The Issue Whether the Respondent, Peter Battle, committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against his roofing contractor's license.
Findings Of Fact At all times pertinent to this proceeding, Respondent, Peter Battle, was a certified roofing contractor having been issued License No. C-1959 and was the certified contractor for Battle Roofing Company. On September 18, 1996, the Town of Redington Beach approved and issued a roofing permit to Battle Roofing Co. to replace the roof of a house located a 16215 Second Street, East, Redington Beach, Florida. In Redington Beach, inspections of construction sites are conducted only in the following instances: (1) upon request by the property owner or the contractor working at the site; (2) to determine if a proper permit has been secured for the work being performed; or (3) when apparent violations of the Standard Building Code can be viewed by local code enforcement personnel from the street or right-of-way adjacent to the site where work is being performed. On October 16, 1996, while driving on the street adjacent to the site of the roofing project, William Keeley, Building Code Administrator for the Town of Redington Beach, observed the roofing system being installed by Respondent. At that time, it was apparent to Mr. Keeley that the roof being installed by Respondent was a low-sloped roof. Moreover, it appeared to Mr. Keeley that the low-sloped roof being installed by Respondent had single-ply base sheets. Because the Standard Building Code, required double-ply base sheets for a low sloped roof, Mr. Keeley went on the property to inspect the roofing project. As a result of the inspection, Mr. Keeley determined two violations of the Standard Building Code; detailed the code violations on a written rejection notice; and posted the rejection notice at the site. The rejection notice indicated that Respondent (1) failed to use two-ply base sheets as required by Section 1509.4.21 of the Standard Building Code and (2) failed to use six nails or fasteners per shingle as required by Section 1509.3.5 of the Standard Building Code. On October 16, 1996, Mr. Keeley met and discussed with Respondent the violations of the Standard Building Code that Mr. Keeley's inspection had revealed. Furthermore, Mr. Keeley informed Respondent that the deficiencies must be corrected and brought into compliance with the applicable provisions of the Standard Building Code. Another inspection of the roof of the Redington Beach house was performed by Mr. Keeley on March 4, 1997. At that time, it was determined that the violations cited on the rejection notice issued on October 16, 1997, had not yet been corrected. Moreover, the March 4, 1997, inspection of the subject roofing project revealed several other deficiencies and violations of the Standard Building Code. These deficiencies included the following: (1) The rakes were not nailed and cemented as required by Section 1509.4.2.3 of the Standard Building Code; (2) The valley lining was not cemented and was only 14 inches wide in violation of Section 1509.14.3.2 of the Standard Building Code; (3) One shingle on the north and south rakes was short and tabs were missing; (4) The lap at the tie into the porch roof was not cemented as required due to the house being located in a high wind area; and (5) The area on south side of house where soffit and fascia meet was not sealed and secured. On or about March 7, 1997, Mr. Keeley filed a formal complaint with the Pinellas County Construction Licensing Board against Respondent. As a basis therefore, Mr. Keeley cited the deficiencies noted in paragraphs 5 and 8 above. A third inspection of the roofing project was conducted by Mr. Keeley on August 1, 1997. This inspection revealed that only one of the previously noted deficiencies was corrected to comply with the Standard Building Code. The corrected deficiency involved the lap at the tie into the porch roof which previously had not been cemented. Other deficient areas noted in the October 1996 and March 1997 inspections were still in noncompliance with the Standard Building Code at the August 1997 inspection. There is no evidence that Respondent's license as a roofing contractor has been subjected to disciplinary action on any prior occasion by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County Construction Licensing Board enter a Final Order that finds that: Respondent, Peter Battle, committed the offense alleged in Count One of the Administrative Complaint, violated Chapter 89-504, Section 24(2)(d) and (j), Laws of Florida, and which imposes an administrative fine of $300 for this violation. Respondent violated Chapter 89-504, Section 24(2)(m), Laws of Florida, is guilty of incompetence as alleged in Count Two of the Administrative Complaint, and which imposes an administrative fine of $300 for this violation. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: _ CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Peter Battle, pro se 1090 Sixty-Fourth Avenue, South St. Petersburg, Florida 33705 Howard Bernstein, Esquire County Attorney's Office 315 Court Street Clearwater, Florida 34616
Findings Of Fact Respondent is a certified building contractor having been issued license number CB CA03134. At times material herein, the Respondent was the qualifier for and conducted his contracting business through the entity doing business as A-1 Builders, Inc. On June 29, 1981, A-1 Builders, Inc., entered into a contract with Albert E. and Helen E. Chaloux to construct a residence in Sebastian, Florida, for the sum of $53,158.00 (Petitioner's Exhibit 5). The Chalouxs paid the Respondent a $4,000.00 deposit to commence construction (Petitioner's Exhibit 6 and TR pages 8-9). Respondent did not commence construction of the Chaloux residence nor did he return any portion of the tendered $4,000.00 deposit. On February 24, 1981, A-1 Builders, Inc., entered into a contract with Jeffrey and Linda Ferris to construct a residence in Sebastian, Florida, for the sum of $32,849.00 (Petitioner's Exhibit 1). Respondent completed the Ferris residence during July 1981 and A-1 Builders, Inc., through the person of the Respondent, received full payment at the closing (Petitioner's Exhibit 2). At closing, Respondent transmitted a warranty deed to the Ferrises stating that the property was being delivered to them without any encumbrances (Petitioner's Exhibit 3). At the time of closing, Respondent, through the qualifying entity A-1 Builders, Inc., owed several suppliers and contractors monies for material and services which were furnished for the completion of the Ferris residence and remained unpaid. Specifically, Respondent owed the following suppliers and subcontractors monies: Colkitt Sheet Metal and Air Conditioning, Inc. - $1,500.00 (Petitioner's Exhibits 10-11); Russell Concrete, Inc. - $421.20; and White Drywall - $1,634.00 (Petitioner's Exhibit 7). RESPONDENT'S POSITION Respondent acknowledged that he received a $4,000.00 deposit from the Chalouxs and that he did not commence construction as agreed. However, Respondent urges that A-1 Builders underwent financial difficulties based upon unwarranted newspaper accounts and malicious prosecution by the local State Attorney's office and the Petitioner's investigator which forced him near bankruptcy. Respondent did spend some money toward the initial phases of commencing construction for the Chalouxs which consisted primarily of he payment of monies toward the filing of an application fee for the Chalouxs to obtain financing, the preparation of plans and drawings and some unspecified costs respecting the site preparation for the Chaloux residence. Respecting the allegation that Respondent falsely indicated that there were no encumbrances on the Ferris residence, Respondent's only position is that he was forced to foreclose on certain homes and that the various liens and claims of liens which have been filed by the above-referenced suppliers and subcontractors are being paid as monies are received from the foreclosures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED that the Respondent's certified building contractors' license number CB CA03134 be REVOKED. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 12th day of April 1984.
The Issue It is necessary to resolve the following issues in this proceeding: Whether Mr. Taft violated Section 471.025(3), F.S. and thereby violated Section 471.033(1)(a), F.S., by signing and sealing plans depicting work that he was not licensed nor qualified to perform; Whether he violated Section 471.033(1)(j), F.S., by signing and sealing plans that had not been prepared by him or under his supervision, direction or control; and Whether he violated Section 471.033(1)(g), F.S., by misconduct in the practice of engineering for the same acts alleged in a) and b), above.
Findings Of Fact Barrett L. Taft, P. E. has been licensed in the State of Florida as a professional engineer since 1968, holding license number PE 0013208. Mr. Taft graduated from the Massachusetts Institute of Technology in 1940 with a degree in metallurgical engineering. For the first 27 years he practiced mostly metallurgical engineering, with some, but admittedly very little building experience. After moving to Florida he took the engineers' exam in metallurgical engineering and was licensed. Since being licensed in Florida, he has worked as a sole practitioner in the Maitland-Central Florida area. His primary business activity since 1968 has been the operation of a metal die casting business with a die casting machine that he invented and patented. The contractor who built Taft's plant in Casselberry, a pre-engineered metal building, asked Taft to help him work on foundations for metal buildings. In this way Taft started doing building projects, primarily metal buildings. Harvey Spears was one of the contractors Taft worked with. Spears is a licensed contractor who owns Spears General Contractors, Inc. in Eustis, Florida. J. C. Woliver is an employee of Spears, Inc. He is a draftsman and prepares estimates for the company. Neither he, nor Harvey Spears, nor the company are licensed in architecture or engineering. Sometime in 1985 and 1986, J. C. Woliver prepared drawings for two buildings to be constructed in Eustis by Spears. One was a 2,567 square foot insurance company building, the Talmadge Building; the other was a small strip shopping plaza, Bay Street Plaza. After the drawings were completed and approved by the owners, Harvey Spears took them to Taft's office for his review. Taft reviewed and sealed the drawings. Building permits were obtained; both projects were constructed and they are now occupied by the owners' businesses. Barrett Taft never met with the owners prior to sealing the drawings, nor did he ever meet or talk with J. C. Woliver during preparation of the drawings. Neither Woliver nor Spears were employed by Barrett Taft and he had no supervisory relationship with these individuals. Taft did not do engineering calculations for these two projects, as in his view they were very simple. He reviewed the drawings prepared by Woliver and checked them against the standard building code. No changes were made prior to Taft's application of his seal and return of the drawings to Spears. The plans for the Bay Street Plaza were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on August 5, 1985. The Talmadge Building plans were signed, dated and sealed by Mr. Taft in his capacity as a professional engineer on May 6, 1986. The drawings sealed by Taft for both projects are very sketchy and lack essential detail. No engineering calculations are included, and it is impossible to review the drawings to determine compliance with fire and life- safety codes. Because these buildings are used and inhabited by the public, they should have been designed by an architect. Architects, not engineers, are trained and tested in the requirements of the various building codes, including the fire and life-safety codes. Barrett Taft is not a licensed architect. Taft argues that he was providing a service to the public and the customers are satisfied. His arrangement with Harvey Spears with regard to sealing Woliver's drawings was that he would not handle anything complicated and the contractor would follow the building code. He felt that the buildings were little more than house-like structures which would not require an engineer's calculations or a seal. Barrett Taft was disciplined previously by the Board of Professional Engineers. In an Order dated May 25, 1984, and amended July 31, 1984, the Board imposed a fine of $1,000.00 and one year probation. The order was entered after an informal hearing requested by Mr. Taft. The Board found in that case (DPR #0034220) that Mr. Taft was guilty of negligence; that he lacked training, experience and education to perform the services provided; and that he affixed his seal and signature to drawings that were not prepared by him or under his responsible supervision or direction.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a final order be entered finding Barrett L. Taft, P.E., guilty of violations of subsections 471.025(3), 471.033(1)(a), (g) and (j), and imposing the following discipline. Reprimand. (b) $1,000.00 fine. One year suspension. Two years probation, following suspension, under conditions to be determined by the Board, relating to limiting Mr. Taft's practice to a field in which he is qualified to work and limiting the use of his seal to his own work. DONE and RECOMMENDED this 4th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 day of February, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Barrett L. Taft 2940 Cove Trail Maitland, Florida 32571 Allen R. Smith, Jr. Executive Director Board of Professional Engineers Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for reexamination at the June 1990 certified building contractor examination. On Part II, he received a score of 74.0. A minimum passing score is 69.01. On Part III, he received a score of 67.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 4, 10 and 17. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question numbers 4, 10 & 17 for the certified building contractor examination administered on June 26 and 27, 1990. As to question number 4, the only correct response to the question was answer "B". Petitioner's answer to the question was "D", which was not acceptable. As to question number 10, the correct response was answer "C". Petitioner's answer "B", was not acceptable. As to question number 17, the correct response was answer "C". Petitioner's answer "A" was not acceptable. The Department's determination that answers "B", "C" and "C" were the only appropriate answers was not arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the challenge by Petitioner that he be awarded a passing grade for Part III of the June 1990 certified building contractors examination be DENIED. DONE AND ENTERED this 19th day of April, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 April, 1991. COPIES FURNISHED: Robert J. Uebelacker 326 NW Catherine Avenue Port Charlotte, FL 33952 Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was either an applicant for licensure or held a building inspector license, license number BN 0002765. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to her residence. She retained a contractor to perform the work and returned to Ohio during the time of the construction. When Ms. Edwards returned to Florida she was dissatisfied with the quality of the work. Mr. Joyce, Ms. Edwards' friend, expressed that they had expressed a desire for, and requested only, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by the Respondent. All of the inspections listed on the permit card occurred prior to December 17, 1996. The Respondent was issued a provisional license to perform building inspections on or about December 17, 1996. All of the inspections initialed by the Respondent had been performed by another inspector employed by the Martin County Building Department, Bobby T. Chambers. Mr. Chambers was fully licensed at the times of the inspections and acted as the Respondent's training supervisor. The Respondent accompanied Mr. Chambers during a training period during which time Mr. Chambers was to instruct the Respondent in the procedures and practices of the Martin County Building Department. At all times material to the allegations of this complaint, the Martin County Building Department allowed unlicensed employees to assist its inspectors at construction sites. Such employees were authorized to initial permit cards and to radio to the main office the information regarding inspections performed at the job sites. Because of this informal and haphazard reporting system the official records maintained by the County falsely reflected that the Respondent had performed the inspections listed in this Administrative Complaint. He did not. The records were maintained inaccurately. By initialing the permit card and transmitting the information to the County, the Respondent was performing his duties as an employee-in-training and as directed by his supervisors. The Respondent did not intend to mislead officials and did not intend to file a false report required by law. As a result of the flawed training system used by the Martin County Building Department, this Respondent initialed permit documents prior to licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors Board, enter a final order dismissing the Administrative Complaint against this Respondent. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. 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 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Michael A. Rodriguez, Esquire County Attorney's Office 2401 Southeast Monterey Road Stuart, Florida 34996 Leif Grazi, Esquire LAW OFFICES OF GRAZI & GIANINO, P.A. 217 East Ocean Boulevard Stuart, Florida 34995 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this proceeding is whether disciplinary action should be taken against the Respondent’s registered general and residential contractor’s licenses for violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(j), 489.129(1)(n) and 489.129(1)(o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, the Respondent, Edwin A. Henry, had been licensed by the Department as a registered general contractor and as a registered residential contractor, having been issued license nos. RG 0045112 and RR 0047927, respectively. Moreover, the Respondent was the qualifying agent for Henry Company Homes, Inc. Henry Company Homes, Inc., is a production builder. A production builder builds homes from various standard or generic plans in the hopes of selling those homes at a later time. The homes are not customized in the sense that the plans for a home are drafted with specific home owners' input or for a specific home owner. The pace of production building is generally substantially faster and less expensive than custom home building. Economies in standard materials and use of labor are the reason for the lesser expense. To gain such economies, Henry Company Homes uses the critical path method of construction. The critical path method is a scheduling outline of the time and sequence of work to be done to build a house. The critical path method is an accepted and appropriate construction management technique and the Respondent’s critical path method and times are within the norms of construction techniques accepted in the industry. Respondent was the manager for Henry Company Homes. He did not personally build any of Henry Company’s houses and he did not personally build the houses at issue in this case. Moreover, Respondent was not on-site when these houses were built. Respondent’s role in the company was at least two levels removed from the actual on-site construction of any home. However, the Respondent’s organizational structure and span of management are within the norms accepted in the construction industry. On all homes built by Henry Company, the construction was supervised by a qualified construction supervisor. An assistant supervisor was available to a construction supervisor, should the assigned supervisor need help in overseeing the houses assigned to him. At least one supervisor, Charles Smith, who supervised the construction of the Hornsby house, voiced the standard complaint that he was being overloaded with houses located in different subdivisions and that it was difficult to maintain the production goals established by Henry Homes of completing a house in 10 to 12 weeks. Expert testimony indicated that such a goal was appropriate. Moreover, this complaint seems to be a standard complaint of construction supervisors everywhere and not particularly probative of any of the issues in this case relating to the Respondent. In fact, the Respondent’s supervisory responsibility for his on-site superintendents is within the norms accepted in the construction industry. The pace of construction of Henry Company Homes is the only fact submitted by the Department to demonstrate any knowledge or negligence on the part of the Respondent. No facts specific to the time period or pace of building of the houses involved in this complaint were submitted by the Department. Moreover, Mr. Smith also testified that the Hornsby home met the requirements of the Building Code and he was not aware of any defects in the home. Any other evidence on the issue of knowledge was unconvincing. Okaloosa County adopted the 1994 Southern Standard Building Code on November 15, 1994. Prior to that time the County, on September 21, 1993, had adopted by Ordinance the "current edition of the Southern Standard Building Code, including the appendix." In 1993, the current edition of the Southern Standard Building Code was the 1991 Standard Building Code. In all material respects, the provisions of each edition of the Standard Building Code relevant to this proceeding are the same. In essence, the Standard Building Code establishes minimum standards for the construction of residential homes. However, the Code provides for a high degree of flexibility in its interpretation and application by local building officials. One reason for the flexibility is that it is virtually impossible to construct a building which is totally compliant with the Building Code. Indeed there is a difference between non- compliance with the Building Code and a violation of the Building Code. Before a violation of the code occurs, notice of a deficiency and an opportunity to correct the deficiency must occur. Local building officials may adopt alternative methods of construction as long as those methods are not prohibited by the Building Code and meet the performance standards of the Building Code. No particular procedure is required for the determination of such alternate methods of construction and the building official is free to apply his expertise and knowledge of the local area to establish such alternate methods. The 1994 Standard Building Code provides, in pertinent part, as follows: PREFACE. The purpose of the Standard Building Code is to serve as a comprehensive regulatory document to guide decisions aimed at protecting the public’s life, health and welfare in the built environment. This protection is provided through the adoption and enforcement, by state and local governments, of the performance-based provisions contained herein. The use of performance-based requirements encourages the use of innovative building designs, materials and construction systems while at the same time recognizing the merits of the more traditional materials and systems. This concept promotes maximum flexibility in building design and construction as well as assuring a high degree of life safety. The Standard Building Code incorporates by reference, nationally recognized consensus standards for use in judging the performance of materials and systems. This provides for equal treatment of both innovative and traditional materials and systems, provides for the efficient introduction of new materials into the construction process and assures a high level of consumer protection. * * * 101.3 Code Remedial General. This code is hereby declared to be remedial and shall be construed to secure the beneficial interests and purposes thereof, which are public safety, health and general welfare through structural strength, stability, . . . and safety to life and property from fire and other hazards attributable to the built environment . . . . Quality control of materials and workmanship is not within the purview of this code except as it relates to the purposes stated herein. * * * 101.4 Applicability 101.4.9 Referenced Standards. Standards referenced in the technical codes shall be considered an integral part of the codes . . . . Permissive and advisory provisions in a standard shall not be construed as mandatory. * * * POWERS AND DUTIES OF THE BUILDING OFFICIAL General. The Building Official is hereby authorized and directed to enforce the provisions of this code. The building official is further authorized to render interpretations of this code, which are consistent with its spirit and purpose. (Emphasis supplied) * * * Requirements Not Covered By Code Any requirements necessary for the strength, stability . . . or for the public safety, health and general welfare, not specifically covered by this or other technical codes, shall be determined by the building official. Alternate Materials and Methods The provisions of the technical codes are not intended to prevent the use of material or method of construction not specifically prescribed by them, provided any such alternate has been reviewed by the building official. . . . . Examinations of Documents Plan Review. The building Official shall examine or cause to be examined each application for permit and the accompanying documents, consisting of drawings, specifications, computations and additional data and shall ascertain . . . whether the construction indicated and described is in accordance with the technical codes . . . . Affidavits. The building official may accept sworn affidavits from a registered architect or engineer stating the plans submitted conform to the technical codes. . . . 105. INSPECTIONS * * * * * * 105.4 Inspections Prior to Issuance of Certificate of Occupancy or Completion The Building official shall inspect . . . at various intervals all construction or work for which a permit is required, and a final inspection shall be made of every building . . . prior to the issuance of the Certificate of Occupancy or Completion. * * * 105.6 Required Inspections The building official upon notification from the permit holder or his agent shall make the following inspections . . . and shall either release that portion of the construction or shall notify the permit holder or his agent of any violations which must be corrected in order to comply with the technical codes: Building Foundation Inspection: To be made after trenches are excavated and forms erected. Frame Inspection: To be made after the roof, all framing, fireblocking and bracing is in place . . . Final Inspection: To be made after the building is completed and ready for occupancy. * * * 202. DEFINITIONS GRADE-a reference plane representing the average of finished ground level adjoining the building at all exterior walls. . . . . * * * 1804. FOOTINGS AND FOUNDATIONS 1804.1 General 1804.1.1 Foundations shall be built on undisturbed soil or properly compacted fill material. . . . * * * 1804.1.3 The bottom of foundations shall extend . . . no less than 12 inches (305 mm) below finish grade. (Emphasis supplied) * * * 1804.18 The area under footings, foundations, and concrete slabs on grade shall have all vegetation, stumps, roots, and foreign materials removed prior to their construction. . . . * * * 1804.4 Footing Design * * * 1804.4.2 Footings shall be proportioned to sustain the applied loads and induced reactions without exceeding the allowable stresses specified in this code. * * * 1906.4 Depositing 1906.4.5 After concreting has started, it shall be carried on as a continuous operation until placing a panel or section, . . . is completed except as permitted or prohibited by 1907.4. * * * 1907.4 Construction Joints * * * 1907.4.3 Construction joints shall be so made and located as not to impair the strength of the structure. Provision shall be made for transfer of shear and other forces through construction joints. * * * 2111. MASONRY CONSTRUCTION * * * 2111.1.3 Weepholes. Weepholes shall be provided in masonry veneer . . . at a maximum spacing of 4 ft (1219 mm) on center by omitting mortar in the head joints. Weepholes shall be located in the first course above the foundation wall or slab . . . . 2111.1.4 Installation of Wall Ties. The ends of wall ties shall be embedded in mortar joints. Wall tie ends shall engage outer face shells of hollow units by at least 1/2 inch (12.7 mm). . . . * * * 203.1.2 The detailed structural requirements contained in this chapter are based on sound engineering principles. . . . * * * 2301.2 Design 2301.2.1 The quality and design of wood members and their fastenings used for load supporting purposes shall conform to good engineering practices. 2301.2.1 All members shall be framed, anchored, tied and braced so as to develop the strength and rigidity necessary for the purposes for which they are used. 2301.2.1 Preparation, fabrication and installation of wood members and the glues, connectors, and mechanical devices for the fastening thereof shall conform to good engineering practices. * * * 2306. FASTENINGS 2306.1 Nailing and Stapling Requirements. The number and size of nails or staples connecting wood members shall not be less than those specified in Table 2306.1. . . . 2306.2 Other Fastenings. Where framing anchors, clips, staples, glues or other methods of fastening are used, they shall be labeled, listed and installed in accordance with their listing. * * * 2308. VERTICAL FRAMING 2308.1 Exterior Wall Framing 2308.1.1. Studs in one and two story buildings shall not be less than 2x4 with the wide face perpendicular to wall. . . . * * * 2308.1.1 Heights listed in 2308.1.1 are distances between points of horizontal lateral support placed perpendicular to the plane of the wall. Heights may be increased where justified by analysis. * * * 2308.1.5 Studs shall be capped with double top plates installed to provide overlapping at corners and at intersections with bearing partitions. End joints in double top plates shall be offset at least 24 inches (610 mm). In lieu of double top plates, a continuous header may be used. . . . 2308.1.5 Studs shall have full bearing on a plate or sill of not less than 2 inch nominal thickness and having a width at least equal to the width of the studs. * * * 2308.5 Interior bearing Partitions 2308.5.1 The provisions of 2308.1.1, 2308.1.2, 2308.1.3 and 2308.1.4 shall apply to interior bearing partitions supporting more than a ceiling under an attic with no storage. * * * 2308.5 Interior Nonbearing Partitions 2308.5.1 Framing for nonbearing partitions shall be of adequate size and spacing to support the finish applied. . . . * * * 2309. ROOF AND CEILING FRAMING 2309.1 Ceiling Joists and Rafter Framing * * * 2309.1.3 Ceiling joists and rafters shall be nailed to each other where possible . . . . * * * 2309.1 Trussed Rafters * * * 2309.1.3 The bracing of metal plate connected wood trusses shall comply to their appropriate engineered design. In the absence of specific bracing requirements, trusses shall be braced in accordance with the Truss Plate Institute’s "Handling, Installing and Bracing Metal Plate Connected Wood Trusses, HIB-91." * * * 2309.1 Roof Sheathing 2309.1 All rafters and roof joists shall be covered with one of the following Materials: * * * 4. Particleboard applied in accordance with the provisions of Table 2309.3B and nailed in accordance with Table 2306.1. * * * Table 2306.1 provides that roof sheathing of the type used in the houses involved in this case be nailed 6 inches on center at the edges and 12 inches on center intermediate. The Administrative Complaint alleges the following Building Code violations as the sole basis for the proposed disciplinary action against the Respondent in relation to both the Hornsby and Anthony houses: Foundation does not extend at least 12 inches below finished grade; Foundation is deficient as to form; Stub trusses are not anchored to the interior weight bearing wall; Stub trusses are not adequately cross braced; Brick veneer is not adequately anchored to the interior sheathing or studs to safely resist wind loads; and As to the Hornsby house, the roof sheathing is not attached to resist wind load requirements in the code. The construction of the Hornsby residence was permitted by Okaloosa County, Florida, on June 2, 1994. At the time the Hornsby permit was issued, Okaloosa County was not reviewing building plans for compliance with wind load requirements of the Building Code or inspecting properties for compliance with wind load requirements of the Building Code. The construction of the Anthony residence was duly permitted by Okaloosa County, Florida, on June 6, 1996. At the time the permit was issued, Okaloosa County was reviewing building plans for compliance with wind load requirements of the Building Code. The plans for the Anthony residence passed that review by the Okaloosa County Building Department. The Hornsby and Anthony homes are wood-frame houses built on monolithic concrete slabs. They have a hip roof. The exterior walls are covered by brick veneer anchored with standard brick ties. Both houses have brick veneer which moves with the application of strong hand pressure to the top part of the veneer. The deflection on one wall of the Hornsby house is at least 1 inch. The deflection on the remainder of the Hornsby house and all of the Anthony house is slight and within general engineering perimeters. Both houses have been through at least two major hurricanes since they were built. Both hurricanes had winds in excess of any wind load requirements. Neither house sustained significant damage from either hurricane. There was no evidence submitted, through appropriate calculations, that the houses involved in this case did not meet the performance criteria of the Building Code. To the contrary, there is evidence that these houses do meet the performance requirements of the Building Code since they have survived at least two major hurricanes without sustaining the type damage these performance tests were designed to prevent. The Respondent requested and the Okaloosa County Building Department (Okaloosa County) conducted all required inspections of the Hornsby and Anthony residences. One deficiency, not at issue here, was noted by Okaloosa County during construction of the Hornsby house and was promptly repaired by the Respondent to the satisfaction of the local building official. No deficiencies were noted by Okaloosa County during any of the inspections of the Anthony house. A Certificate of Occupancy (Certificate) was issued by Okaloosa County for the Hornsby house on March 14, 1995. The Certificate certified to the Respondent that the Hornsby residence was constructed in accordance with the applicable Building Code. Hayward Hornsby purchased the house within several weeks after the Certificate was issued and after one walk-through of the house. However, shortly after moving in, Mr. Hornsby noticed that large portions of the ceiling drywall were sagging or wavy. The view of the property corroborated the condition of portions of the Hornsby ceiling, but, the ceiling is not unsightly; the waviness in the Hornsby ceiling can be traced to an unlevel foundation. However, the waviness does not appear to be the result of any code violation on the Respondent’s part, but is one of workmanship. After seeing the wavy ceiling, Mr. Hornsby has never been happy with his house. A Certificate on the Anthony house was issued by Okaloosa County on December 9, 1995. The Certificate certified to the Respondent that the Anthony residence was constructed in accordance with the applicable Building Code. Mr. Anthony, to this day, is happy with his home and has never complained to the Department about his home. It was Mr. Hornsby who directed the Department to Mr. Anthony’s home. As indicated, the applicable Building Code requires that the foundation extend at least 12 inches below finished grade. Section 1804.1.3, Standard Building Code, 1994. The foundation in the Hornsby and Anthony residences clearly met this Building Code requirement. Additionally, the view of each property demonstrated that the foundation met the Building Code requirement for depth. The Department’s expert testified that the correct measurement for determining the depth of the foundation below finished grade was from the bottom of the foundation to the bottom of the brick shelf. That is not the correct measurement for determining compliance with the Building Code. The correct measurement is from the bottom of the foundation to the top of the finished grade. The closest estimate of the original finished grade for both houses was the soil stain on the brick wall. Even after the Administrative Complaint was filed, the Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the depth of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the foundation be sufficient to carry the load of the structure. Section 1804.4.2, Standard Building Code, 1994. The Department’s experts have testified that they had not performed any tests or calculations to determine whether the Hornsby or Anthony foundations are sufficient to carry the load of the structure. Importantly, nowhere in the Building Code is it required that walls be plumb or that foundations be level or shaped a certain way. One reason for this omission is that the materials and environmental conditions involved in construction are flexible and unpredictable, making mathematical and geometric precision impossible. Therefore, the soundness of a wall or a foundation under the Building Code is determined by using the various formulas for loads, wind, etc. Misshaped or unlevel foundations, or unplumb walls are not, by themselves, violations of the Building Code. Such construction is involved more in the quality of workmanship than in any code violations. The view of the Hornsby and Anthony residences conducted by the Administrative Law Judge failed to disclose any facts which support the allegation in the Administrative Complaint as to the form of the foundation. Moreover, the Complaint alleges that Mr. Anthony had cracked bricks as the result of the insufficient foundation. No cracked bricks were observed during the view of the Anthony residence. The Okaloosa County Building Inspector inspected the Anthony residence. He found no Building Code issues with the form of the foundation on the Anthony residence. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. On both the Hornsby and Anthony houses, the stub trusses were not anchored to the interior weight-bearing wall. Stub trusses are the blunt nosed trusses on a hip roof which intersect the main roof of a house and run under the main roof of a house forming a "T"-like structure. In this case, the blunt end of the stub trusses rested on an interior load-bearing wall. The other end of the stub trusses rested on an exterior load- bearing wall. The part of the trusses on the exterior load- bearing wall were properly anchored. When the Hornsby residence was permitted, Okaloosa County was not reviewing plans for compliance with the wind load requirements of the Building Code. Plans review did not begin in Okaloosa County until July 1, 1994. Such review did occur with the Anthony house. Indeed, at the time both houses were built, there was a great deal of confusion within the building community as well as Okaloosa County regarding how to comply with wind load requirements of the Building Code. When the Hornsby and Anthony houses were constructed, neither the builder nor Okaloosa County knew that the prescriptive method for wind load requirements (SSTD 10-93) required the stub trusses to be anchored to an interior weight-bearing wall because the intersecting main roof covers that part of the stub trusses. It was clear the end of the trusses resting on an exterior weight-bearing wall had to be anchored. The Respondent built both houses consistent with the interpretation and enforcement of the Building Code by the local building official and consistent with local building practices in the area. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence and confirmed that the stub trusses were not anchored properly as required by the wind load requirements of the local Building Code. In response to this finding (and consistent with established industry standards), the Respondent employed an engineer to design an appropriate anchoring mechanism for this condition. The engineer’s design was approved by Okaloosa County and properly installed by the Respondent as an alternate method of construction. Okaloosa County inspected the work and cleared the code deficiency. Based on the confusion by both contractors and local building officials regarding the wind load requirement of the Building Code at the time the Hornsby and Anthony residences were constructed, this technical Building Code deficiency was not a knowing violation by the Respondent. No evidence was presented by the Department that the Respondent had any personal knowledge of the existence of this condition prior to the filing of the Administrative Complaint. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. The Building Code requires that the stub trusses be braced in accordance with the engineered truss drawings. At the time the Department made this allegation, its experts had not reviewed the engineered truss drawings. Based on observations at the viewing of the Hornsby residence, the bracing for the stub trusses in the Hornsby residence substantially met this Building Code requirement. After the filing of the Administrative Complaint and prior to the hearing on the Administrative Complaint, Okaloosa County conducted an inspection of the Anthony residence. The Okaloosa County Building Official did not find any Building Code violations with respect to the cross-bracing of the trusses. He did note the bracing was light. Based on the view conducted by the Administrative Law Judge, the stub trusses did not have the required amount of bracing. The bracing which was in place was spaced too far apart by about 1 foot on the middle set of stub trusses. This spacing does not appear to be material and no calculations were completed to demonstrate that the bracing in place was inadequate or negligent construction. Moreover, no knowledge or negligence is attributable to the Respondent since he was unaware of the deficiency and the local building inspector passed the bracing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. When the brick veneer was removed on the end of the Hornsby residence, it was shown that all of the brick ties were installed into the interior sheathing or wall studs. Okaloosa County requires that the framers, not the brick masons, install the brick ties. The brick ties that were imbedded in the brick were properly installed, consistent with local construction practices in Okaloosa County. The failure of the brick masons to use the top row of brick ties is not a condition that the contractor knew about or reasonably could have known about, even with adequate supervision. The Hornsby and Anthony residences passed a brick tie inspection, the inspection which tells the contractor that the brick ties are properly installed and spaced. The failure to use the brick ties on the top row did not cause the excessive movement in the brick veneer of the Hornsby house. Due to the method of installation of Okaloosa County, it was impossible to use those ties on the soldier or top course of the brick wall. Indeed, the Department has failed to prove that the excess movement in the brick veneer of the Hornsby house even existed at the time the Certificate was issued on the Hornsby residence. The movement in the brick was caused by a break in the bond between the brick and the mortar in the tenth course from the top of the wall. It is impossible to know when or why that break occurred. However, Mr. Hornsby’s first report of brick movement to Okaloosa County was after the second hurricane hit Okaloosa County in 1995. The break in the bond could have been caused by the hurricanes or some other external force unrelated to the installation of the brick at the time the house was built. Although the Department’s expert testified that the brick veneer at the Anthony residence had the same movement as the brick in the Hornsby residence that conclusion had no factual foundation. The inspection by the Okaloosa County Building Inspector failed to disclose any excess movement in the brick veneer. A licensed engineer and contractor observed only the slightest movement in the veneer, all of which was within normal tolerances. Most importantly, no excess movement of the veneer was observed during the view. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. The Building Code requires roof sheathing to be nailed 6 inches on center at the edges and 12 inches on center intermediate. Table 1206.1, Standard Building Code, 1994. The Department’s experts did not agree as to the number and severity of locations where nails in the roof sheathing missed the roof trusses. Based on the view of the Hornsby residence, there were some missed nails in the roof sheathing which allowed one section of sheathing to be lifted with hand pressure. The extent of the missed nails was very small compared to the number of nails contained in a roof on an average size house. All of the testimony supports the conclusion that the frequency and severity of this condition was not material. The number of "missed" nails was not a material deficiency and has not affected the performance or safety of the roof system. The deficiency is easily correctable. The concept that a few missed nails are a code violation that would support discipline of a contractor is not consistent with industry practice. Moreover, the record is void of any evidence that the Respondent had knowledge of this condition or that this condition was the product of a lack of supervision by the Respondent or even negligence attributable to the Respondent. To the contrary, the Hornsby residence passed a framing inspection, which included an inspection of the nailing in the roof sheathing. Therefore, the Department has failed to prove this allegation, by clear and convincing evidence. Moreover, after Mr. Hornsby complained about defects or problems in his home, he consistently denied access to the Respondent for the purpose of effecting repairs. In general Okaloosa County requires that a contractor be allowed an opportunity to fix a code deficiency before it considers a deficiency to be a violation of the Building Code. This interpretation of the Building Code by the agency responsible for its interpretation and enforcement is reasonable. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Hornsby residence, if any. Since the Respondent was not allowed such opportunity in relation to the Hornsby house, there is no code violation which the Respondent was aware of. The Respondent was at all times ready, willing, and able to correct any deficiencies in the Anthony residence, if any, and was allowed to do so in at least one instance. Finally, on both the Anthony an Hornsby houses, the evidence failed to demonstrate that the Respondent’s supervisors were unqualified or failed to supervise the subcontractors underneath them or that the Respondent had specific personal knowledge of a supervisor’s failure to supervise. Likewise, the evidence did not demonstrate that the subcontractors were unqualified or that the Respondent had specific personal knowledge that a subcontractor was unqualified or performed in a negligent manner. Without such specific and personal knowledge on the part of the Respondent, none of the charges contained in the Administrative Complaint can be attributed to the Respondent. Therefore the Department has failed to establish that Respondent is guilty of violating Chapter 489, Florida Statutes. The construction of the residences at 102, 106, and 107 Louise Drive and 420 Jillian Drive were duly permitted by the City of Crestview, Florida. All of these houses were incomplete at the time of the inspection by the Department’s experts. The Department offered very little evidence in support of the allegations relating to these unfinished houses. On most of the houses the Respondent had not called for an inspection of the work the Department alleged was a violation. If the contractor has not called for an inspection of a particular phase of the work on unfinished houses, then the condition of that work by itself cannot support an alleged Building Code violation. In like regard, if the contractor calls for an inspection, and a deficiency is noted and the contractor corrects the deficiency to the satisfaction of the building official, then no code violation exists. All of the allegations regarding the incomplete houses fail for one of these two reasons. On all the unfinished houses the Department alleged that the foundation did not extend at least 12 inches below grade. Again proper measurement to determine the depth of a foundation is based on the finished grade. See Section 1804.1.3, Standard Building Code, 1994. At the time each of these homes was inspected by the Department and its experts, finished grade had not been established. Therefore, there is no factual basis for this allegation in the Administrative Complaint and the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise Drive the Department alleged that the brick ties were not properly spaced. At the time of the inspection by the Department and its experts, the Respondent had not called for a framing inspection. Nor was there any evidence that the construction supervisor of the home had accepted the brick tie placement. Accordingly, the spacing of the brick ties could not be the basis of an alleged violation. Indeed, The Department’s expert agreed that this was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 106 Louise Drive the Department alleged that the drywall was improperly nailed. At the time of the inspection by the Department and its experts, the drywall was being installed. No observations were made after the drywall installation was completed to determine the final nailing pattern. The Department’s expert agreed that the condition he observed (which was the basis for the allegation in the Administrative Complaint) was not a code violation. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Also at 106 Louise Drive the Department alleged that the joint offset spacing in the top plate is less than 24 inches apart. At the time of the inspection by the Department and its experts, the Respondent had not called for the framing inspection on this house. The evidence further shows that the issue of the joint offset that was observed during the framing inspection, was noted by the building inspector as an exception, was corrected by the Respondent to the satisfaction of the local building official and was passed by the local building official. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102, 106, and 107 Louise and 420 Jillian the Department alleged that the girder trusses were not anchored. The Department offered no evidence on this issue. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. At 102 and 107 Louise the Department alleged that the exterior sheathing was not properly nailed. The Department offered no evidence regarding this condition at 102 Louise Drive. At the time of the inspection by the Department and its experts of 107 Louise Drive, the Respondent had not called for a framing inspection. The local building official conducted a framing inspection on both houses. Both houses passed the framing inspection. Therefore, the Department has failed to prove this allegation by clear and convincing evidence. Additionally, on all the unfinished houses, the Respondent requested and the City of Crestview conducted all required inspections of these houses. No deficiencies were noted by the City of Crestview Building Department during any of those inspections other than the joint offset at 106 Louise Drive. A Certificate was issued by the City of Crestview on each of these houses. The Certificate certified to the Respondent that these houses were constructed in accordance with the applicable Building Code. As with the Hornsby and Anthony house, even if code violations had been established, the evidence is insufficient to establish that the Respondent knowingly committed any code violations with respect to the properties remaining in these two Administrative Complaints. Likewise, the evidence is insufficient to independently establish that the Respondent committed negligence, incompetency, or misconduct in the practice of contracting. The evidence fails to establish that the Respondent deviated from the applicable standard of care. The evidence did not show that the Respondent relied on unqualified supervisors or subcontractors or that he specifically and personally knew of such. The Respondent is entitled to rely on such qualified personnel. Without such evidence the misconduct charged in the Administrative Complaint cannot be attributed to the Respondent. Moreover, the evidence independently establishes that the Respondent had adequate systems and safeguards in place for supervision of his personnel, and adequately supervised the work on the job sites in question through such qualified construction supervisors. Finally, prior to the commencement of the formal hearing in this matter, the local competency boards for the appropriate jurisdictions disposed of those matters involving the following properties in favor of the Respondent: the Campbell residence, the McLean residence, all of the properties located on Dunbar Circle, the property located at 7222 Antoinette Circle, the Tiger Lake Townhome development, the property owned by Mr. and Mrs. Preble, and the property owned by Mr. and Mrs. Janecki. The undisputed evidence, in the form of an Affidavit from the Respondent, establishes that the residence allegedly located at 1894 Alfred Boulevard in Navarre, Florida, did not exist; this fact was unopposed by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order finding the Respondent not guilty of any of the counts in either of the Administrative Complaints. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of January, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 David L. McGee, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Charles T. Wiggins, Esquire Beggs & Lane Blount Building 3 West Garden Street Suite 600 Pensacola, Florida 32501 Neil H. Butler, Esquire Butler & Dudley 310 East College Avenue Tallahassee, Florida 32301 Gregory D. Smith, Esquire Gregory D. Smith, P.A. 201 South Baylen Street Suite A Pensacola, Florida 32501 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32311-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent is a registered roofing contractor, having been issued license number RC 0034898. He operates a business known as B & P Roofing at 244 Tollgate Trail, Longwood, Florida. The Respondent has appropriately qualified the business name of "B & P Roofing" with the Petitioner. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 489, Florida Statutes, with regard to licensure of building contractors, the regulation of their licensure status and methods of operation and practice. During June of 1981, the Respondent, doing business as B & P Roofing, contracted to perform a re-roofing job with Mr. Jack Mewhirter, whereby he was to put a new roof on a residence at 137 Variety Tree Circle, Altamonte Springs, Florida. The construction of the roof was contracted for and completed during June, 1981. The Respondent failed to obtain a building permit before or during construction of the roof and also failed to obtain a final inspection of the roof when it was finished in June, 1981. The Respondent's testimony establishes that the Respondent was familiar with the building code adopted in Seminole County and familiar with the requirement that he was responsible as the contractor, to obtain a permit before commencing construction of the roof and that he was also responsible for obtaining a final inspection by the Seminole County Building Official. In response to a complaint from Mr. Mewhirter, the owner of the residence, the Seminole County Building Officials, Mr. Flippent and Mr. Del'Attibeaudierer became aware that no building permit had been obtained for the re-roofing job and that no final inspection had been obtained pursuant thereto. Accordingly, Mr. Del'Attibeaudierer inspected the roof in November, 1981, and Mr. Flippent informed the Respondent of the necessity to obtain a building permit and a final inspection. Thus, on November 10, 1981, the Respondent obtained the building permit and called for the final inspection. Mr. Del'Attibeaudierer was unable to sign the final inspection document as "satisfactory" because he was unable to adequately inspect the roof once it was finished. He had been unable to inspect the method by which it was installed during its construction due to the Respondent failing to inform him or his superiors that the roof was under construction and that inspections were needed at that time. hen the Respondent entered into the contract with Mr. Mewhirter, he informed Mr. Mewhirter that he would not obtain a building permit because that would "drive the cost up." The Respondent, in his testimony, denied that he made such a statement, but Mr. Mewhirter's testimony is here found more credible because of the facts established by Mr. Del'Attibeaudierer's testimony that a random check of the roof after he finally was able to inspect it in November, 1981, revealed that all the shingles he examined were nailed with only three nails and were nailed too high up near the upper edge of the shingle, which is a substandard method of installing the roof and which permits storm winds or rain to raise the shingles, causing possible damage to the roof. The fact that the roof was installed in this fashion and that fact that the Respondent admittedly knew of the requirements of the building code and the requirement that a permit be obtained and inspections be made during the course of and at the conclusion of the job, indicated that the Respondent was knowingly trying to avoid the necessity of obtaining a permit and a final inspection and thus lends sufficient credibility to Mr. Mewhirter's testimony regarding the reason the Respondent obtained no permit. In any event, the roof was shown to not be constructed in accordance with the building code. In summary, it was established that the Respondent knew of the appropriate building code, was thoroughly familiar with it and and indeed had installed an excess of seven hundred roofs since he entered the business. He was aware, in connection with the need for obtaining a building permit, that he should also obtain inspections during the construction and a final inspection when the roof was finished, which he failed to do until reminded of his violation by the building department five months after the roof was completed, at which time it was too late to perform the appropriate inspections. Thus, the roof could not be approved by the building department of Seminole County. The Respondent admitted to only being present on the subject job site for approximately an hour and a half during the entire construction of the roof and he admittedly did not bother to look to see if a permit was on the job site at that time, or any other time. Finally, although the Respondent remonstrated that his failure to get a building permit at the appropriate time was inadvertent and due to his assumption that other office personnel had taken care of the obtaining of the permit, that testimony is not found to be credible since it was established, through the testimony of Mr.. Mewhirter, that the Respondent consciously decided not to obtain a permit prior to starting construction of the roof.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Respondent, George G. Vincent, be found guilty of the charges contained in Counts I and II of the Administrative Complaint and that an administrative fine of $1,000 be imposed. DONE and ENTERED this 23rd day of February, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 23rd day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Gary Siegel, Esquire 292 U.S. Highway 17-92 P.O. Drawer 965 Fern Park, Florida 32730 James A. Linnan, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, v. DPR Case No. 0017669 DOAH Case No. 82-1341 GEORGE C. VINCENT B & P Roofing RC 0034898 244 Tollgate Trail Longwood, Florida 32750, Respondent. /
