Findings Of Fact The Respondent, Thomas J. Embro holds two licenses issued by Petitioner. They are RG0021774, registered general contractor, and RC0021647, registered roofing contractor. He has held these licenses since 1974. Sometime in the fall of 1979 Respondent was hired by Richard F. Rogers to replace the roof on a residential structure located at 4119 N.W. 12th Avenue, Gainesville, Florida. At that time the house was for sale. Mr. Rogers, who is a real estate agent, wanted the roof replaced in anticipation of a Veterans Administration financed sale of the house to Mr. William Schrader. Prior to beginning work on the roof Mr. Embro did not obtain a building permit from the City of Gainesville for the job. On October 1, 1979 Mr. Schrader made a complaint to the Building Division of the City of Gainesville. His complaint stated that the roofing work performed by Respondent was unsatisfactory. Mr. Al Davis, a building inspector employed by Gainesville, reviewed the city records and determined that a permit had not been issued to Respondent for reroofing Mr. Schrader's house. On October 3, 1979 Mr. Davis wrote a letter to Mr. Embro which stated in its entirety: October 3, 1979 Mr. Thomas J. Embro 3816 SW 18 Street Gainesville, Florida Dear Sir: We have received a complaint from Mr. Bill Schrader of 4119 NW 12th Avenue on the reroofing that you performed on his residence. After receiving the complaint I investigated out records and the work performed by your company and found the following violations: Our records indicate that a permit was not issued to reroof the above address, this is a violation of Section 106.1 of the Southern Standard Building Code. The roof material was not installed correctly. Shingles shall be installed in accordance to manufacture [sic] re- quirements and some parts of the roof are too flat for shingles. Interior damage has been caused by the roof leaking from not installing the shingles as required. The above violations shall be corrected within 10 days from receipt of this letter. Your compliance will make further action unnecessary. Sincerely, /s/ Al Davis Building Official cc: Mr. Bill Dow, State Investigator Mr. Bill Schrader Mr. Embro applied on October 25, 1979 for a permit from Gainesville for the work at 4119 N.W. 12th Avenue. The permit was issued on December 6, 1979. It is not unusual in Gainesville for a contractor to begin a construction job before the appropriate permit is applied for or issued. When this is not a frequent practice of a particular contractor the City imposes no penalty. If the contractor habitually begins construction without permits, the City imposes a penalty by charging him double the regular permit application fee. Mr. Embro was not charged a penalty by the City in this case. In the course of his contracting business Mr. Embro frequently asked his wife to make permit applications for him before he begins work. In this case he believed that she had applied for the appropriate permit. The City of Gainesville allows persons other than the contractor to apply for a building permit on behalf of a contractor if the contractor has first filed an authorization with the City designating an agent. Mr. Embro filed such an authorization on February 13, 1980 for his wife to be his designated agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Florida Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against Thomas J. Embro. DONE and RECOMMENDED this 16th day of November, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 16th day of November, 1981.
The Issue Whether Respondent, who is licensed as a Plans Examiner, a Building Inspector, and a Building Code Administrator, committed the offenses alleged in the three-count Administrative Complaint and, if so, the penalties if any that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida with the responsibility to regulate Building Code Administrators and Inspectors pursuant to Section 20.165, Chapter 455, and Part XII of Chapter 468, Florida Statutes. At all times relevant to this proceeding, Respondent held licenses as a Standard Plans Examiner in Building and Mechanical; a Standard Inspector in Building and Mechanical; and a Building Code Administrator. Section 468.603(1), Florida Statutes, provides the following definitions relevant to this proceeding: Building code administrator" or "building official" means any of those employees of municipal or county governments with building construction regulation responsibilities who are charged with the responsibility for direct regulatory administration or supervision of plan review, enforcement, or inspection of building construction, erection, repair, addition, remodeling, demolition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. This term is synonymous with "building official" as used in the administrative chapter of the Standard Building Code and the South Florida Building Code. . . . Section 468.603(2), Florida Statutes, provides the following definition relevant to this proceeding: (2) "Building code inspector" means any of those employees of local governments or state agencies with building construction regulation responsibilities who themselves conduct inspections of building construction, erection, repair, addition, or alteration projects that require permitting indicating compliance with building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other construction codes as required by state law or municipal or county ordinance. Section 468.603(6), Florida Statutes, provides the following definitions relevant to this proceeding: "Categories of building code inspectors" include the following: "Building inspector" means a person who is qualified to inspect and determine that buildings and structures are constructed in accordance with the provisions of the governing building codes and state accessibility laws. * * * (e) "Mechanical inspector" means a person who is qualified to inspect and determine that the mechanical installations and systems for buildings and structures are in compliance with the provisions of the governing mechanical code. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Plans examiner" means a person who is qualified to determine that plans submitted for purposes of obtaining building and other permits comply with the applicable building, plumbing, mechanical, electrical, gas, fire prevention, energy, accessibility, and other applicable construction codes. Categories of plans examiners include: (a) Building plans examiner. * * * (c) Mechanical plans examiner. Section 468.603(7), Florida Statutes, provides the following definitions relevant to this proceeding: "Building code enforcement official" or "enforcement official" means a licensed building code administrator, building code inspector, or plans examiner. Ramon Melendez, doing business as R.E.M. Roofing, Inc., was not licensed as a construction contractor in Florida at any time relevant to this proceeding. Mr. Melendez was not individually licensed as a construction contractor in Florida at any time relevant to this proceeding. R.E.M. Roofing, Inc., was not qualified as a construction business by any certified or registered contractor in Florida at any time relevant to this proceeding. On or about March 20, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Pedro Camacho to re-roof the residence located at 3961 N.W. 170th Street, Miami, Florida, for the sum of $3,000. Mr. Camacho paid Mr. Melendez the agreed sum in cash based on the contract dated March 20, 1998. On or about June 3, 1998, Mr. Melendez, doing business as R.E.M. Roofing, Inc., contracted with Santos Valentin to re- roof the residence located at 4412 N.W. 185th Street, Opa Locka, Florida, for the sum of $2,800. Mr. Valentin paid R.E.M. Roofing, Inc. the sum of $1,400 on June 8, 1998. Mr. Valentin paid Mr. Melendez the additional sum of $800 on June 10, 1998. Both payments, which were by check, were for the roofing work described in the contract dated June 3, 1998. On April 6, 1998, Respondent applied for and obtained a permit for the Camacho roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on April 6, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Camacho roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. On June 8, 1998, Respondent applied for and obtained a permit for the Valentin roofing work. This permit application was submitted to the Metropolitan Dade County Department of Planning Development and Regulation. Respondent signed the permit application as “the contractor” and inserted his contractor license number and social security number on the application. The application submitted by Respondent on June 8, 1998, was a fraudulent sham. At no time was Respondent the contractor for the Valentin roofing work. Respondent’s action in obtaining the building permit aided and abetted an unlicensed contractor to engage in contracting. Miami-Dade County Compliance Investigator Daniel Vuelta filed criminal charges against Respondent in two separate criminal cases. One case was for his involvement in the Camacho roofing project and the other was for his involvement in the Valentin roofing projects. These cases were brought in Miami- Dade County Court and assigned case numbers M99-57926 and M99- 57931. In each case, Respondent was charged with one count of Unlawful Application for Building Permit and one count of Aiding and Abetting an Unlicensed Contractor. All charges were first- degree misdemeanors. On February 22, 2001, Respondent entered into a plea agreement to resolve those criminal charges. Respondent entered a plea of guilty to each of the two counts in Case M99-57931, and he was subsequently adjudicated guilty of each count. As part of the plea agreement, the State agreed to nolle pross Case M99-57926. The crimes to which Respondent entered a guilty plea involved fraudulent building permits and, consequently, were directly related to building code enforcement. Petitioner’s investigative costs for this case, excluding costs associated with any attorney’s time, were $427.29.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the offenses alleged in Counts I, II, and III. It is further RECOMMENDED that the final order revoke Respondent’s licensure and impose an administrative fine against him in the amount of $3,000. It is further RECOMMENDED that Petitioner order Respondent to pay its investigative costs, excluding costs associated with any attorney’s time, in the amount of $427.29. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
The Issue Whether the Respondent willfully violated local building codes and abandoned a job.
Findings Of Fact David Cobb is a registered general and registered roofing contractor with the Florida Construction Industry Licensing Board. The job in question was done in Gainesville, Florida. Gainesville has a local building code, having adopted the Southern Standard Building Code, but does not have a local competing board. Cobb entered into a contract with John Larramore for a room addition to Larramore's home. Larramore paid Cobb a total of $2,475.84 on the job which was priced as $4,080.24, an amount which included the price of floor covering which both parties acknowledged would be purchased by Larramore and deducted from the monies paid Cobb. Cobb began work on the project. Larramore was not happy with the craftsmanship on the job, which was overseen by Cobb's foreman. Eventually, Larramore contacted a friend who was a contractor. This friend indicated to Larramore that the job should be inspected by the building inspectors of Gainesville, and Larramore contacted the Building Department of Gainesville. Pending inspection by the Department, Larramore told Cobb to stop work until he was contacted again. The chief building official, Leslie Davis, inspected the Larramore job on May 4, 1979. He found several violations of the local building code. Davis was accompanied by the Board's investigator, Herman Cherry. Davis contacted Cobb and advised him to correct the code violations. Davis sent Cobb a letter on May 10, 1979, outlining the violations and giving Cobb 14 days to correct these violations. See Exhibit 5. Cobb tried to contact Larramore by telephone without success concerning correction and completion of the job. Eventually, Cobb wrote Larramore an undated letter, Exhibit 4, which was written after the inspection by Davis and Cherry on May 4, 1979. Larramore was uncertain of the date he received the letter but did acknowledge it was after the Davis/Cherry inspection. Larramore did not contact Cobb after he received Cobb's letter. Instead, he contracted with another contractor to complete the job. This contractor began work on May 17, 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board take no action against David Cobb. DONE and ORDERED this 9th day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Mr. David Cobb Post Office Box 1306 16146 James Couzens Freeway Tallahassee, Florida 32301 Detroit, Michigan 48221
Findings Of Fact Respondent, Eugene Amrhein, is a certified roofing contractor, license number CC C020238, and was the qualifying agent for Knight Roofing, Inc. at all times relevant to these cases. On or about December 16, 1982, Respondent, conducting business through Knight Roofing Inc., contracted with Evelyn Nickerson for reroofing of a home at 707 N.E. 7th Street, Fort Lauderdale, Florida for a contract price of $1,485. She gave Respondent a downpayment of $785, and upon completion of the project paid the balance of $700. Respondent commenced work on the project without obtaining a permit, as required by Section 301.1(k), South Florida Building Code. Respondent also failed to obtain an inspection as required by Section 305.2(a), of this code. On or about March 10, 1981, Respondent conducting business through Knight Roofing, Inc., contracted with Judevilla Geria for the rebuilding of an existing flat tile roof for a contract price of $4,100. Respondent did not obtain the required building permit, in violation of Section 301.1(k), South Florida Building Code. Respondent did not perform the work contracted in that only a coat of paint was applied. He failed to rebuild the existing roof by recementing each tile, replacing rotten lumber, soffitt and fascia, nor did he replace approximately 50 tiles as required by the contract. However, Respondent has honored his warranty to Geria to the extent of repairing four leaks that developed subsequent to the work. On or about June 29, 1982 Respondent contracted with Golda Oxenberg to waterproof a roof at 3253 Foxcroft Road, Miramar, Florida. The contract price was $1,000. The project was completed and Respondent was paid in full. The Respondent violated Section 301.1(k), South Florida Building Code by failing to obtain a permit for this project. On or about August 22, 1983, Knight Roofing Inc., contracted with Joseph Castellano to repair the roof of a home at 1215 1st Street, Indian Rocks Beach, Florida. The contract price was $600, and included a two-year warranty. At no time was a licensed roofer present at the job site. David Ness, then an unlicensed individual, contracted for the work, performed the work, and received the payments. At no time did the Respondent supervise the work on the Castellano home. After completion, the roof began to leak. Respondent has not repaired the leak, despite his warranty. Respondent violated Section 108.2(d), Standard Building Code (adopted by Indian Rocks Beach Ordinance 291) by failing to obtain required inspections. However, no evidence was presented to show that Respondent violated Section 108.2(b), Standard Building Code, since a permit was obtained. Respondent has moved, but failed to notify the Construction Board of his new address as required by Rule 21E- 15.07, F.A.C. On March 7, 1984, Respondent contracted with Ralph Huff for roofing work at 3210 N.E. 9th Avenue, Pompano Beach, Florida. The contract price was $5,725, and the work was completed. Respondent admitted at hearing that he failed to follow up on his warranty agreement. Respondent did not violate Section 305.2(a), South Florida Building Code since a final inspection was obtained on October 25, 1984.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's license. DONE and ENTERED this 25th day of June, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June, 1985. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William F. Beggs, Esquire BEGGS and VECCHIO 3012 East Commercial Boulevard Fort Lauderdale, Florida 33308 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville Florida 32202
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaints 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 was licensed as a certified general contractor in the State of Florida, having been issued license number CG C000942. At all times material hereto, Respondent was the licensed qualifying agent for Twenty First Century Construction Management, Inc. On September 5, 1992, Willie Janes, doing business as Janes Roofing Contractor, entered into a contract with Debourah Benjamin to replace the roof at her residence located in Margate, Florida. The contract price was $6,748, but Janes later agreed to do the work for $6,248, which was all Benjamin's insurance company would pay. On November 26, 1992, Benjamin gave Janes a check in the amount of $2,200 as a down payment on the work. The check was payable to Willie Janes. At the time Janes entered into his contract with Benjamin, his local roofing license had expired, and he was not licensed as a roofing contractor by the State of Florida. Respondent applied for the roofing permit for the Benjamin job. The City of Margate Building Department issued permit number 11525-R by and through Respondent's licensure on December 3, 1992. Janes commenced work on the Benjamin project on November 26, 1992. On December 8, 1992, the City of Margate Building Department performed a tin tag inspection of the work done by Janes. The work failed the inspection that day but passed two days later. On January 11, 1993, Benjamin issued a second check, in the amount of $2,300, payable to Willie Janes, for the purchase of roof tile. Janes did not order and did not pay for the roof tile until approximately June 25, 1993. The tile was delivered to Benjamin's residence a few days later and placed on the roof for installation but Janes did not return to the project site. The amount of tile delivered to Benjamin's residence was not sufficient to cover the entire roof. On approximately June 25, 1993, Benjamin noticed for the first time that the name of the company on the permit posted at her residence was Twenty First Century Construction. Neither the Respondent nor Twenty First Century Construction Management, Inc., had any involvement in Benjamin's project other than obtaining the building permit. Benjamin contacted the building department which issued the permit and was referred to Petitioner. An employee of Petitioner advised her that the qualifier for Twenty First Century Construction was Respondent. Benjamin had never heard of Respondent at the time. Benjamin contacted Respondent by telephone several times about completing the work commenced by Janes. Respondent repeatedly promised to finish the roof but never did. Benjamin next contacted the Margate Police Department to report the activities of Respondent and Janes. On September 3, 1993, Officer Liberatori of the Margate Police Department spoke to Respondent by telephone, and Respondent promised to complete the work within 30 days. However, Respondent did nothing to complete the work. The last inspection performed on the Benjamin project under permit number 11525-R was the dry-in inspection performed on February 8, 1993. Permit number 11525-R expired on July 8, 1993. In December 1993 Benjamin had the project completed by another contractor. On November 16, 1992, Delos and Barbara Johnson entered into a written contract with Respondent to remodel a porch enclosure at the Johnson residence in Coral Springs, Florida, for a contract price of $10,250. The Johnsons made three payments to Respondent: $1,000 on September 28, 1992; $5,000 on November 17, 1992; and $3,000 on December 2, 1992. On October 12, 1992, Respondent applied for a building permit from the City of Coral Springs for the Johnson remodeling. The City of Coral Springs issued permit number 920004472 by and through Respondent's licensure on November 30, 1992. When the City of Coral Springs issues a building permit, it provides with the permit a list of the required inspections. Respondent proceeded with the construction until December 2, 1992, when he received the third payment. Thereafter, Respondent ceased all construction activities on the Johnson project. Shortly thereafter, the Johnsons learned from the Coral Springs Building Department that their remodeling project had failed to pass the required inspections. When they confronted Respondent regarding his failure to obtain the required inspections, he represented to them that he had made a videotape of all the work he performed, that he himself was a building inspector and could inspect his work, and that he could get a special inspector to inspect the project from the videotape. At no time material hereto was Respondent a certified building inspector. Videotaping a construction project in lieu of obtaining required inspections is not permitted under the South Florida Building Code nor is it permitted by the City of Coral Springs Building Department. Of the required nine inspections for the project, Respondent only obtained three inspections. Of those three, he only passed two. Respondent's failure to obtain the required inspections constitutes a violation of the South Florida Building Code, the minimum standard required for any type of building construction in South Florida. A contractor's failure to adhere to that minimum standard causes harm to the public from deteriorating construction. The Johnsons and the City of Coral Springs Building Department gave Respondent an opportunity to obtain and pass the required inspections and complete the construction project. When Respondent declined to do so, the attorney hired by the Johnsons discharged Respondent. The Johnsons had paid approximately 90 percent of the money they had saved for the porch enclosure to Respondent, and they could not afford to continue with the construction project using the services of another contractor until November 1994. Rick Hugins of Hugins Construction Corp., the remedial contractor, needed to pass the required inspections that Respondent had neglected in order to be permitted by the City of Coral Springs Building Department to complete the project. Work that needed to be inspected was concealed by subsequently- installed construction materials which had to be removed in order that the required inspections could be performed. Numerous code violations were discovered in the concealed work. The work performed by Respondent was below industry standards. The Johnsons paid Hugins Construction Corp. $10,000 to correct the code violations, to pass the required inspections Respondent had missed, and to complete the project. Hugins completed the project by January 23, 1995. Respondent has been previously disciplined by Petitioner on charges of assisting unlicensed activity and of failing to notify Petitioner of his current mailing address and telephone number. That discipline included the payment of an administrative fine and an assessment of costs associated with that investigation and prosecution.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in Counts I and III of the Administrative Complaint filed against him in DOAH Case No. 97- 1365, finding Respondent guilty of the allegations contained in Counts I and II of the Administrative Complaint filed against him in DOAH Case No. 97-1368, requiring Respondent to pay restitution to the Johnsons, assessing against Respondent the costs of investigation and prosecution through the time the final order is entered, and revoking Respondent's certification as a general contractor in the State of Florida. DONE AND ENTERED this 10th day of July, 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 10th day of July, 1998. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, No. N-607 Miami, Florida 33128 Edward Conrad Sawyer, Esquire 1413 North 58th Avenue Hollywood, Florida 33021 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent Robert Kegan (Mr. Kegan) committed violations of Chapters 455 and 468, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner Department of Business and Professional Regulation (Department).
Findings Of Fact Mr. Kegan has a Certificate of Licensure from the Florida Building Code Administrators and Inspectors Board. He was first licensed in 1994, and, unless he renewed it, the license expired on November 30, 2008. At all times pertinent, he was the Building Code Administrator in Mt. Dora, Florida. Mr. Kegan has never been employed by the City of Leesburg in any capacity. The Department is the state agency charged with regulating the practice of building code administration and inspections pursuant to Section 20.165 and Chapters 455 and 468, Florida Statutes. Linda Renn purchased a home located at 2407 Winona Avenue, Leesburg, Florida, from Mr. Kegan and his wife pursuant to a contract entered into during March 2001. Prior to entering into the contract for sale, Ms. Renn walked through the house with Mr. Kegan. Ms. Renn was aware that it was an older home and testified, "And I felt very comfortable after leaving the home and doing the walk through that even though I was buying an older home with older home obsolescent issues types, but that the renovations were enough that I felt comfortable." Ms. Renn typed up an addendum to the contract prior to execution that stated Mr. Kegan would level a part of the house that required leveling, install an HVAC, install a 220-volt outlet for the clothes dryer, and would accomplish certain other improvements prior to closing on the home. The addendum became part of the contract for sale. Mr. Kegan provided Ms. Renn with his business card indicating that he was the Building Code Administrator in Mt. Dora. Ms. Renn observed Mr. Kegan in a shirt with the Mt. Dora logo upon it, indicating that he was a building official of Mr. Dora, and she visited him in his office in Mt. Dora. There is no question Ms. Renn was aware that he was a building official in Mt. Dora. Ms. Renn claimed that because he was a building official she completely relied on the representations he made to her. However, this assertion lacks credibility because she employed an independent home inspector prior to closing. During the walk-through, the HVAC was resting upon the floor of the home's garage. However, at a time between March 17 and April 29, 2001, Mr. Kegan had the HVAC installed, as he agreed. Subsequently, Ms. Renn discovered this work was accomplished by an unlicensed individual. An inspection of the premises was conducted by Guy Medlock of Benchmark Building Inspections, Inc., on March 29, 2001. A report was issued on March 30, 2001. The report noted that the dwelling was 53 years old and had problems that one would expect from a home that old. Mr. Medlock also noted that the house had a lot of charm. Mr. Medlock's inspection noted that the dwelling required roof repairs and wood rot repairs. It was noted that it was necessary to ameliorate water leaks and correct electrical deficiencies, among other items. There were seven items noted with estimated costs of repair ranging from $50.00 to $150.00. At the time of the inspection, the 220-volt receptacle had not been installed for the washer and dryer. Mr. Medlock further noted that there was no plumbing available for the washer. Because of Mr. Medlock's report, Ms. Renn was well aware of the defects he noted, and she knew this prior to closing. The report stated that he, Mr. Medlock, had discussed the electrical deficiencies with Ms. Renn and suggested that she have an electrician inspect the dwelling. Ms. Renn testified that she gave greater weight to Mr. Kegan's knowledge than to the home inspector that she hired, but there is no basis in the record for her to arrive at that conclusion. On April 29, 2001, the day before closing, Economy Electric of Eustis, Florida, installed a 220-volt line, and Mr. Kegan paid for this work. Economy Electric's principal is Larry New. He is licensed to accomplish electrical work. He performed additional electrical work that was paid for by Ms. Renn, including upgrading wires so that her computer would not be damaged by bad wiring. On April 30, 2001, Mr. and Mrs. Kegan conveyed the premises to Ms. Renn by warranty deed. Subsequently, Ms. Renn concluded that she was not happy with certain facets of the house, and tried to contact Mr. Kegan to have her perceived problems corrected. Mr. Kegan was difficult to contact. In a letter dated November 4, 2001, Ms. Renn filed a 16-page complaint with the Department alleging numerous Florida Building Code violations by Mr. Kegan. She requested that the Department investigate these alleged violations. Sometime immediately prior to January 10, 2002, Ms. Renn had Raymond Anderson of Suter Air Conditioning, Inc., of Leesburg, inspect the HVAC. He made Ms. Renn aware of several city code infractions involving the HVAC. Sometime immediately prior to January 11, 2002, Ms. Renn had someone named James A. Dolan inspect the electrical service at the premises. In a letter dated January 11, 2002, Mr. Dolan stated that there were "national electrical code violations" at the house and that it was his opinion that an electrical inspector or building code official should look into the situation. Ms. Renn believed this to be true. Sometime immediately prior to February 5, 2002, Ms. Renn had the electrical service inspected by Bronson Electric Service, Inc., of Eustis, Florida. In a letter dated February 5, 2002, David E. Bronson reported numerous electrical deficiencies, including an improperly fused air conditioning unit. Mr. Bronson found that the electrical service to the house required an upgrade to 150 amps because the current service was inadequate. He quoted a price of $1,546.00 to accomplish the required modifications. Ms. Renn believed this to be accurate. Ms. Renn employed an inspector from Ocala, Florida, who prepared an inspection report dated May 10, 2002. She learned there were plumbing, electrical, and mechanical problems. She also learned that the roof did not meet building code standards. She noted that for a period of two and one-half years, the HVAC neither cooled nor heated, although it did make some noise. Permits were required for the electrical upgrade and for the air conditioning installation in Ms. Renn's house. No permits were obtained by Mr. Kegan, or his friends, or persons he employed to work on Ms. Renn's house, as were required by the City of Leesburg. By April 18, 2002, all permits had been obtained. Unlicensed persons worked on both the HVAC installation and the electrical upgrade. Work of that sort is lawful only if accomplished by licensed persons. The work accomplished without the appropriate permit and the work done by unlicensed persons, was done under the control of Mr. Kegan. Ultimately, Larry New, a licensed electrician, and Jimmy Harris, a licensed person, fixed all of the problems; got the work inspected; and ensured that all permits were in place. After her complaint to the Department which was drafted November 4, 2001, and submitted in early 2002, Ms. Renn was informed by the Department that she should handle the case locally. Complaints were made by Ms. Renn to the Leesburg Building Department and to many other officials of the Leesburg municipal government. Ultimately, a hearing regarding Mr. Kegan was held before the Lake County Board of Building Examiners (County Board) on August 7, 2003, in Tavares, the county seat of Lake County. Both Leesburg and Mt. Dora are in Lake County. The County Board heard charges against Mr. Kegan's contractor's license for accomplishing work in the trades of roofing, electrical, mechanical, and plumbing using unlicensed workers and failing to obtain permits. It imposed sanctions, including a $1,000 fine. The County Board required Mr. Kegan to do the work he promised, but it was clear that he had already accomplished that work, except for some roofing issues not further identified. The County Board did not address his position as the Building Code Administrator in Mt. Dora, Florida. The action of the County Board was subsequently reversed by a circuit court. Relations between Ms. Renn and Mr. Kegan eventually deteriorated to the point where Ms. Renn had a trespass warning served on Mr. Kegan and sought to have the state attorney prosecute him for trespass. She was not successful in this. She also sued Mr. Kegan civilly, but eventually she voluntarily dismissed the case. None of the actions taken by Ms. Renn, resulted in Mr. Kegan being disciplined. At some point thereafter, Ms. Renn appeared to be satisfied with her house and the retaliation she had visited upon Mr. Kegan. However, while Ms. Renn was "working on legislation" in Tallahassee, Florida, in 2006, she was asked by a Department attorney to reopen the case. Other than the transcript from the County Board hearing of August 7, 2003, nothing had changed. Every problem she had with the house that should have been ameliorated, had been ameliorated. Nevertheless, she did as asked by the Department attorney, and this case was filed. Ms. Renn sent two letters dated April 3, 2006, and one letter dated April 21, 2006, to the Chief Professions Attorney of the Department. The latter missive was a follow-up to the April 3, 2006, communications. The April 3, 2006, communications are considered complaints as contemplated by Subsection 468.619(4), Florida Statutes (2005). There is no evidence of record that Mr. Kegan was informed of the complaint or that he was permitted 30 days to respond as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005). There is no evidence of record that the Department submitted the complaint regarding Mr. Kegan to a probable cause panel for review as contemplated by Subsection 468.619(4)(b), Florida Statutes (2005), within 180 days. There is no evidence to the contrary, either. In summary, the Department has proven that Mr. Kegan, during 2001 and 2002, caused work to be accomplished at 2407 Winona Avenue, Leesburg, Florida, when he owned the house, as well as after he sold the house to Ms. Renn, and this work was done without proper permits and, on occasion, by persons who had no license when a license was required.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss the Administrative Complaint in the case of Robert Kegan. DONE AND ENTERED this 13th day of January, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 13th day of January, 2009. COPIES FURNISHED: Harry T. Hackney, Esquire Harry Thomas Hackney, P.A. 3900 Lake Center Drive, Suite A1 Mount Dora, Florida 32757 Elizabeth F. Duffy, Esquire Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether pursuant to Sections 57.111 or 120.595(1), Florida Statutes, Petitioner Rafael R. Palacios (Palacios) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by the Respondent, Department of Business and Professional Regulation (Department). Whether pursuant to Section 120.595(1), Florida Statutes, Petitioner Steven L. Johns (Johns) should be awarded reasonable costs and attorney's fees incurred in defense of an administrative proceeding against him that was initiated by Respondent.
Findings Of Fact Petitioner, Steven L. Johns, is a Florida Certified General Contractor and the principal qualifier for C. G. Chase Construction Company (Chase Construction). In 1994, Chase Construction entered into a construction contract with Carnival Cruise Lines for an expansion project at the Port of Miami. Chase Construction subcontracted the mechanical work to R. Palacios & Company. Petitioner, Rafael R. Palacios, is the president, primary qualifier, and 100 percent stockholder of R. Palacios & Company. Palacios' principal place of business is located in Miami, Florida. In July and December 1998, Palacios employed less than 25 employees and had a net worth of less than $2,000,000. The contract for the Port of Miami project consisted of two phases. Phase I was to construct an arrival lobby and an enclosed walkway to a terminal. Phase II included the addition of boarding halls, the renovation of an existing elevated area, and the addition of baggage areas. A foundation permit had been pulled for Phase I. The foundation work was quickly completed, and Chase Construction representatives advised both the Port of Miami and Carnival Cruise Lines that they could go no further without a permit. Work stopped for a short period of time. In June 1995, a Representative from the Port of Miami called Chase Construction and told them to go to the Dade County Building and Zoning Department (Building Department) the next day to meet with Port of Miami officials, the architect, and building and zoning officials. Johns sent Dave Whelpley, who was a project manager and officer of Chase Construction. Palacios did not attend the meeting. Dr. Carlos Bonzon (Bonzon) was the director and building official of Dade County's Building Department during the majority of the construction activities at the Port of Miami by Chase Construction. As the building official, Dr. Bonzon gave verbal authorization for the work on the project to proceed above the foundation without a written permit. Inspections were to be done by the chief inspectors for Dade County. After the meeting with the Building Department officials in June 1995, Johns understood that authorization had been given by the building official to proceed with construction without a written permit. Work did proceed and inspections were made on the work completed. The Dade County Building Code Compliance Office (BBCO) had the responsibility to oversee Dade County's Building Department. In early 1996, an officer of the BBCO accompanied a building inspector during an inspection of the Port of Miami project. It came to the attention of the BBCO officer that no written permit had been issued for the project. The BBCO officer notified the chief of code compliance for Dade County. A written permit was issued for Phase II of the Port of Miami Project on February 6, 1996, at which time approximately 80 percent of the work had been completed. On the same date, Chase Construction issued a memorandum to its subcontractors to secure the necessary permits. Shortly after the permits were issued, an article appeared in the Miami Herald concerning the project and the lack of written permits. Respondent, Department of Business and Professional Regulation (Department) became aware of the situation as a result of the newspaper article and began an investigation. Diane Perera (Perera), an attorney employed by the Department since 1993 to prosecute construction-related professional license law violations, played a major role in determining and carrying out the Department's subsequent actions regarding the Port of Miami project and persons licensed by the Department who had been involved in the project. The Department opened investigations against eight Department licensees. Those licensees included two building officials, Bonzon, and Lee Martin; four contractors, Johns, Palacios, Douglas L. Orr, and D. Jack Maxwell; one engineer, Ramon Donnell; and one architect, Willy A. Bermello. By Administrative Complaint prepared by Perera and filed on September 9, 1997, before the Building Code Administrators and Inspectors Board (BCAIB), the Department charged Bonzon with various violations of Part XIII of Chapter 486, Florida Statutes, for having allowed above-grade construction on the project to proceed in the absence of approved plans and building permits. In conjunction with the Bonzon case, Charles Danger (Danger), a licensed professional engineer and Director of BBCO testified in a deposition that above-grade construction of the project had proceeded without a building permit and without approved plans in violation of Chapter 3, Section 301 of the South Florida Building Code. He also testified that Bonzon had exceeded his authority under the South Florida Building Code by authorizing the above-grade construction and that the contractors who performed the work did so in violation of the South Florida Building Code. The Department's charges against Bonzon were resolved through a settlement agreement, whereby Bonzon agreed to relinquish his building code administrator's license. A final order of the BCAIB accepting the settlement agreement was filed on July 2, 1998. In the settlement agreement, Bonzon specifically agreed that his interpretation of the South Florida Building Code provisions, including portions of Section 301, was erroneous. On June 24, 1998, the Department presented the Department's Case Number 97-17322 involving Johns to the Division I Probable Cause Panel (PCP) of the Construction Industry Licensing Board (CILB). The panel members on this date were Gene Simmons and Wayne Beigle. Stuart Wilson-Patton and Leland McCharen, assistant attorneys general, were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the panel was Perera. The Department was requesting a finding of probable cause against Johns for a violation of Section 489.129(1)(d), Florida Statutes, for knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and specifications. Prior to the meeting of the Division I PCP of the CILB, Perera had furnished the two panel members documentary evidence pertaining to the case, copies of which were received in evidence at the final hearing as Respondent's Exhibits 5 and 13, with the exception of a letter dated July 31, 1998, from Petitioners' attorney, Renee Alsobrook. Respondent's Exhibit 5 consisted of materials taken from the Bonzon and Lee Martin cases, including the transcript of the December 22, 1997, deposition of Charles Danger, who was the building officer for the BBCO from 1991 to 1998. Respondent's Exhibit 13 was the investigative file for the Johns' case. The Division I PCP discussed Johns' case and voted to request additional information regarding whether any fast track ordinance existed in Dade County, and if so, how it might have applied to the Port of Miami project. On June 24, 1998, the Division II PCP of the CILB met and discussed the Palacios case, which was designated as the Department's Case No. 97-17313. The members of the panel were James Barge and Richard Cowart. Mr. Wilson-Patton and Mr. McCharen were present to provide legal advise to the PCP. The prosecuting attorney presenting the case to the PCP was Perera. The Department was requesting a finding of probable cause against Palacios for violating Section 489.129(1)(d), Florida Statutes, by knowingly violating the applicable building code by performing above-grade construction work on the Port of Miami project in the absence of approved plans and a building permit. Prior to the Division II PCP meeting, the panel members were provided with materials which were received in evidence at the final hearing as Respondent's Exhibits 5 and 14, with the exception of letters dated July 31 and August 26, 1998, from Renee Alsobrook. Respondent's Exhibit 14 is the Department's investigative file on the Palacios case. Following a discussion of the Palacios case, one of the panel members made a motion not to find probable cause. The motion died for lack of a second, and the panel took no further action on the case that day. Pursuant to Section 455.225(4), Florida Statutes, the case was treated as one in which the PCP failed to make a determination regarding the existence of probable cause and was presented to Hank Osborne, Deputy Secretary of the Department, to make a determination whether probable cause existed. On July 2, 1998, Deputy Secretary Osborne found probable cause, and the Department filed an Administrative Complaint against Palacios, charging a violation of Section 489.129(1)(d), Florida Statutes. The Department never served Palacios with the Administrative Complaint filed on July 2, 1998. The Department did not notify Palacios that the Administrative Complaint had been filed and did not prosecute the Administrative Complaint. At the time the Administrative Complaint was filed, the Department believed that the Legislature was in the process of enacting legislation to repeal Section 489.129(1)(d), Florida Statutes. Chapter 98-419, Laws of Florida, which became law on June 17, 1998, repealed Section 489.129(1)(d), Florida Statutes, effective October 1, 1998. Because of the repeal and the lack of a savings clause for pending cases, the Department determined that as of October 1, 1998, the Department did not have authority to take disciplinary action based on a violation of Section 489.129(1)(d), Florida Statutes. On December 18, 1998, the Department presented the Department's Case Nos. 97-17133 and 97-1732 to the PCPs for a second time with a recommendation to find probable cause that Johns and Palacios had violated Section 489.129(1)(p), Florida Statutes, for proceeding on any job without obtaining applicable local building permits and inspections. Mr. McCharen was present to provide legal advice to the PCPs. Ms. Perera was also present during the meetings of the PCPs. Documentary materials presented to the PCP considering Palacios' case included the materials on the Bonzon and Martin cases which had been previously presented to the PCP panel in June 1998 and the investigative files on Palacios. The investigative file included letters with attachments from Palacios' attorney Rene Alsobrook concerning the materials contained in the Bonzon and Martin cases as they related to Palacios and the investigative file on Palacios. Additionally, the investigative file contained a report from Frank Abbott, a general contractor who had been asked by the Department to review the file on Palacios. Mr. Abbott concluded that Palacios had violated several provisions of Chapters 489 and 455, Florida Statutes, including Section 489.129(p), Florida Statutes. The PCPs found probable cause in the Johns and Palacios cases. On December 23, 1998, the Department filed administrative complaints against Palacios and Johns alleging violations of Section 489.129(1)(p), Florida Statutes. The cases were forwarded to the Division of Administrative Hearings for assignment to an administrative law judge. Palacios and Johns claimed that they were relying on the authorization from Bonzon when they proceeded on the above-grade construction work. No formal administrative hearing was held on the administrative complaints filed on December 23, 1998. On December 18, 1998, a Recommended Order was issued in the related case against Lee Martin, Department Case No. 97-11278, finding that Mr. Martin, the building official who replaced Bonzon and assumed responsibility for the Port of Miami project, had the discretion to allow the remaining construction to proceed while taking action to expedite the plans processsing. A Final Order was entered by the Department dismissing all charges against Mr. Martin. On February 26, 1999, Petitioners Palacios' and Johns' Motions to Dismiss and Respondent's responses were filed. The Motions to Dismiss did not request attorney's fees or costs and did not reference Section 120.595(1), Florida Statutes. The motions did contain the following language: The DBPR has acted in an improper and malicious manner by precluding the Respondent from asserting his response to the second draft Administrative Complaint and requesting the Panel to find probable cause for reasons other than whether there was probable cause to believe the Respondent violated specific disciplinary violations. On March 19, 1999, the cases were consolidated and noticed for hearing on May 12-13, 1999. Section 489.129, Florida Statutes, was amended during the 1999 legislative session to provide: A contractor does not commit a violation of this subsection when the contractor relies on a building code interpretation rendered by a building official or person authorized by s. 553.80 to enforce the building code, absent a finding of fraud or deceit in the practice of contracting, or gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property on the part of the building official, in a proceeding under chapter 120. . . . On April 15, 1999, the Department filed a Motion for Leave to Revisit Probable Cause Panel and to Hold in Abeyance. On April 20, 1999, Petitioners filed a response, stating they did not object to the granting of the motion to hold in abeyance. The final hearing was cancelled, and the cases were placed in abeyance. On May 24, 1999, the Department submitted a Status Report, stating that the cases would be placed on the next regularly scheduled PCP meeting scheduled for June 16, 1999. By order dated May 25, 1999, the cases were continued in abeyance. On July 1, 1999, Palacios and Johns filed a Status Report, indicating that the cases would be presented to the PCPs sometime in July and requesting the cases be continued in abeyance for an additional 30 days in order for the parties to resolve the issues. On July 30, 1999, Palacios and Johns filed a Status Report, stating that the cases were orally dismissed on July 28, 1999, and that a hearing involving issues of disputed facts was no longer required. Based on Johns' and Palacios' status report, the files of the Division of Administrative Hearings were closed by order dated August 3, 1999. No motion for attorney's fees and costs was filed during the pendency of the cases at the Division of Administrative Hearings. On August 3, 1999, orders were entered by Cathleen E. O'Dowd, Lead Attorney, dismissing the cases against Palacios and Johns.
Findings Of Fact This cause comes on for consideration based on the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board, now referred to as State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board. The essential allegations of the Administrative Complaint are as found in the issue statement of this Recommended Order and that discussion in the issue statement is incorporated into the Findings of Fact and made a part hereof. The Petitioner, State of Florida, Department of Professional Regulation, Florida Construction Industry Licensing Board, is an agency of the State of Florida, which has the responsibility to regulate those individuals who serve the public in the capacity of contractors in the State of Florida. This regulatory function carries with it the obligation to prosecute those individual licensees whom the regulatory agency believes to have committed offenses as defined by Chapter 468, Florida Statutes. The possible outcome of such a prosecution carries with it the potential revocation or suspension of the license of those persons regulated by the agency. On this occasion, by Administrative Complaint, the Petitioner has charged E. J. Pollock, d/b/a Miami Advertising, Inc., with violations of Chapter 468, Florida Statutes, as set out herein. The Respondent has replied to the Administrative Complaint by reguesting a Subsection 120.57(1), Florida Statutes, hearing, which de novo hearing was held on the date and at the time and place set out above. E. J. Pollock, d/b/a Miami Advertising, Inc., is the holder of a Certified general Contractor's license, No. CG C004577, held with the Petitioner. That license was current and active in October, 1975, and continued as an active license until the year 1977 when the license became inactive and it remains inactive at this time. The facts reveal that the Respondent in 1975 entered into a discussion with Dr. Thor Brickman about assisting Dr. Brickman in obtaining a building permit from the Metropolitan Dade County Building and Zoning Department, Dade County, Florida. This permit was to allow the construction of certain office alterations of Dr. Brickman's office located at 1136 N.W. 119th Street, Dade County, Florida. The plans and specifications for such alterations may be found as Petitioner's Exhibit No. 8 admitted into evidence. After some discussion, the Respondent and Dr. Brickman concluded an arrangement by which the Respondent would act as a contractor on the job, in the sense of having the overall responsibility for its construction. This included the responsibility to pay the workers, sub contractors and material man. The agreement between Pollock and Brickman was one in which Pollock was acting in his individual capacity as opposed to through affiliation with a contracting firm. However, at the time Pollock entered into this agreement with Dr. Brickman, his Certified general Contractor's license had been transferred to an affiliation with Miami Advertising, Inc. The Respondent had made this transfer in anticipation of a job to be performed for Miami Advertising, Inc., and in fact certain preliminary matters had been concluded with Pollock acting as manager for the project for Miami Advertising, Inc. Miami Advertising, Inc., was without knowledge of the contract between Pollock and Dr. Brickman. Notwithstanding the lack of knowledge on the part of Miami Advertising, Inc., and the representations to Brickman that the Respondent was acting in his individual capacity when he contracted to remodel Brickman's office, the Respondent applied for a building permit to be issued by the Dade County Building and Zoning Department and in doing so he indicated that he was securing that permit as a qualifier for Miami Advertising, Inc. This can be seen in the petitioner's Exhibit No. 5 admitted into evidence which is a copy of the building permit application as issued on October 31, 1975. Pollock commenced the work and Dr. Brickman paid Pollock directly for the work that was being done. The parent checks were endorsed and cashed by Pollock. The amount Pollock received totaled $6,797.22. Sometime in December, 1975, the owner, Dr. Brickman, became disenchanted with some of the workers whom Pollock had on the job in the sense that those workers had been drinking while on the job. Brickman advised Pollock of this and indicated to Pollock that he did not want those persons on the job without supervision. Nonetheless, the owner continued to advance money to Pollock to pay for the job as contracted for. In January, 1976, the Respondent left the job and Brickman was of the impression that the roof on the extension was finished and that there was no problem with the roof, but this impression was wrong because in February, 1976, one of the owner's tenants began to complaint about the roof leaking and those complaints continued until the tenant moved out due to water damage. This caused Brickman to lose moneys in rentals. When Brickman spoke with Pollock about the leaking roof, Pollock sent a roofer to the job to see about the problems but Brickman was not satisfied with that roofer and declined to have him make any corrections to the roof job. (Although the Respondent denies the responsibility for the completion of the roofing work on the Brickman project, the testimony clearly reveals that he had accepted that responsibility as a part of the contract.) The roofer spoken of, whose name is Montgomery, came to the job in March, 1976. Subsequent to Montgomery's visit, problems continued to occur with the roof and the condition of the roof in April, 1976, and the interior of the building may be seen in the Composite Exhibit No. 1 by the Petitioner, which is a series of photos depicting the roof and interior. Pollock would not return and complete the job and Dr. Brickman made a complaint to cause administrative charges against the Respondent. This original complaint was dropped and in November, 1977, Pollock called about completing the job which was still unfinished. Brickman agreed to have Pollock cane and complete the job. Pollock did not return to the job as he stated he would do. In December, 1978, a representative of the Metropolitan Dade County Building and Zoning Department went to the project and found that the job was closed and found that no framing inspection had been requested by Pollock and completed as required by Metropolitan Dade County Building and Zoning Department Code. Other matters within the job site were found to be deficient. The original building permit had expired and the required roofing permit had never been granted. The condition of the project as it existed at the time of the inspection may be found in certain photographs taken by the Building Inspector which may be found as a part of the Petitioner's Composite Exhibit No. 2 admitted into evidence. The problem with permits was subsequently rectified; however, based upon the inspector's evaluation, notices of violations were filed in January, 1979, against the Respondent Pollock. The violations spoken to above were for violations of the building and zoning code, particularly Metropolitan Dade County Building and Zoning Department Code No. 305.2, failure to call for inspections between October 31, 1971, and January 4, 1979, and Metropolitan Dade County Building and Zoning Department Code Section No. 304.4(b), failure to construct office alterations according to plans between October 31, 1975, and January 4, 1979. (These provisions are part of the South Florida Building Code which is used by Metropolitan Dade County.) The charges were made through a two-count information in Case 79-53600 in the County Court in and for Dade County, Florida. For the former violation, the Respondent was adjudged guilty and received a fine of $750.00 with $25.00 court costs, and for the latter count Pollock was sentenced, with the sentence being suspended from day to day and term to term. This Statement of Charges and Disposition may be found as petitioner' s Composite Exhibit No 3 admitted into evidence, a copy of the Charges, Judgment, Sentence and Order of the Court. The Respondent, Pollock, was also charged by Metropolitan Dade County with a violation of the Code of Metro Dade, Chapter 10, Section 10-22 (b), abandonment of the construction project without legal authority. (The disposition of that charge is unknown to the Hearing Officer, in that it was not presented as a matter of proof in the course of the hearing and the facts of the existence of such charge came in by a stipulation of fact between the parties to this action.) The Respondent returned to the job in January, 1979, and on the date of the hearing 95 to 99 percent of the job had been completed. Still remaining to be completed were certain roofing work with metal-to-metal soldering and gravel stops to be concluded and at that time the roof was still leaking. In view of the damage to Brickman' s property, a claim was made against the liability insurance required by Subsection 468.106(6), Florida Statutes. This claim was denied by the insurance carrier because their insurance covered Miami Advertising, Inc., only, and that company had no knowledge of the contract or the job. An indication of this denial may be found as Petitioner's Composite Exhibit No. 4 admitted into evidence, which are copies of letters denying coverage. They are addressed to Dr. Brickman and are from Parliament Insurance Company, insurer of Miami Advertising, Inc.
Recommendation It is recommended that the Respondent, E. J. Pollock, who holds his license as qualifier for Miami Advertising, Inc., License No. CG C004577, be suspended for a period of one (1) year. This recommendation is made with the knowledge of the letters offered in mitigation of the penalty. DONE AND ENTERED this 26th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire Sinoff, Edwards & Alford 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 H. Adams Weaver, Esquire 310 Okeechobee Boulevard Post Office Box "M" West Palm Beach, Florida 33402 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD
