The Issue The principal issue in this case is whether certain local technical amendments to the Florida Building Code adopted by the Broward County Board of Review and Appeals (BORA) comply with the requirements of Section 553.73(4)(b), Florida Statutes (2001). As to Broward County, there is the additional issue of whether Broward County is a proper party to this proceeding.
Findings Of Fact Based upon the testimony and evidence received at the hearing, and upon the parties' stipulations, the following findings are made: Findings about status of Broward County Respondent Broward County is a county created pursuant to the laws of the State of Florida. Broward County became a charter county effective on January 1, 1975, by a referendum approved by the voters of Broward County in November of 1974. In 1976, the Broward County Charter was amended to add a new Section 8.18, which the legislative history for the charter describes as establishing BORA as “an arm of Charter government.” Broward County has not voted to adopt any local amendments to the Florida Building Code. Findings about status of BORA Respondent BORA, is a board created under the provisions of the Charter of Broward County (the “Charter”). BORA was originally created in 1971 by a special act of the Florida legislature, 71-575, Laws of Florida, Special Acts of 1971. That special act adopted the South Florida Building Code, as the applicable building code for Broward County and included within the South Florida Building Code as Section 203 the following language, which created BORA: 203. Board of Rules and Appeals. In order to determine the suitability of alternate materials and types of construction, to provide for reasonable interpretation of the provisions of this code and to assist in the control of the construction of buildings and structures, there is hereby created a BORA, appointed by the appointing authority, consisting of twenty-four (24) members who are qualified by training and experience to pass on matters pertaining to building construction. Findings about status of Petitioners Petitioner, TRG-Aquazul, Ltd. ("TRG"), is a Florida limited partnership and is the developer of a high-rise multi- family residential building project located in Broward County (“Project”) which is subject to the Florida Building Code, as amended, in Broward County. Petitioner, Alfonso Fernandez-Fraga, is a principal of Initial Engineers. Mr. Fernandez-Fraga and Initial Engineers are the mechanical engineers of record on the Project. Mr. Fernandez-Fraga's firm has designed other high-rise residential buildings in Broward County in the past and plans on doing more such projects in the future. Petitioners allege that they will be materially and adversely affected by the application of the Broward County local technical amendments to the Florida Building Code in that the application of said technical amendments to the Project will require a redesign of the mechanical systems of the Project to comply with those technical amendments and undertaking such redesign will cost significant time and money. Alfonso Fernandez-Fraga submitted plans to the Broward County Building Department for approval in connection with the Project. The plans submitted included plans for smoke control measures. The smoke control measures were not approved by the chief mechanical official because in his estimation they did not comply with the local technical amendments to the Florida Building Code enacted by BORA on March 1, 2002. Despite the Broward County Building Official’s suggestion that Mr. Fernandez-Fraga appeal the Building Official’s decision interpreting the applicable code, Mr. Fernandez-Fraga decided not to appeal that decision. Rather, Mr. Fernandez-Fraga chose to challenge the validity of the local technical amendments to the Florida Building Code adopted by BORA, a different appeal than the one discussed with the Building Official. TRG, through its engineer and its architect of record on the project, attempted to comply with option four of the local technical amendments at issue here, which allows one to achieve an understanding with the local building official on an alternative method for smoke control. TRG could not, and did not, reach that understanding with the Broward County Building Official. The building that TRG proposes to build is over 75 feet high, which makes it subject to the local technical amendments at issue here. At the time the local technical amendments at issue here were being adopted, Petitioners were not concerned with such developments because at that time they did not have any projects in Broward County. Findings about BORA's amendment process Once it was clear that Florida was going to have a new statewide Florida Building Code, BORA embarked upon a course of action to adopt several local technical amendments to the Florida Building Code. Such amendments were allowed, with certain qualifications and requirements, by the then-new statutes providing for the implementation of a new Florida Building Code. On March 1, 2002, BORA adopted the local technical amendments that are at issue here. Those two local technical amendmants, Sections 412 and M403.6.4, contained standards for the application and testing of smoke control systems for high-rise buildings. The two amendments were more stringent than the corresponding requirements in the Florida Building Code. Each of these local technical amendments had been part of Broward County’s local building code in effect prior to the adoption of the Florida Building Code, and as set forth in the South Florida Building Code, Broward Edition. BORA sought to maintain the status quo within Broward County with respect to the adoption of these two local technical amendments to the Florida Building Code, a status quo that had been in effect since the mid 1980's. The two local technical amendments at issue here did not introduce any new subjects that had not previously been contained in the South Florida Building Code, Broward Edition. The process leading up to the adoption of amendments on March 1, 2002, began several months earlier with the appointment of a committee and a sub-committee to discuss and draft proposed amendments. The chairman of BORA’s Mechanical Committee appointed a subcommittee which reviewed materials and made decisions with respect to the Local Amendments and made recommendations to the Mechanical Committee which, in turn, made recommendations to BORA The meetings of BORA’s Mechanical Committee and its Smoke Control Subcommittee were not publicly noticed in the Sun Sentinel or any other local newspaper of general circulation. No findings or determinations made by BORA’s Mechanical Committee or Smoke Control Subcommittee with respect to the local need to enact the Local Amendments are reflected in the minutes of their meetings. On December 13, 2001, BORA held a hearing to receive and consider information from the subcommittee and the committee regarding the pending proposed amendments. BORA’s December 13, 2001 hearing was not publicly noticed in the Sun Sentinel or any other local newspaper. Final BORA action to adopt the proposed amendments was eventually scheduled for March 1, 2002. The March 1, 2002, BORA meeting was the only BORA meeting pertaining to the local technical amendments at issue here that was publicly noticed in the Sun Sentinel or any other local newspaper. BORA did not make any findings or determinations at the March 1, 2002, meeting. There was no discussion or determinations made at the March 1, 2002, hearing regarding whether there was a local need justifying the subject local technical amendments. There was no discussion at the March 1, 2002 hearing regarding the subject local technical amendments. At the March 1, 2002, meeting, BORA determined that what its Mechanical Committee presented was acceptable and BORA therefore voted to adopt it without any meaningful discussion. BORA did not make any other determinations with respect to the local technical amendments at that hearing. The members of the Florida Building Commission’s Mechanical and Technical Advisory Committee, which drafted and/or made recommendations with respect to the Florida Building Code, are presently considering the possibility of putting more stringent smoke control measures into the Florida Building Code for statewide application. Findings about the challenge process Broward County does not have, and has never had, an interlocal agreement establishing a countywide compliance review board for the purpose of reviewing any challenges to local technical amendments to the Florida Building Code that may be challenged by a substantially affected party. Neither Broward County, per se, nor any of the municipalities in Broward County, is authorized to exercise any authority over the building code in Broward County. In light of this situation in Broward County it appears to have been the concensus of the members of BORA that it was simply not necessary to structure any interlocal agreement nor create any county-wide compliance review board as otherwise generally provided for in the applicable statutory provisions. Thus, when Petitioner Fernandez-Fraga advised BORA that he wished to challenge the validity of two of the local technical amendments adopted by BORA, it was initially unclear where the challenge should be filed and where it should be heard. Following discussion with Commission staff, BORA advised that the challenge should be filed with BORA and would be heard by BORA. On or about March 20, 2003, Petitioners filed an appeal with BORA challenging the validity of the subject amendments. BORA scheduled a hearing on the challenge for April 10, 2003. BORA was apparently of the initial view that it was hearing the Petitioners' appeal in the capacity of a statutory "countywide compliance review board" because BORA originally noticed the April 10, 2003, hearing as being held by “the Board of Rules and Appeals sitting as a Countywide Compliance Review Board pursuant to Florida Statutes 553.73(4)(b) to hear challenges to Broward County Local Amendments to Sections 412 and M403.6.4 by Mr. Alfonso Fernandez-Fraga, P.A.” Notwithstanding the notice and agenda of the April 10, 2003, BORA meeting/hearing, during the course of the hearing BORA took the position that Broward County does not have a countywide compliance review board as described in Section 553.73(4)(b)8, Florida Statutes. Counsel for BORA stated, on the record, that BORA “has exclusive authority over the building code in Broward County.” Counsel then advised the Board: That statutory section which refers to an interlocal agreement applies to counties where the county and municipalities have the authority to amend the code. In Broward County, the municipalities and the county do not have that authority. Therefore, we don’t have a Compliance Review Board in Broward County because it’s just not authorized because we operate on a different procedure here. The Board of Rules and Appeals has the sole authority to amend the code, so we’re hearing this appeal tonight really as an appeal to reconsider whether the action of this board in March of 2002, when you passed these amendments, were done properly, and that’s the sole issue. The appeal was heard by BORA on April 10, 2003. BORA voted unanimously to deny the appeal. Mr. Fernandez-Fraga promptly received a letter from James DiPietro advising him that the appeal had been rejected. Thereafter the Petitioners timely filed their petition seeking relief from the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Building Commission issue a final order which concludes that, for the reasons set forth above, the local technical amendments adopted by BORA which are challenged in this case fail to comply with the requirements of Section 553.73(4)(b)1, Florida Statutes (2001), and are invalid local technical amendments, and further concluding that Broward County is not a necessary or appropriate party to this proceeding. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of June, 2003.
Findings Of Fact At all times material hereto, Respondent has been a registered residential contractor having been issued license number RR 0040275. In approximately 1980, Respondent entered into a contract to erect a screen room for a Mr. Lewis. Under the terms of the contract, Respondent was to obtain the necessary building permit. After the contract had been signed, Respondent's grandfather died, and Respondent therefore went to New Jersey. He left the permit application with his qualifying agent to sign and process through the building department. When Respondent returned from New Jersey approximately 30 to 35 days later, he went to the Lewis job site and found the project almost completed. Respondent did not check to ascertain if the permit had been obtained, but rather completed the screen room himself. Lewis subsequently contacted Respondent to say that he had received a notice of violation from the building department for erecting a screen room without a permit. Respondent contacted the building department and advised that it was not Lewis's fault, but rather that it was Respondent's responsibility to pull the permit. Respondent was charged with unlawfully erecting a screen room without a permit; he appeared in court and pled guilty; and he paid a $250 fine pursuant to the adjudication of guilt entered on April 20, 1981, in the County Court in and for Dade County, Florida, in Case No. 81-50438. On June 24, 1981, Respondent submitted to the Construction Industry Licensing Board a Contractor's Registration application. On that application, Respondent answered in the negative the following question: "Has any person named in (i) below ever been convicted of any offense in this state or elsewhere other than traffic violations?" At the time Respondent gave that answer, he believed it to be true. He understood the question to call for information on criminal acts and did not comprehend the "screen room" charge to have been criminal conduct. Since Respondent answered that question in the negative, his application for registration was processed in accordance with normal procedures. Had Respondent answered that question in the affirmative, his application would not have gone through normal processing but rather would have been presented to the Construction Industry Licensing Board for the Board's determination of whether to approve the application based upon a consideration of the facts. On November 22, 1982, Respondent contracted with Naomi Blanton to construct an addition to Blanton's home located in the City of Miami, in Dade County, Florida, for a contract price of $11,250. When Respondent had first met with Blanton several months earlier, he had told her he could guarantee completion of the project within 45 days. No contract was entered into at that time, however, since Blanton had not obtained the financing she needed in order to construct an addition. When the contract was signed on November 22, Respondent told Blanton he would start the job when he finished the Chamber of Commerce building he was con structing but that he was starting a 12-unit duplex project around Christmas and would not be able to guarantee any 45-day completion deadline. Accordingly, when the contract was signed, no completion date was included in the terms of that written contract, since Respondent did not know when he could guarantee completion. The Blanton contract written by Respondent specifically provided that Respondent would obtain the building permit. On December 22 and 23, 1982, two of Respondent's employees arrived at the Blanton job site, dug a trench, knocked down the utility room, and moved Mrs. Blanton's washing machine. No further work was done until January 1983. Since Respondent knew that he was required to obtain the building permit before commencing any construction work, Respondent submitted his plans and permit application to the City of Miami Building Department. After the plans had been there about a week, he was advised that his plans would not be accepted unless they were drawn by an architect, although that is not required by the South Florida Building Code. After attempting several more times to obtain approval from the City of Miami Building Department, Respondent hired an architect to redraw the plans and secure the building permit. By this time, Respondent found himself unable to concentrate on operating his business efficiently, since he was preoccupied with spending time with his father who was dying of cancer. Also by this time, Blanton had commenced telephone calls to Respondent on an almost daily basis as late as 11:00 p.m. at his office, at his home, at his mother's home, and at his father's home. Respondent offered to return Blanton's deposit, but she refused to cancel the contract and threatened Respondent that she would sue him if he did not comply with that contract. Respondent commenced working on the Blanton job, although no permit had yet been obtained. The contract on the Blanton job called for payments at certain stages of the construction. By January 27, 1983, Respondent had completed a sufficient amount of the work under the contract so that Blanton had paid him a total of $8,270 in accordance with the draw schedule contained in the contract. Respondent ceased working on January 27, 1983, and advised Blanton and her attorney that he would do no further work until he could obtain the building permit, which he had still not been able to obtain. Although he told them his work stoppage was due to his continued inability to obtain the permit, he also stopped work due to his father's illness and his continued inability to get along with Mrs. Blanton. A delay occurred with the plans being redrawn by the architect Respondent hired to obtain the Blanton building permit, since the architect needed information from Blanton and she was out of town. After Blanton returned, the architect made unsuccessful attempts to obtain the building permit. Respondent and his architect were finally able to speak to one of the top personnel in the City of Miami Building Department about the problems they were experiencing in obtaining a building permit, and, at about the same time, Blanton contacted that same individual to complain that Respondent had no permit. On May 4, 1983, the building department finally accepted the second permit application together with the plans drawn by the architect, and the building permit was issued on May 4, 1983. No work was performed on the Blanton job between January 27, 1983, when Blanton paid Respondent the draw to which he was entitled by that date, and May 4, 1983, when the building permit was finally issued by the City of Miami. Respondent immediately resumed work and quickly completed the next stage of construction called for under the Blanton contract. Upon completing that next stage, he requested his next draw payment; however, Blanton decided not to pay Respondent for the work completed and had her attorney advise Respondent not to return to the job site. Blanton then had a friend of her son come to Miami from Wisconsin to complete the addition to her home. At all times material hereto, Respondent held a certificate of competency issued by Metropolitan Dade County.
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 violating Section 489.129(1)(d), Florida Statutes, by willfully and deliberately violating Section 301(a) of the South Florida Building Code; imposing an administrative fine against Respondent in the amount of $2,000 to be paid by a date certain; and dismissing the remaining charges contained in the Administrative Complaint, as amended, against Respondent. DONE and RECOMMENDED this 13th day of April, 1984, in Tallahassee, Leon County, 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 13th day of April, 1984. COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Joseph F. Scioli, Jr. 246 North Krome Avenue Florida City, Florida 33034 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been certified by Petitioner as a building code administrator in the State of Florida. On April 5, 1993, Respondent began his employment with Metropolitan Dade County, Florida, as the permit control division chief in the County's Department of Building & Zoning, now known as the Department of Planning, Development and Regulation. Carlos Bonzon was the head of the County's Department of Building & Zoning and also served as the County's Building Official. The Port of Miami is another department within Metropolitan Dade County. At all times material hereto, Carmen Lunetta was the head of that department. The County desired to expand Terminals 8 and 9 at the Port of Miami to accommodate a Carnival Cruise Lines mega-cruise ship, anticipated to arrive in March 1996. The County was concerned that if it could not offer the taller terminal required for such a large ship, the ship would utilize Port Everglades instead of the Port of Miami. For purposes of construction, Terminals 8 and 9 were "threshold" buildings. A threshold building is one which is of such magnitude or complexity that the construction requires continuous inspections. Those continuous inspections are performed by the on-site "threshold inspector," the engineer of record, who keeps a log of the on-going inspections. The expertise required of a threshold inspector is beyond that of most County field inspectors. When a threshold inspector is involved, the County's inspectors check to make sure the log is being kept up-to-date and on-site. On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit. While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code. Construction work began on Phase I, the foundation for Terminals 8 and 9. By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time." By letter dated June 29, 1995, Port Director Lunetta again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time." There is no such permit as a conditional permit under the South Florida Building Code. In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project. As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project. On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only." Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits. All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only. At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official. On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control Division Chief. In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative. Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans. Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete. Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued. Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule. He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code. On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed. In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety. On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9. There was never any danger to the public as a result of the construction of Terminals 8 and 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998. COPIES FURNISHED: Diane Snell Perera, Esquire Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N607 Miami, Florida 33128 Gary B. Goldman, Esquire Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact By Stipulation of the parties, it is found that Respondent is, and has been at all times material hereto, a certified roofing contractor in the State of Florida, having been issued license number CC-C015772. He is also known as Tony Gory, and was the qualifying agent for Roofing Technology, Inc., at all times material hereto. On or about August 16, 1982, Respondent submitted a proposal, on behalf of Roofing Technology, Incorporated, to Lillian Perper for roofing work to be done on her residence at 3616 Flamingo Drive, Miami Beach, Florida. Mrs. Perper accepted the proposal on August 17, 1982, and testified that the written proposal contained all terms and conditions of her agreement with Respondent. Respondent obtained the permit for this job on August 23, 1982. Mrs. Perper made timely payments to Respondent, under the terms of their agreement, totaling $11,057.00. Respondent completed the work in late September, 1982 and Mrs. Perper made her final payment on October 8, 1982. Respondent's agreement with Mrs. Perper included a warranty stated as follows: All workmanship and material to be guaranteed against defects for a period of ten (10) years; except for fire, termites, windstorm, or damages caused by acts of God. Within two months after completion of the reroofing, Mrs. Perper noted leaks in her livingroom and bedroom ceilings. She called Respondent, and-he came right out and 3 inspected her roof. He then sent a crew to Mrs. Perper's house and they attempted to locate and fix the leaks. However, they were not successful and the leaks continued. Mrs. Perper made several additional attempts to reach Respondent, but was not able to personally talk with him again about her roof. She did leave messages at his office that she was continuing to have leaks in her roof. In June, 1983, Respondent sent a crew of two men to Mrs. Perper's house to work on her roof. However, she denied them access to her roof because Respondent was not present, although they did identify themselves as roofers who Respondent had sent to repair her roof. Mrs. Perper was concerned that this crew would tear her roof off without Respondent being present to supervise the job. No additional attempts were made by Mrs. Perper to reach Respondent, or by Respondent to repair her roof, after she refused access to the roofing crew in June, 1983. The South Florida Building Code has been adopted as the building code of the City of Miami Beach. Regarding roof coverings, the South Florida Building Code provides that the building official shall be notified by the permit holder upon completion of the roof covering (Section 3401.1(b)(4)), nails should not be driven through the sheathing between supports (Section 3401.1(c)), mortar used to secure roof tile shall be sandwiched between all laps at all butts and along the sides of barrel tile (Section 3403.2(e)), roof tiles shall be secured to resist uplift forces (Section 3403.2(f)) and such tile shall extend beyond roof sheathing at the eaves (Section 3403.2(h)). An inspection of Mrs. Perper's roof conducted on February 25, 1985, by Robert B. Hilson, who was accepted as an expert in roofing and the installation of Spanish-S tile, indicates there were violations of several of the above provisions of the South Florida Building Code when he made his inspection, but there is no evidence that these violations were willful or deliberate, or that they were the result of work completed by Respondent in September, 1982. Between June, 1983, when Mrs. Perper denied access to Respondent's crew and February, 1985, when Hilson made his inspection, Mrs. Perper allowed a painter to go on her roof to see about her leak problem and to repair some flashing around her chimney. There is conflicting evidence concerning whether Respondent called for a final inspection after completing the roofing of Mrs. Perper's residence. Respondent testified that he did call for the inspection, but could offer nothing to substantiate his testimony. Petitioner called Oswald Ferro, building inspector, who testified that in the limited time he had available to him he could only find a record in the City of Miami Beach building department of one inspection on this job, but this was not a final inspection on this job. He had no personal knowledge about inspections on this job or whether Respondent had failed to call for a final inspection. Based upon the conflicting evidence presented and considering the demeanor of the witnesses, it is found that Petitioner has not established that Respondent failed to call for a final inspection.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued dismissing the Administrative Complaint filed against Respondent Frank A. Gory. DONE and ENTERED this 28th day of August, 1986 at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin G. Brooks, Esquire 300 Hollywood Federal Building 4600 Sheridan Street Hollywood, Florida 33021 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1,2 Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 2. Rejected as irrelevant. 7,8 Adopted in Finding of Fact 3. Adopted in Finding of Fact 5, 6. Adopted in part and rejected in part in Finding of Fact 5, 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. 13,14 Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 5,7. Rejected in Finding of Fact 12. 17,18 Rejected as cumulative and unnecessary. Adopted in Finding of Fact 9. Rejected in Finding of Fact 13. 21-28 Rejected as not based on competent substantial evidence. Respondent did not timely file proposed findings of fact by August 26, 1986 as required by Order entered August 6, 1986, and therefore no rulings can be made relative to any proposed findings which may be submitted by Respondent.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: At all times material to these proceedings Respondent was licensed by the State of Florida as a registered residential contractor, having been issued license number RR 0033727. Respondent's license was first issued in February, 1974. In April, 1983, Respondent submitted a change of status application and requested to qualify Regency Builders, a proprietorship. License number RR 0033727 was then issued to William B. Pitts, qualifying Regency Builders. Regency Builders, Inc., has never been qualified by a license of the Florida Construction Industry Licensing Board pursuant to Chapter 489, Florida Statutes or any predecessor of Chapter 489, Florida Statutes. There is nothing in the record to show that Regency Builders was ever properly incorporated in the State of Florida. However, the record reflects that Respondent did register Regency Builders under the fictitious name statutes Section 685.09, Florida Statutes and complied with the requirements of Section 489.117, Florida Statutes after being contacted by Petitioner's employee sometime in February, 1983. Respondent has been a contractor in Bay County, Florida for 10-12 years and has constructed 150-200 homes during this period of time without any disciplinary action against him, excluding the present proceeding. Respondent prepared a proposal for the construction of a home for Mr. and Mrs. Lee Munroe under the name of Regency Builders, Inc., and submitted the proposal to them. Although the Agreement which was prepared by Lee R. Munroe and signed by Respondent on April 11, 1982 and signed by Lee R. Munroe and Sara W. Munroe (Munroes) but undated, incorporates certain portions of the Proposal, the record reflects that the proposal, per se, was never accepted by the Munroes. The Agreement referenced in paragraph 5 was an agreement entered into by the Respondent and the Munroes for the construction of the Munroes' residence in Gulf Air Subdivision, Gulf County, Florida. The agreed upon contract price was $74,129.33 but, due to changes requested by the Munroes, the Respondent was paid approximately $95,000.00. The Munroes' residence was constructed by Respondent pursuant to the Agreement and was essentially completed in December, 1982. The Munroes moved into this "completed" residence in December, 1982. DeWayne Manuel, building inspector for Gulf County, Florida, during the construction of the Munroe's residence by Respondent, performed the framing inspection, the rough electrical inspection, the rough plumbing inspection, the mechanical inspection (the heating and air conditioning systems) and all other inspections required by the 1982 Southern Standard Building Code, as adopted by the Board of County Commissioners, Gulf County Florida (Code) with the exception of the final inspection. At the beginning of construction, but before the framing inspection, Lee Munroe contacted Manuel with a general concern about the construction. As a result of this meeting with Lee Munroe, Manuel requested Charles Gaskins (Gaskins) an architect with Gaskins Architect of Wewahitchka, Florida, to inspect the pilings, girders and floor joist. After this inspection, Gaskins made some recommendations in regard to the attachment of girders to the pilings which Respondent followed in making the corrections to the attachments. Gaskins Architect provided the Piling Layout 1st and 2nd Floor Framing (Petitioner's Exhibit No. 8) at the request of the Munroes. Generally, Gaskins found no major problems with the pilings and girders other than the work was "sloppy". Both Manuel's and Gaskins' inspection revealed that Respondent had complied with the requirements of the Piling Lay Out and Manuel found no Code violations. After Gaskins inspected the pilings and girders, Respondent was allowed to continue construction by both Manuel and Munroe. The House Plans (Plans) for the construction of the Munroes' home were prepared by the Munroes' daughter who is an unlicensed architect. Although in several instances the Plans requirements were less stringent than Code requirement, the Plans were approved by the Gulf County Building Department. While the Plans were lacking in detail a competent licensed contractor should have known how to fill in the details. Once the Plans were approved, Manuel would allow a change in the Plans provided the change was as stringent as the Code and would allow the structure to be built in compliance with the Code. The change could be a downgrade or an upgrade provided the Plans, as changed, complied with the Code requirements. Respondent did not request any additional or more comprehensive plans from the Munroes or inform the Munroes in any manner that the plans were inadequate. The Plans called for 2 x 12 solid floor joists to be placed on 16 inch centers. The house as constructed by Respondent had engineered floor truss (I- Beams) placed on 24 inch centers. Those I-Beams carrying a significant load were not blocked and in some instance the I-Beams were not "end-blocked." The Code allows the use of wood I-Beams in place of solid wood floor joists provided the wood I-Beams are constructed in accordance with Code requirements. The record does not reflect that the I-Beams as used in this construction were built in accordance with the Code, and the testimony of both consulting engineering experts, that the placement of I-Beams in this structure required blocking along both sides and the end went unrebutted. There were holes and notches in the plywood web of the I-Beams. However, in reviewing the photographs in Petitioners Exhibits Nos. 11 and 14, and, in particular, photograph 1 of Exhibits 11 and photographs 4, 5, 6, and 7 of Exhibit 14, and the testimony surrounding those photographs, there is insufficient evidence to determine: (1) the size of the holes or notches (2 inch hole, 4 inch notch, etc.); (2) placement of hole or notch in relation to depth of I-Beam (upper 1/3, lower 1/4, etc.); or, (3) the depth of the I-Beams. Although there was no testimony concerning the size of the hole for the duct work and the depth of the I-Beam in photograph 7 of Exhibit No. 14, it is clear that the hole for the duct work is greater than 1/3 the depth of the I-Beam. The evidence is insufficient to show that Respondent did not use 5 - 2 x 12's in the main girder as required by Piling Layout. The evidence is clear that the 2 x 12's used in girders were not always butted at a support. The evidence is insufficient to show where the 2 x 12's were butted in the span or if the butting was staggered. No set-in braces or plywood sheathing was used in the bracing of exterior stud walls. However, diagonal metal strapping and thermoply was used and two layers of weatherboard were put on horizontally. The evidence was insufficient to show that water penetrated into the wood framework after the second siding was put on. A 32/16, 1/2 inch plywood was used for subflooring. There was no top plate on dining room wall which was a weight bearing wall. Ventilation in the attic was in accordance with plans but no cross ventilation was provided in the attic. The evidence is insufficient to show that hurricane clips were not applied to the center exterior wall in that neither engineer inspected the outside of the wall to determine if hurricane clips were on the outside. Manuel did not find a violation of Code in regard to the hurricane clips. In February, 1983, James Van Orman (Orman), a licensed engineer, was employed by the Munroes to do a structural analysis of the home constructed by Respondent. Orman's report (Petitioner's Exhibit No. 10) contained certain calculations in regard to the structural integrity of the home. The calculations and Orman's testimony surrounding the calculations went unrebutted. Orman and Lee Munroe were associated through their work and Orman, also a general contractor, was hired to make the necessary corrections in the construction to make it structurally sound. On December 5, 1984, after reviewing the case file and exhibits, Harold Benjamin, Jr. (Benjamin), a licensed consulting engineer, conducted an inspection on the structure. While Benjamin's inspection was cursory and he made no calculations Benjamin noted the same Code violations as did Orman and concurred in Orman's conclusion that the structural integrity of the home had been compromised. Respondent was notified in March, 1983, of the problems with the structure but due to problems with the Munroes and with his subcontractor he was only able to replace the siding and do some cosmetic work between March, 1983 and October, 1983. In October, 1983, the Munroes contracted with Orman to correct what Orman had determined to be structural deficiencies and notified Respondent that they no longer wanted him on the job. On September 30, 1983, the final inspection was conducted by the Gulf County Building Department. The Respondent was not present at this inspection having failed to pick up a certified letter from Manuel advising him of the date for the final inspection. By letters dated February 7, 1983 (Petitioner's Exhibit No. 4), October 13, 1983 (Petitioner's Exhibit No. 5) and February 13, 1984 (Respondent's Exhibit No. 1), Manuel expressed his thinking about the Code violations and Orman's report. At the hearing Manuel testified that his thinking had not basically changed from what he had expressed in the letters. Neither the Respondent nor the Gulf County Building Department have had the residence structurally analyzed by a licensed engineer. Respondent deviated from the Plans without first obtaining approval of the Gulf County Building Department when he substituted I-Beams on 24 inch centers for 12 x 12 solid floor joists on 16 inch centers. The only evidence that this change was discussed with the Munroes was in regard to running heating and air conditioning duct work through the I-Beams because Mrs. Munroe did not want to drop the ceiling down to 7 feet to accommodate the duct work. While this change may not have affected the structural integrity of the house had the I-Beams been properly constructed and the strength of the subfloor material adjusted to account for the increased span, the evidence shows that the I-Beams were not properly constructed and that the subfloor material used was not of sufficient strength on account of the increased span. Therefore, this change affected the structural integrity of the house. It was apparent from the testimony that certain other changes in the Plans were made without prior approval of the Gulf County Building Department. However, it was also apparent from the evidence that these changes were at least verbally approved by the Munroes and there was no evidence that these changes affected the structural integrity of the house. Due to a grandfathering provision in the law, William Pitts has never taken an examination for licensure and has never been examined as to the provisions of the Code. Respondent in his testimony exhibited: (1) an awareness of the applicable provisions of the Code but not a complete understanding of them; and (2) an acceptable knowledge of he applicable construction practice.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is Recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Count I and Count II of the Administrative Complaint and for such violations it is Recommended that the Board impose an administrative fine of $1 000.00 and suspend Respondent's residential contractor license for a period of one (1) year, staying the suspension and placing Respondent on probation for that period provided the Respondent: (1) pays the $1,000.00 fine within ninety (90) days; (2) obtains a current copy of the Southern Standard Building Code and agrees to keep it current; and (3) proves to the Board that he has read and is familiar with the applicable Sections of the Code that relate to his license. Respectfully submitted and entered this 2nd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1985. COPIES FURNISHED: Edward C. Hill, Jr. Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles S. Isler, III, Esquire Post Office Box 430 Panama City, Florida 32402 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202 =================================================================
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor, having been issued License No. RC0034672, in the name of John M. Sneed, Beall and Associates Roofing Corp., 7650 Southwest 135th Street, Miami, Florida 33156. Sometime during the month of October, 1951, Jerry Stamos entered into an oral agreement with Bill Parry and Billy Duncan, to have Parry and Duncan reroof Stamos's home at 441 Castonia Avenue, Coral Gables, Florida. The contract price for the reroofing work was $4,000. At no time was either Duncan or Parry licensed to perform roofing work. As a result, after Mr. Stamos was unable to obtain a building permit in his own name to perform the work, Duncan contacted Respondent, and requested that Respondent pull the building permit for the job. On October 20, 1981, Respondent obtained City of Coral Gables, Department of Building and Zoning Permit No. A48375 to perform the work on the Stamos's property. At the time the building permit was pulled by Respondent, no work had commenced on the job. Duncan and Parry were paid a total of $4,000 for the job, $100 in cash; $2,000 on October 13, 1981; and an additional $1,900 on October 22, 1981. Shortly after the building permit was pulled and work had been commenced on the property by Duncan and Parry, Duncan and Parry stopped work on the roof and never returned. Respondent was on the job site on at least one occasion when work was being performed. No notice was furnished to Mr. Stamos concerning cessation of work on the project, nor was he ever given an explanation of why work stopped and was never recommenced by Parry, Duncan, or Respondent. Respondent never supervised any of the work performed by Parry or Duncan, nor did he ever call for any inspection of the project by the City of Coral Gables, Department of Building and Zoning. The South Florida Building Code, Section 3401.1(b) provides as follows: INSPECTION. The Building Officials shall be notified by the permit holder and ample time for mandatory inspections to be made as follows: At the time the anchor sheet is being mopped to non-nailable decks. At the completion of mechanically fastening the anchor sheet to nailable decks and before mopping. During the operation of shingling or tiling. Upon completion of the roof covering. On December 1, 1981, Respondent contacted the City of Coral Gables, Department of Building and Zoning, and cancelled the permit previously obtained by him on October 20, 1981. At that time, Respondent represented to city officials that construction had never started on the project, although he knew that representation to he false. The building project remained unfinished for a period in excess of ninety days before Mr. Stamos had the job finished by another contractor.
The Issue The issue to be resolved in this proceeding concerns whether the Respondents practiced architecture without being appropriately licensed, as alleged in the Administrative Complaint, and, if so, what, if any, penalty should be imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with the responsibility of regulating entry into the practice of architecture and the practice of architecture, including regulation and enforcement concerning proper certification and licensure with regard to the practice of architecture in accordance with Chapters 20, 455, and 481, Florida Statutes. The Respondents are not certified or licensed as an architect or architectural business in accordance with Chapter 481, Part I, Florida Statutes. The Respondent, Lee Mabire, is the sole stock holder and officer of the Respondent, Lee Mabire & Company. Sometime in September 2001, the Respondent, Lee Mabire, was contacted by Mike Rush to provide drawings for a commercial construction project located at 2621 Michigan Avenue, in Pensacola, Florida. The property in question is owned by Lavonia Ives. Mike Rush, the builder, had commenced construction of the renovations requested by Ms. Ives, the owner, but the work on the renovations had ceased because Mr. Rush had never obtained a building permit. Ms. Ives was renovating the property because she intended to lease it to a biomedical company. Mr. Rush needed plans drawn for the project in order to obtain the necessary building permit. Mr. Rush provided the Respondent with a floor plan at the initial meeting he scheduled with the Respondent, Mr. Mabire. The floor plan included a reception area, a conference room, repair shop, storage, warehouse, kitchen, bathroom, and five offices. The project clearly would cost in excess of $25,000.00 as described by Mr. Rush in his request for plans made to the Respondent. The building was designed to include a reception area that had a door open to the public. The Respondent drafted the plumbing, mechanical, and electrical drawings for the project. Oscar Woody, a licensed architect, first became aware of the Ives project through the Respondent. The Respondent gave Mr. Woody several sheets of drawings that he had already prepared. Mr. Woody was responsible for assuring that the plans for the building complied with the American With Disabilities Act. The Respondent is not an employee of Woody or Oscar Woody & Associates and has never received a W-2 form from either of those entities. On November 5, 2001, Mr. Woody signed and sealed the plans prepared for the Ives project. The plans which Mr. Woody signed and sealed as an architect had been prepared by the Respondent. The plans included three pages, a floor plan, an electrical plan, and an HVAC plan. The plans for the project were submitted to the city building department for permitting on November 5, 2002. Mr. Rush told the owner, Ms. Ives, that the Respondent had prepared the architectural drawings for the project. On November 5, 2001, at a meeting outside the building department office, the Respondent gave the plans to Ms. Ives. This was the first time Ms. Ives had ever met the Respondent in person. Prior to the hearing, Ms. Ives had never met Mr. Woody nor had any discussions with Mr. Woody. On that same day, November 5, 2001, Ms. Ives gave the Respondent a check in the amount of $2,400.00 and, at the request of the Respondent, left the payee portion of the check blank. The Respondent later filled in Oscar Woody & Associates as the payee of the check. Ms. Ives requested that the Respondent prepare a receipt for the services he provided an evidencing that payment had been made. The Respondent prepared and signed the receipt for the payment dated December 4, 2001, that describes the scope of services as "Comm. Bldg. Rem. Plans to code." Mr. Woody's name does not appear anywhere on the receipt. The building department required Mr. Woody to revise the electrical and HVAC sheets contained in the plans which he had signed and sealed. Those revised drawings were prepared by the Respondent, however. Mr. Woody signed and sealed the revised drawings on December 11, 2001. On that same day, Ms. Ives gave the Respondent a check in the amount of $125.00 made payable to Lee Mabire Company. The memo on that checks states "revised blueprints, Michigan Avenue." The Respondent provided Ms. Ives another receipt for the payment and described the services as "revised blueprints to meet code." Throughout this sequence of events, the Respondent was the only person Ms. Ives had contact with regarding the architectural drawings that were filed with the building department, other than Mr. Rush and personnel from the building department itself. On February 12, 2002, Don Mathys, filed a complaint with the department against the Respondents for drawing and submitting plans to the Escambia County Building Department for a commercial project. Mr. Mathys was previously a Florida licensed architect, who was chief plans examiner for the Escambia County Building Inspections Department at the time the complaint was filed. The Respondent, Mr. Mabire, has previously been disciplined by the department for the unlicensed practice of contracting and has received a Notice and Order to Cease and Desist as to that disciplinary action on February 18, 2000. The Notice and Order to Cease and Desist pertained to a set of drawings prepared by the Respondent for an office building.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondents Lee Mabire and Lee Mabire Company violated the above referenced statutory provisions concerning the unlicensed practice of architecture; that an administrative fine in the amount of $2,000.00 be imposed against the Respondents, and that they be required to pay the costs, other than attorney's fees, in the amount of $2,111.25. DONE AND ENTERED this 8th day of June, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 8th day of June, 2004. COPIES FURNISHED: David K. Minacci, Esquire Smith, Thompson, Shaw & Manausa, P.A. 2075 Centre Pointe Boulevard Tallahassee, Florida 32308-4893 Lee Mabire, pro se 4440 Bayou Boulevard, No. 25 Pensacola, Florida 32503 Sherry Landrum, Executive Director Architecture and Interior Design Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
The Issue The issue presented is whether Respondents are guilty of violating Section 471.033(1)(g), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Julian Irby was a licensed Professional Engineer with license number PE 43316 and Irby Engineering & Construction, Inc., held Certificate of Authorization #9511 issued by the Board of Professional Engineers. Mr. Irby has been licensed in the State of Florida as a professional engineer since 1990 and spent 21 years in the United States Navy Civil Engineer Corps. He is also a licensed general contractor. Respondent Irby was the engineer of record, with the firm name on the title block of plans for a residential construction project described as, "House Relocation, Foundation Design, 1000 Blk La Paz St., Pensacola, FL" (the relocation project). On or about June 2, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Inspections Department of Escambia County (Building Department). On or about June 7, 2004, Irby signed and sealed page one of one with a site plan and foundation pier detail for House Relocation at 1000 La Paz Street, and filed it with the Building Department. On or about June 25, 2004, Irby signed and sealed six of six pages of plans (the June 25 plans) for House Relocation at 1000 La Paz Street, and filed them with the Building Department. Permitting for the project was performed in a two- step process, with a preliminary foundation plan submitted before the house was moved from the old site in order to obtain a moving permit and foundation permit. After those permits were issued, Respondents received test results from a geotechnical firm that caused some alteration in the design of the footings to accommodate the water table at the new site. The plans upon which the building permits were ultimately issued and which were used by the construction crew in the building process were the June 25 plans. On or about February 1, 2005, Irby signed and sealed seven of seven pages of plans for House Relocation at 1000 La Paz Street, and filed them with the Building Department on February 24, 2005. The seven pages of plans for the House Relocation signed and sealed February 1, 2005, and filed with the Building Inspections Department of Escambia County on February 24, 2005, represent the relocation project as completed. Changes made during construction and approved in the field are reflected in this set of plans. The Florida Building Code 2001, as amended 2003, is applicable to this case. The relocation project involved moving an existing home from Perdido Bay to a location several hundred feet further inland. The house was an elevated structure at the original location and was elevated at the La Paz address. Respondent Irby was not only the engineer of record but was also the contractor for the project. Certain features of the construction and design of the original structure were not known at the time the original plans were submitted for the foundation. For example, there was a façade that hid from view the I-beam, stringers and pipe posts under the floor of the home. These features could not be seen until the façade was removed in preparation for the move. Relocation projects are subject to certain exceptions under the Florida Building Code. Some design specifications normally required when building a house are not required for a relocation project, because the existing structure need not be redesigned or brought up to code as long as it meets conditions specified in Florida Building Code Section 101.4.2.3. There is no allegation that those conditions were not met in this case. The primary requirement for a relocation design is foundation plans sealed by a professional engineer or architect, if required by the Florida Building Code for residential buildings or structures of the same occupancy class. Respondents' plans filed with the Escambia County Building Inspections Department included foundation plans. Both witnesses testifying for the Petitioner stated that they did not review or prepare any calculations related to the plans and there was no evidence presented that the Building Department had required the calculations to be submitted with the plans. James Lane, who testified on behalf of the Petitioner, acknowledged that there is nothing in the Florida Building Code to prevent an engineer from using the dead weight of the house on the piers and the friction it creates as a method of construction. If the dead load of the house and the friction transfer from the house to the top of the piers is sufficient to address the lateral wind requirements, then straps (also referred to as connectors) would not be necessary to meet the requirements of the Florida Building Code. The main wind force resisting system for the relocation project was the embedment of the foundation piers in the fiberglass reinforced slab and continuous footing in the garage area. Page 6 of the June 25 plans specifies a four-inch minimum monolithic concrete slab with fiberglass reinforcement, using 3,000 PSI concrete, as well as number 4 rebar throughout the footings. There is no requirement that the exact location of rebar splicing be noted on the plans, and the plans are not deficient for failing to provide that information. Moreover, the Florida Building Code requires that a minimum of 2,500 PSI concrete be used. Respondents' design exceeded this requirement. Respondent Irby performed calculations, using the dead load weights in Florida Building Code Appendix A, that showed that the dead load of the existing house sitting on piers with the friction it created was more than sufficient to withstand the required lateral wind load. Mark Spitznagel, P.E., reviewed both the plans and the calculations and visited the construction site. He opined that the calculations showing wind loads could be supported using dead load friction between the house and the piers were correct, and that the Florida Building Code does not require an engineer to explain that no connector, or strap, is required under this circumstance. His testimony is credited. Despite the fact that no connectors were actually required, page six of the June 25 plans included directions for connectors that were used to provide additional support. The Administrative Complaint alleges that the plans do not provide adequate guidance for transfer of horizontal wind loads from the house to the supporting piers and posts or how the supporting piers and posts are to resist imposed loads from the house. The evidence presented at hearing did not indicate what information the Petitioner believed would be sufficient to meet the applicable standard of care. Moreover, the evidence presented supports the conclusion that the metal posts were never intended to transfer lateral wind loads, but were to support vertical loads. The metal posts were part of the existing house and not subject to redesign under the exemption afforded in Florida Building Code Section 101.4.2.3. Shear walls were not considered in the calculations performed by Irby. However, the June 25 plans included shear walls around the garage area, which served to provide extra support over and above what would be required by Irby's calculations. The detail provided on page 6 of the June 25 plans provided a clear load path from the foundation through the shear walls to the upper original structure. The June 25 plans admittedly do not provide wall thickness or metal yield strength for the pipe posts, nor weld attachment, size or thickness for top and bottom plates for the pipe posts. This information is not provided because the pipe posts were part of the original structure and there was no need to redesign them or include them in the foundation plans. The slab beneath the structure was also shown on sheets 1-3 and 6 of the June 25 plans. The slab characteristics are shown in the monolithic footing detail. The upper floor framing members, including the floor joists and the stringers and the I-beam atop the pipe posts were part of the original house design. The house was elevated at its original location, and the stringers, I-beam and pipe posts were part of the original structure. These components did not need to be shown on the plans because of the exemption provided in Florida Building Code Section 101.4.2.3. Respondents did not include main wind force resisting loads for the structure because the Florida Building Code does not require them to be shown for residential, as opposed to commercial, projects. Based on the evidence presented, only component and cladding pressures are required to be shown on the plans, and page 6 of the June 25 plans clearly provides this information. In accordance with Florida Building Code Section 1606.1.7, wind loads for components and cladding were provided showing that the structure was designed to withstand winds up to exposure category D, at 140 miles per hour. The house was actually moved and put in place on the foundation piers three days prior to Hurricane Ivan. Hurricane Ivan was a major hurricane causing extensive damage to the Pensacola area. According to the National Weather Service's Tropical Cyclone Report for the storm, Perdido Key was "essentially leveled." The house relocation project sustained no structural damage in Hurricane Ivan.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Administrative Complaint against Respondents be dismissed. DONE AND ENTERED this 29th day of August, 2006, 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 SUNCOM 278-9675 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, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 A. G. Condon, Jr., Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Calloway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
