98-004869 Department Of Highway Safety And Motor Vehicles vs. Jamie Hewett Status: Closed Recommended Order on Thursday, May 6, 1999.

Summary: Evidence showed that mobile home installer did not follow manufacturer`s instructions in setting up mobile home. Recommend violation fine and probation with supervision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) Case No. 98-4869

)

JAMIE HEWETT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 23, 1999, in Quincy, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Gabrielle L. A. Taylor, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

Tallahassee, Florida 32399-0504

For Respondent: Lawrence F. Kranert, Jr., Esquire

Post Office Box 186

Chattahoochee, Florida 32324

STATEMENT OF THE ISSUE

Whether Respondent's mobile home installer's license should

be disciplined, suspended, revoked or fined.

PRELIMINARY STATEMENT

On October 16, 1997, Petitioner, Department of Highway

Safety and Motor Vehicles, filed an Administrative Complaint

against Respondent, Jamie Hewett, alleging that Respondent's

mobile home installer license should be disciplined for violating

Section 320.8249, Florida Statutes, and Rules 15C-1.0102 through

15C-1.0104, Florida Administrative Code. Specifically, the

Administrative Compliant alleged that Respondent improperly

installed a mobile home for David Cay at 7643 Meridale Road in

Woodville, Florida. The complaint also alleged that Respondent

installed two mobile homes in 1997 which had similar or identical

violations. At the hearing, Petitioner stipulated that the 1997

incidents were being offered in aggravation of the proposed

penalty and to show knowledge.

Respondent requested a formal administrative hearing. The

case was forwarded to the Division of Administrative Hearings.

At the hearing, the Department offered the testimony of two

witnesses and submitted six exhibits into evidence. Respondent

testified in his own behalf and offered the testimony of one

other witness. Respondent did not offer any exhibits into

evidence.

FINDINGS OF FACT

1. Respondent is c urrently and at all times relevant to

this proceeding licensed as a mobile home installer pursuant to

Section 320.8249(9)(g), Florida Statutes.

2. On August 3, 1998, Respondent installed a 1998 Homes of

Merit, triple-wide mobile home for David Cay at 7643 Meridale

Road in Woodville, Florida.

3. On August 24, 1998, Petitioner's employee, David Cowfer,

conducted a random inspection of the Cay mobile home. The

inspection was for the purpose of determining compliance with the

manufacturer's installation instructions and component

manufacturer's installation instructions.

4. The Cay mobile home had about 40, four foot long rod

anchors with shovel-like stabilizer plates attached.

5. When Mr. Cowfer inspected the Cay mobile home, he found

that about one-third of the anchors had not been driven to the

soil surface or to the top of the plate. The ground surface was

about three or four inches below the tension head.

6. Additionally, when Mr. Cowfer inspected the anchors on

the Cay mobile home, he found that almost all of them had 10 to

16 inch holes around them exposing the stabilizer plates.

7. When a mobile home's anchors are not properly installed,

or buried, they can fail, resulting in the home going off its

foundation or going airborne, endangering any people inside.

8. The installation instructions for the type of anchor

used on the Cay mobile home provide as follows:

CAUTION: Anchors must be inserted in the

ground all the way to the head of the anchor,

such that no rod is above the ground.

Installer is responsible for compliance with

all ordinances, codes, laws and other

requirements.

For vertical pull, continue to operate

machine until the head of the anchor is flush

with the ground. (Illustration B) If the

anchor is to be used for horizontal pull,

(frame attachment) stop the driver, with the

head about 12 inches from the ground, install

an approved stabilizer against the anchor

shaft with the top flush to the ground.

(Illustration C). Now continue to drive the

anchor the remaining 12 inches until the

anchor head makes contact with the top of the

stabilizer, and the head of the anchor is in

line with the frame.

Note: For anchors over three feet in length

it is acceptable to excavate the first 24

inches of soil either before installing the

anchor provided the earth is replaced by

backfilling 1 foot, tamping and adding 1

gallon of water, and then complete filling in

the hole, tamp earth and spray with one

gallon of water.

9. Clearly the anchors which were above the ground we re not

installed properly. Respondent's employee could not sink the

anchors completely into the ground because the ground was too

hard. However, the regulations do not appear to address the

issue of ground conditions preventing the anchors from being

driven completely in the ground or whether alternative types of

anchors are available to correct this condition. Importantly,

the Cay mobile home was inspected by the local building official

after Respondent fixed some of the deficiencies cited by

Petitioner. None of the anchors were adjusted during the repair

work. The Cay home was issued a certificate of occupancy. The

certificate of occupancy indicates that the Cay home met the

local code requirements including mobile home installation

requirements and was safe for occupancy. Therefore, Respondent

is guilty of committing a technical violation by not installing

the anchors according to the component manufacturer's

instructions. Proper installation is important and therefore the

violation is not de minimus . However, the evidence was not clear

about how serious the violation is, given the fact it may have

been impossible to comply with the component manufacturer's

instructions and the fact that the installation was considered

safe by the local building inspector.

10. When the soil is not backfilled and tamped properly,

rain will wash into the auger hole and cause settling and a hole

around the anchor. However, such holes can also develop when the

soil is properly backfilled and tamped in the hole around the

anchor. Therefore, the Department did not establish by clear and

convincing evidence that the holes around the anchor were not

filled and tamped properly.

11. The manufacturer's installation instructions for the

Cay mobile home provide that all slack be removed from the

strapping system.

12. When Mr. Cowfer inspected the side wall strapping on

the Cay mobile home, he found that all the slack had not been

pulled out of any of the straps, and that they were all very

loose. Tight straps prevent the home from moving excessively

under storm conditions. Clearly the loose straps were a

significant violation.

13. To fasten the halves of the home together, the

manufacturer's installation instructions provide that lag screws

24 inches on center must be driven through the floor joists at a

45-degree angle.

14. However, Respondent used another method for joining

center line screws. The evidence did not show whether

Respondent's method was approved by the manufacturer.

15. Additionally, when M r. Cowfer inspected the Cay mobile

home, he found that about half of the required lag screws were

not installed.

16. Missing lag screws constitute's a violation.

17. The manufacturer's installation instructions require

that the centerline and any holes made by the lag screws be

sealed with foam tape.

18. Failure to properly seal the home can cause air and

moisture infiltration and rodent infiltration.

19. When Mr. Cowfer inspected the Cay mobile home, he found

that the center line and lag screw holes had not been sealed.

Failure to properly seal the mobile home constitutes a violation.

20. When Mr. Cowfer inspected the Cay mobile home, there

were no blocks under the sheer walls. Additionally, there were

no blocks under the center line columns or they were improperly

installed or out of place.

21. If the mobile home is not properly blocked, it could

bow, settle and go out of level, or slide to the ground.

22. The manufacturer's installation instructions

(Petitioner's Exhibit 2, D-3) for the Cay mobile home contain the

following instructions for blocking the mobile home:

LOCATE THE BLOCKING PLAN FOR YOUR HOME IN THE

COMPLIANCE PACKAGE LOCATED IN YOUR HOME.

THIS PLAN WILL SHOW WHERE I-BEAM BLOCKING AND

ANCHORING IS REQUIRED, AS WELL AS ANY CENTER

LINE BLOCKING AND ANCHORING REQUIREMENTS.

IF THIS PLAN CANNOT BE FOUND, PLEASE CALL US

AT HOMES OF MERIT.

23. The second page of Petitioner's Exhibit 1 is the floor

plan for the Cay mobile home. Respondent claims that this floor

plan is not a floor plan for the Cay home but merely a generic

floor plan. However, Mr. Cower testified that the floor plan

came out of the instruction manual "provided with this particular

home." Moreover, the floor plan in question is not bound into

the manual, but is a separate sheet. Finally while the manual is

dated "1/97," the floor plan is dated "7/9/98," less than one

month before the installation date of the mobile home. However,

Homes of Merit Homes such as the Cay mobile home have tags on the

home to show the installer where blocks should be placed. No

testimony from the manufacturer was offered to clarify or

authenticate the Cay home's blocking requirements. Therefore,

the evidence is unclear as to whether the floor plan marked as

Petitioner's Exhibit 1 is in fact the floor plan for blocking the

Cay mobile home. Therefore, no clear and convincing evidence was

presented by the Department on the blocking of the Cay homes.

24. This action is the first discipline imposed on

Respondent. The evidence showed that Respondent or Respondent's

employees had been instructed in the past on the proper

installation of mobile home anchors, straps, and blocking of

mobile homes. However, none of these past incidents were shown

to be similar enough to the current case facts to warrant

aggravation of any penalty.

25. As indicated earlier, Respondent sent two employees to

correct the alleged deficiencies on the Cay mobile home. They

did not change any of the anchors on the Cay home. Subsequently,

the Cay mobile home was inspected by the local building official

and issued a certificate of occupancy.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

27. In license discipline cases, the agency has the burden

to establish by clear and convincing evidence that Respondent

violated the statutes or rules which govern the license at issue.

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

28. Section 320.8249(10), Florida Statutes, authorizes the

Department to take action against a mobile home installer's

license as follows:

Any licensed person or license applicant who

violates any provision of subsection (9) may

have any of the following disciplinary

penalties imposed by the department.

(a) License revocation;

(b) License suspension;

(c) A fine not to exceed $1,000 per

violation;

(d) A requirement to take and pass, or

retake and pass, the department-approved

examination;

(e) Probation;

(f) Probation subject to such restriction of

practice as the department chooses to impose;

(g) A notice of noncompliance; or

(h) Refusal of licensure application.

29. The specific violation of Section 320.8249(9), Florida

Statutes, which with the Department charged Respondent with in

the administrative complaint was paragraph (g), which reads:

(9) No licensed person nor licensed

application shall;

* * *

(g) Commit violations of the installation

standards for mobile homes or manufactured

homes contained in rules 15C-1.0102 to 15C-

1.0104, Florida Administrative Code.

30. The standard for installation of anchors is set by Rule

15C-1.0102(3), Florida Administrative Code, which reads in

relevant part:

Installation of such anchors and components

shall be in accordance with the

manufacturer's instructions.

31. In this case, the Department has proven by clear and

convincing evidence that the Respondent violated Rule 15C-

1.0102(3), Florida Administrative Code, by installing one-third

of the anchors on the Cay home in a manner inconsistent with the

anchor manufacturer's instructions.

32. Subsection (1) of Rule 15C-1.0102, Florida

Administrative Code, provides in relevant part:

Installation standards for the set-up of new

or used manufactured homes and part trailers

shall be in compliance with the

manufacturer's installation instructions

unless otherwise specified in this rule.

33. The Petitioner has shown by clear and convincing

evidence that Respondent failed to set up the Cay home in

accordance with the manufacturer's instructions with regard to

installation of the lag screws in the center line, sealing the

center line and lag screw holes, and installing the strapping.

The Department did not show by clear and convincing evidence that

the blocking of the Cay home was not done in accordance with the

manufacturer's installation instructions.

34. Section 320.8249(10), Florida Statutes, authorizes the

Department to take a wide range of actions against licensees who

violate subsection (9) of that section. The evidence did not

demonstrate that Respondent's failure to comply with the

manufacturer's or component manufacturer's installation

instructions or use of alternative methods of installation were

life-threatening. However, the violations were serious.

Moreover, the Department did not show that the Respondent has

committed similar violations on other occasions in the past and

has been educated about them. Given these factors, the penalty

for Respondent's violations should not be aggravated but should

be sufficient to equal the seriousness of the violations since

they do involve improper installation of mobile homes. The

proper penalty would therefore be probation for one year with

monitoring by another licensed mobile home installer at

Respondent's expense who should inspect Respondent's

installations for compliance and a fine of $500.

35. Respondent argues that the Department is barred from

revoking Respondent's license by the doctrine of election of

remedies, based on the Department's demand that the Respondent

repair the deficiencies in the Cay home. However, in order for

the doctrine to apply, the allegations of fact necessary to

support one remedy must be substantially inconsistent with those

necessary to support the other. American Process Company v.

Florida White Pressed Brick Co. , 56 Fla. 116, 122, 47 So. 942,

944 (1908). In this case, the factual basis for the demand that

Respondent put right the Cay home is identical to the factual

basis for this administrative action, namely, that Respondent set

the home up improperly as to certain items. Moreover, the

purpose of the doctrine is to prevent a double recovery for the

same wrong. Barbe v. Villeneuve , 505 So. 2d 1331, 1332 (Fla.

1987). In this case there is no such "double recovery" requiring

that Respondent do what he should have done in the first place,

i.e., set the home up properly. The concern is with the

protection, safety and investment of the owners of the Cay home.

The Department has a right to demand this regardless of whether

it chooses to impose sanctions under Section 320.8249, Florida

Statutes; license discipline is concerned with protecting the

general public from future violations by Respondent. Thus, these

goals concern different aspects of the Department's duties under

the mobile home licensing statute and will not result in a

"double recovery" by the Department.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Department of High way Safety and Motor Vehicles

place Respondent Jamie Hewett's mobile home installer's license

on probation for one year with supervision by another licensed

mobile home installer in good standing and impose a fine of $500.

DONE AND ENTERED this 6th day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May , 1999.

COPIES FURNISHED:

Michael J. Alderman, Esquire

Gabrielle L. A. Taylor, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Suite A-432

Tallahassee, Florida 32399-0504

Lawrence F. Kranert, Jr., Esquire

Post Office Box 186

Chattachoochee, Florida 32324

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0500

Fred O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.