use of the permit. Background A general permit is established by rule and constitutes a "simplified procedure" used by the Department to allow a facility to begin operations, as compared with other types of permits issued by the Department. Department standards provide that if a facility such as that proposed by the applicant emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the Department reviews the notification (application) for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62- 210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the Department decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. The facts underlying the filing of the instant application are somewhat confusing and form the basis, in part, for the allegations in the two Petitions filed in opposition to the notification. In May 1999, Prestige Gunite of Orlando, Inc., gave notification of its intention to use a general air permit to operate a concrete batching plant at 17600 State Road 50, near Clermont, Florida (also known as the Clermont Yard). Because no challenge to that notification was made, the applicant was issued Permit No. 7775088-001-AG, which became effective on July 8, 1999, and expired on July 9, 2004. Presumably, Prestige operated a gunite batching plant under that permit during that five-year period. In 2001, Prestige/AB Ready-Mix, LLC (then known as Prestige/AB, Inc.) applied for another air general permit at the same location (the Clermont Yard) to operate a concrete batching plant.3 (Apparently, multiple batching plants are authorized at the same geographic location so long as the total particulate of all facilities at that location does not exceed 100 tons per year, which would cause the facilities to lose their Non-Title V status.) Because no third party objections were filed, and all criteria were satisfied, Permit Number 7775088-003-AG was issued. Although the permit was scheduled to expire in 2006, it was recently renewed for another five years and will now expire on August 3, 2011. See Prestige Exhibit 2. (Florida Administrative Code Rule 62-4.540(13) limits the use of an air general permit to five years.) Prestige says that it incorrectly assumed that the air general permit issued to Prestige/AB Ready-Mix, LLC, in 2001 (and renewed in August 2006) also authorized it to continue to operate a gunite batching plant at the Clermont Yard after the first air general permit issued to Prestige Gunite of Orlando, Inc., expired in 2004. This explanation seems unusual, given the fact that the applicant's owner operates multiple permitted cement facilities throughout the State and should be familiar with the permitting process. In any event, Prestige continued to operate a gunite batching plant at the Clermont Yard without a permit. Apparently prompted by numerous and repeated complaints from nearby residents over air emission concerns from both operations, the Department eventually conducted an investigation of both facilities. Besides finding that emissions standards and hazardous waste rules were being violated, the Department discovered that Prestige was operating a gunite facility without a permit. On May 31, 2006, the Department issued a Warning Letter to the parent corporation advising that it must cease gunite operations until a permit was obtained. Despite the Warning Letter, operations at the facility continued, which prompted a second letter from the Department on August 29, 2006, advising that formal enforcement action would be taken unless operations were terminated. In early September 2006, operations ceased and have not resumed pending the outcome of this proceeding. On July 31, 2006, Prestige filed an Air General Permit Notification Form to notify the Department of its intent to use both a new and existing air general permit for its gunite batching plant at the Clermont Yard. This application was denied by the Department on August 29, 2006, because of "unconfined emissions," that is, the applicant had failed "to take reasonable precautions to contain particulate emissions from truck loading operations." During this same period of time, a meeting by the Central District staff and the applicant was held and on August 31, 2006, Prestige filed a second Air General Permit Notification Form advising that it intended to operate a concrete batching plant at the Clermont Yard. A new permit, rather than a renewal of the old permit, was sought since the original permit had expired in 2004. Thus, it was not necessary for Prestige to surrender any existing permits, a requirement found in the application form. Because the Department concluded that all rule criteria had been satisfied, it took no action regarding the application. On August 31, 2006, Prestige Gunite, Inc. (as opposed to Prestige Gunite of Orlando, Inc., which had filed the notification) caused to be published in the The Daily Commercial, a newspaper of general circulation in Lake County, a Public Notice of Application for a General Permit. The following day, a similar notice was published in the South Lake Press, also a newspaper of general circulation published in Lake County. On September 21, 2006, Mr. Koehnlein, who lives just east of a vacant lot on the eastern side of the site, filed his Petition challenging the use of the permit on numerous grounds. (Mr. Koehnlein's Petition was actually filed in response to the Department's notice of intent dated August 29, 2006, to deny the first application filed by Prestige. However, it was treated as a request for a hearing in response to the second notification filed by the applicant.) On the same date, and then through counsel, Petitioners, Aaron and Amy Wright, Joseph Maxwell, Donald Stone, and Marlene Matthews, who live in a residential subdivision immediately south of the site, filed their Petition challenging Prestige's use of the permit. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige is qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62-210.300(4)(c)2. and 62-296.414. The Permit The Notification filed by the applicant indicates that the facility will be located at 17600 State Road 50 near Clermont, Florida. In broader geographic terms, the facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini-storage facility to the west, a light industrial area and vacant lot to the east, and as more fully discussed below, a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility.4 For many years, the subject property just north of the subdivision was owned by Kelly Construction Company (Kelly) and remained vacant. At some point after 1985, however, Kelly began using the site as a gravel pit and commenced excavation operations as close as forty feet to the back property line of the homes in the subdivision. According to one long-time resident, Kelly then began using the vacant land as a dumping site for building materials and illegal trash. After a complaint was filed, in 1998 the Department shut down the landfill operations and a substantial berm was constructed between the subject property and the subdivision. Around 1999, Prestige's parent company either purchased or obtained authorization to use the property and commenced operations shortly thereafter under the permit issued to Prestige Gunite of Orlando, Inc. It also reduced the size of the berm between the plant operations and the subdivision property line to approximately seventy-five feet. Prestige's gunite facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. In addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. Permit Requirements Under Florida Administrative Code Rule 62-296.414, which contains the substantive requirements for using the permit, an applicant must agree to comply with various requirements set forth in the rule. They include requirements relative to stack emissions, unconfined emissions, test methods and procedures, and compliance demonstration. Although the application and supporting documentation reflect that each of the above requirements has been met, perhaps the most relevant requirements to Petitioners' concerns are the two that the owner "limit visible emissions to 5 percent opacity" and "take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards." Fla. Admin. Code R. 62- 296.414(1) and (2). To control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. To control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Prestige acknowledges that prior to shutting down operations in early September 2006, it experienced an emissions problem with the truck loading operation which will be corrected by the modification of the lid. Finally, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The procedural requirements for obtaining a Non-Title V Air General Permit to operate a concrete batching plant are found in Florida Administrative Code Rule 62-210.300(4)(c)2. and simply require that the owner (Prestige) provide a completed Concrete Batching Plant Air Permit Notification Form, agree to comply with the requirements of Florida Administrative Code Rule 62-296.414 (cited above), submit notification to the Department in the event the site of the plant is relocated, agree to meet certain requirements if nonmetallic minerals are processed, and that if more than one relocatable concrete batching plant is located at the same location, agree that the total operations would not be a Title V source. The record shows that each of these requirements has been met. Petitioners' Concerns Petitioners presented a wide array of concerns, most of which are not relevant to the narrow issues in this case and instead appear to be related to the operations of the ready-mix plant or matters outside the jurisdiction of the Department.5 Their undisputed testimony is that the occupants of the homes which lie near and adjacent to the six-acre site are now, and have been for years, the recipients of dust and other particulate matter in such quantities as to force them to keep their windows closed throughout the year and prevent them from enjoying any type of outside activity in the area. Virtually all of Petitioners and their witnesses testified about constant respiratory ailments which they or members of their family suffer from due to the air emissions from the cement plants. These ailments began after the adjoining property was converted to a cement plant. They also pointed out that vehicles which are not parked in enclosed garages are covered by dust after a relatively short period of time. For example, cars that are washed in the afternoon and parked in front of their owners' homes that evening will be covered in dust the next morning. See Petitioners' Exhibits 18A, B, and C. While not a consideration in this case, water truck and sweeping operations at the gunite facility will begin at 6:00 a.m., and operations have begun as early as 2:00 a.m. or 3:00 a.m. at the ready-mix facility. Thus, beginning early in the morning and continuing throughout the day, the neighbors are subjected to the sound of large cement trucks being driven throughout the yard while being loaded with cement, cleaned, or mechanically repaired. At the same time, Petitioners have indicated that the sale of their homes is not possible due to the operation of the cement plants, and one witness stated that it was unlikely he could even rent his home to a third party due to the issues facing the neighborhood. Petitioners uniformly expressed dissatisfaction with the Central District Office's handling of their long-standing complaints (beginning years ago) and the amount of time it took for the Department to actually perform an inspection of the adjoining property. After conducting an initial inspection in November 2005 and a follow-up inspection in March 2006, presumably because of Petitioners' complaints, in October 2006 the Department entered into a Short Form Consent Order with both Prestige and the ready-mix entity. To resolve a number of violations, including operating without a permit, the Department required Prestige to pay a $10,800.00 civil fine and take corrective action. (Also, Prestige/AB Ready Mix, LLC, was required to pay a $15,650.00 civil penalty for numerous violations associated with its operations and take corrective action.) The matter was finally resolved by a Department letter dated October 13, 2006. See Department Exhibit 9. According to a Department inspector, a follow-up inspection in early December 2006 did not detect any on-site violations by the ready-mix plant. Despite the corrective actions which the ready-mix operation may have undertaken, Petitioners complain that the air quality in the neighborhood has improved only slightly, and that was a result of Prestige shutting down the gunite operations in early September 2006 pending the outcome of this case, and was not due to any corrective measures required by the Short Form Consent Orders. Petitioners' complaints regarding air quality are real and not imagined. Credible testimony and photographs confirm them to be true. It is fair to assume that if emissions violations are still occurring, as Petitioners contend, they are due to the operations of the ready-mix plant and should be the subject of further inspections by the Department and an enforcement action, if appropriate. However, given the Department's straight-forward regulations pertaining to the use of an air general permit, the precautions which Prestige has stated it will take (and assuming that they will occur), and the expert testimony supporting a finding that all criteria have been met, Prestige is qualified to use the applied-for air general permit to operate a cement batching plant at the Clermont Yard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Prestige Gunite of Orlando, Inc., is qualified to use an air general permit at 17600 State Road 50, Clermont, Florida. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 5th day of March, 2007.
The Issue The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required permits in three different instances, in violation of Florida Administrative Code Rule 64E-6.022, and if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department, an agency of the State of Florida, has responsibility for the regulation of septic tank contractors pursuant to Chapters 381, 386 and 489, part III, Florida Statutes. The Respondent, Scott Womble, is a resident of the State of Florida and has been authorized by the Department to provide septic tank contracting services. 5168 Pimlico Drive In 2003, Respondent replaced the drainfield on the real property located at 5168 Pimlico Drive, Tallahassee, Florida. A permit for the repair of the drainfield was issued in 2003, which listed Respondent as the agent for the permit applicant. In 2006, Respondent pumped out the septic tank at the Pimlico Drive location. Pumping out the septic tank does not require a permit. In 2006, Respondent also installed new "old style" chambers and end caps. Chambers are used to repair the drainfield. Repair of the drainfield requires a permit. A review of the records for the Leon County Health Department REHOST database revealed that no permits had been applied for or obtained for any work in 2006, 2007 or 2008 at the Pimlico address. 1351 Cochise Trail On or about December 19, 2008, Alex Mahon and Kathy Davis from the Leon County Health Department, Environmental Health Division, went to real property located at 1351 Cochise Trail in Tallahassee. Mahon and Davis went to the property in response to a phone call received from Respondent requesting the verification of a site evaluation. Site evaluations are required to be completed as part of the application process for a permit for septic tank installation. When Mahon and Davis arrived at the property, no one from Respondent's company was present. However, upon their arrival they observed that the septic tank and drainfield had been installed. A permit application had been submitted for the work at 1351 Cochise Trail. However, the application was incomplete and the permitting fee had not been included with the application. Accordingly, no permit had been issued for the work that was already completed at the time Mahon and Davis visited the site. Later that day, Respondent provided the missing documentation required for the issuance of the permit, and paid the permitting fee. At that time, a permit for the work was issued. 2207 Bannerman In January 2009, Kathy Davis from the Leon County Health Department received a call that work was being performed at 2207 Bannerman Road, which was the location for the La Hacienda Restaurant. She visited the site to see what work was being performed. At the time of Ms. Davis' visit, there was no work being performed at the site. There was, however, equipment present at the location and excavation of the drainfield had been performed. Used drainfield chambers had been dug up and were present on the site as well. No permit had been obtained for drainfield repair. Ms. Davis could not say whether any drainfield had been installed. She could only state with certainty that the area containing the drainfield had been excavated. Ms. Davis was aware that Respondent had been pumping out the septic tank on the property, which did not require a permit.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Health enter a Final Order finding Respondent guilty of Count I and issuing a letter of warning; finding Respondent guilty of Count II and imposing a $750 fine; and dismissing the charges in Count III. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of November, 2009.
