The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
The Issue Based upon the stipulated facts, only one issue, a legal one, must be resolved. The issue is whether Section 489.111(4)(c), Florida Statutes, is properly applied by the Board which interprets this section to require a minimum of four years of experience as a certified contractor. Having considered the statute and the Board's position in applying the interpretation above, it is concluded that the Board's interpretation is erroneous.
Findings Of Fact The Petitioner, Margaret K. Roberts, was licensed as a Certified Building Contractor October 19, 1984. Petitioner filed an application to take the State Certified General Contractor's Examination on or about December 19, 1984. At the time Petitioner applied to take the Certified General Contractor's Examination, she held Certified Building Contractor's License No. CB C031970 and she had four years of proven experience in the Certified Building Contractor's field, although she had only been certified as a building contractor since October 19, 1984. One may obtain experience in an area of contracting without being certified. Petitioner is not qualified by virtue of holding a baccalaureate degree or experience as a residential contractor. Petitioner was not certified as a building contractor for four years prior to applying for the general contractor's examination. Petitioner's only basis of claimed eligibility to take the General Contractor's Examination is Section 489.111(4)(c), Florida Statutes. The Respondent denied the Petitioner's application to take the certification examination because of insufficient time as a certified building contractor in accordance with Florida Statutes 489.111(4)(c). Other than the issue of requisite experience as a certified contractor, Petitioner meets all other statutes and Board Rules regarding eligibility for the Certified General Contractor's Examination.
Recommendation Based upon the stipulated facts and the conclusions of law, it is recommended that Section 489.111(4)(c), Florida Statutes, be interpreted to include qualifying service in a non-certified capacity and that Petitioner's application to take the building contractor's examination be approved. DONE AND ORDERED this 11th day of March, 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1986 COPIES FURNISHED: James 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 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maxwell G. Battle, Esquire 8204-A West Waters Avenue Suite 350 Tampa, Florida 33615 Arden Siegendorf, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD MARGARET K. ROBERTS, License No. CB-C031970 Petitioner, DOAH CASE NO. 85-2240 DEPARTMENT OF PROFESSIONAL REGULATION Respondent. /
The Issue The issue for consideration at this hearing is whether Respondent's certification as a communications systems specialty contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County Construction Licensing Board, was the county agency responsible for licensing contractors in the construction trades in Pinellas County and for the regulation of the profession of contracting in that county. Respondent, Michael G. Linton held license No. C-5513 as a certified communications systems specialty contractor in Pinellas County. On or about June 14, 1995, Kim and Vincent Carter, tenants at a residence located at 118 7th Street in Belleair Beach, Florida, contacted Respondent to secure his assistance in moving the satellite reception dish which he had initially installed for them to their new residence. On that date, Respondent issued an invoice to the Carters on which he indicated he was to reinstall their satellite system for $300.00. The statement was signed by Respondent and also bears the apparent signature of V.J. Carter. Mr. Linton claims it was Mrs. Carter who signed the statement authorizing the work, however, but she denies it and Mr. Carter claims it was he who signed it. Mr. Carter disconnected the system inside the residence and helped to take down the outside dish. Respondent moved the dish from the Carter's old residence to their new residence where it was to be reinstalled. Respondent did not pull a permit from the City of Belleair Beach to construct the base for the antenna dish. A permit was required. Mr. Linton claims he did not dig the hole for the base into which he poured the cement but that the base hole was dug by Mr. Carter. Mr. Carter denies having done so. Whoever dug the hole, it did not meet code requirements since it was only 20 inches deep and the code requires a base of concrete at least 48 inches deep. The length and breadth of the slab depends on the size of the satellite dish and the length of the pole on which it will be affixed. The Carters deny that they agreed to pull the permit for this work, claiming that since they are not the owners of the property, they cannot do so. This is not so, however, because, under the terms of the Code, (Section 6- 3(a)(1), either the owner of the property or the authorized agent of the owner can pull the permit. If authorized by the owner of the new residence, either the Carters or the contractor may have pulled the permit. Neither did. Respondent claims he was hired by the Carters only to help them move their satellite system. He was to be paid between $300.00 and $350.00, and Mr. Carter was to help. Because Carter and Mr. Moore, the building official, were old friends, Carter was to pull his own permit and that was put on the invoice. The Carters claim this notation was not there when they signed the invoice. Respondent claims he would have charged $150.00 extra to pull the permit. Respondent admits he holds himself out as a communications systems contractor and that he was retained by the Carters to do work related to the move of their satellite system from one residence to another, but only to help Mr. Carter. He admits he knew a permit was required for the construction of the new base and, though he may not have known whether a permit had been pulled before he poured the new base, he did not pull it himself or insure that one had been pulled. He now admits he should not have relied on the Carters' representations that they would take care of it. He also did not insure that the base which was poured conformed to the requirements of the approved engineering for the installation. The city's building official, Mr. Moore, inspected the work site, on two separate occasions. He first found the hole to be too shallow. When he came back to reinspect, the cement had been poured and he could not gauge the depth, finally accepting the certification of the subsequent contractor that the base conformed to specifications. The conforming work was not done by Respondent but by a subsequent contractor hired by the Carters, Satellite Communications and Electronics, Inc. The Carters were billed an additional $250.00 for this follow up work. This included a fee of $150.00 for pulling the required permit.
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 finding Respondent guilty of the offenses alleged, placing his license on probation for six months, and imposing an administrative fine of $250.00. DONE and ENTERED this 12th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5933 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. None submitted. Respondent's Proposed Findings of Fact. Respondent's counsel did not number the facts urged in that portion of his submittal described as "Respondent's version Of The Facts." Therefore, the four paragraphs in that section will be addressed individually. Accepted. Accepted, but the contractor must not begin work without a permit being issued. Not a proper Finding of Fact but a comment on the state of the evidence. Accepted. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 Louis Bakkalapulo, Esquire The Wilder Center Suite 404 3000 Gulf to Bay Boulevard Clearwater, Florida 34619
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
The Issue Whether Petitioner is entitled to be certified by endorsement as a standard building inspector.
Findings Of Fact Respondent is the agency of the State of Florida that certifies standard building inspectors pursuant to the provisions of Part XII of Chapter 468, Florida Statutes (consisting of Sections 468.601 - 468.633). By application dated November 7, 1996, Petitioner applied for certification as a building inspector. This application contemplated that Petitioner would sit for the certification examination. Respondent determined that Petitioner was qualified to sit for the Principles and Practice portion and the Technical portion of the certification examination. Petitioner did not achieve a passing score on the certification examination. Consequently, his application for certification was rejected. By application dated December 22, 1997, Petitioner applied for certification as a building inspector without having to take the licensure examination. This was properly construed by Respondent to be an application for certification by endorsement. Petitioner requested Respondent to waive the certification examination pursuant to the provisions of Section 468.613, Florida Statutes, which provide as follows: The board shall examine other certification of training programs, as applicable, upon submission to the board for the consideration of an application for certification by endorsement. The board shall waive its examination, qualification, education, or training requirements to the extent that such examination, qualification, education, or training requirements are determined by the board to be comparable with those established by the board. By his application dated December 29, 1997, Petitioner sought certification based upon his qualifications1 and upon what his counsel referred to as "substantially equivalent" exams. The "substantially equivalent" exams to which counsel for Petitioner referred were to the examinations Petitioner passed in order to be licensed as a general contractor and as a roofing contractor. Petitioner's application reflects that he passed licensure examinations during 1983 in Broward County and in Dade County in the general contractor category. Petitioner passed a similar examination in Palm Beach County, Florida, in 1986. Part XII of Chapter 468, Florida Statutes, was created by Chapter 93-166, Laws of Florida. Prior to 1993, there was no state-wide certification of building inspectors. There was no evidence as to the contents of the examinations Petitioner passed in 1983 and 1986, and there was no evidence as to the contents of the certification examination administered by Respondent to candidates for certification as building inspectors. Consequently, there is no basis upon which a comparison of these examinations can be made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for certification by endorsement be denied. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. 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 21st day of April, 1999.
