01-003651PL Pinellas County Construction Licensing Board vs. August T. Nocella Status: Closed Recommended Order on Friday, December 28, 2001.

Summary: Respondent failed to call for final inspection as required by Standard Building Code; recommend $1,000 fine. Board failed to prove Respondent engaged in misconduct in the practice of contracting; no clear evidence to establish cause of roof collapse.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY CONSTRUCTION )

LICENSING BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3651PL

)

AUGUST T. NOCELLA, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on November 27, 2001, by teleconference between Largo and

Tallahassee, Florida, before Administrative Law Judge,

Carolyn S. Holifield of the Division of Administrative Hearings.

APPEARA NCES

For Petitioner: Rodney S. Fischer, Executive Director

Pinellas County Construction

Licensing Board

11701 Belcher Road, Suite 102

Largo , Florida 33773

F or Respondent: August T. Nocella, pro se

1017 Robinson Drive, North

St. Petersburg, Florida 33710

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, August T.

Nocella, committe d the violations alleged in the Administrative

Complaint and, if so, what discipline is appropriate.

PRELIMINARY STATEMEN T

By Administrative Complaint dated August 14, 2001,

Petitioner, the Pinellas County Construction Licensing Board,

seeks to suspe nd, revoke, or take other disciplinary action

against Respondent, August T. Nocella, as licensee, and against

his license as an aluminum contractor.

Count One of the Administrative Complaint alleges that

Respondent failed to obtain a satisfactory ins pection as

required by Section 105, Standard Building Code, 1997 Edition,

as amended. Count Two of the Administrative Complaint alleges

that Respondent committed misconduct in the practice of

contracting. According to the Administrative Complaint, these

acts constitute offenses enumerated in Chapter 89 - 504,

Subsections 24(2)(d), (j),(m), and (n), Laws of Florida, as

amended.

Respondent disputed the allegations contained in the

Administrative Complaint and requested a formal hearing.

By letter dated Septem ber 11, 2001, the matter was referred

to the Division of Administrative Hearings for assignment of an

Administrative Law Judge to conduct a formal proceeding.

At the hearing, Petitioner presented the testimony of

Rodney S. Fischer, executive director of t he Pinellas County

Construction Licensing Board, and Mary J. Pugh, homeowner.

Petitioner's Exhibits 1 through 5 were admitted into evidence.

Respondent testified on his own behalf and did not offer any

documentary evidence. The hearing was recorded usin g a tape

recorder, but was not transcribed. A copy of the tape was filed

with the Division on December 7, 2001.

FINDINGS OF FACT

1. Petitioner, the Pinellas County Construction Licensing

Board (Board), is the agency within Pinellas County, Florida,

aut horized under Chapter 89 - 504, Laws of Florida, as amended, to

regulate and discipline the licenses of, among others, certified

aluminum contractors.

2. Respondent, August T. Nocella (Respondent), is, and has

been at all times material hereto, a certified aluminum

contractor in Pinellas County, Florida, having been issued

license C - 3197. At times relevant to this proceeding,

Respondent was doing business as Allied Aluminum, located in St.

Petersburg, Florida.

3. In 1997, Ms. Mary J. Pugh had a small scree ned porch

added to her house located at 12855 Gorda Circle West.

Approximately two years later, in July 1999, the porch was

damaged or destroyed by a storm. Thereafter, Ms. Pugh requested

and received a proposal from Allied Aluminum to repair or

rebuild the screened porch.

4. On September 1, 1999, Respondent entered into a

contract with Ms. Pugh to repair or reconstruct the previously

existing screened porch.

5. The contract provided that Respondent would install a

new aluminum roof to replace the damag ed existing screened porch

roof, install gutters and trim, replace 13 feet of valance,

replace the screen, and install a new wall front.

6. The contract noted that a riser wall was required for

"proper roof pitch."

7. The contract price was $2,300.00, wi th $1,000.00 to be

paid as a down payment and the remaining $1,300.00 to be paid

upon completion of the project.

8. Ms. Pugh paid Allied Aluminum in accordance with the

terms of the contract. She made the first payment of $1,000.00

on September 1, 1999, and made the final payment of $1,300.00 on

September 22, 1999, upon Respondent's completing the job.

9. On or about September 16, 1999, Respondent obtained a

permit for the repair or reconstruction of the screened porch at

Ms. Pugh's house.

10. Responden t began the project on or about September 15,

1999, and completed the job on September 22, 1999.

11. Section 105.6 of the Standard Building Code, 1997

Edition, as amended,(Standard Building Code) requires local

building officials, "upon notification from the permit holder or

his agent," to make a final inspection of a building after the

building is completed and ready for occupancy. In order to

comply with the Standard Building Code, it was the

responsibility of the permit holder, in this case, Respondent ,

to call local officials for a final building inspection. Upon

completion of the inspection, a building official would then

notify the permit holder of "any violations which must be

corrected in order to comply with the technical codes."

12. Respondent failed to notify building officials that

the Pugh project was completed and ready for occupancy and,

thus, ready for final inspection by appropriate building

officials. As a result of Respondent's failure to call for a

final inspection, building officials never inspected

Respondent's work on Ms. Pugh's screened porch and made no

determination as to whether the project complied with the

applicable technical codes.

13. In July 2000, during a storm, the roof of Ms. Pugh's

screen porch collapsed.

14. Relying on statements of unnamed contractors, Ms. Pugh

believes that the roof collapsed because it did not have the

proper pitch. Respondent attributes the collapse of the roof to

the gutters being blocked with leaves. Despite these assertions

no evidence was p resented at hearing to establish the

cause of the roof's collapsing.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57, Florida

Statutes.

16. The Pinellas County Construction Licensing Board

(Board) is statutorily empowered to discipline the license of

contractors based upon any of the grounds enumerated in Chapter

89 - 504, Section 24, Laws of Florida.

17. Respondent , a certified aluminum contractor, is

charged with the responsibility of complying with all applicable

building codes and regulations adopted by the Board. Likewise,

Respondent is subject to disciplinary guidelines of Chapter 89 -

504, Section 24, Laws of F lorida.

18. The Board has adopted the Standard Building Code

pursuant to Chapter 89 - 504, Section 28, Laws of Florida.

20. Because Respondent is subject to penal sanctions

including revocation of his license as an aluminum contractor

and imposition of an administrative penalty, the Board has the

burden of proving by clear and convincing evidence the specific

allegations in the Administrative Complaint. Department of

Banking and Finance v. Osborne & Company , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turling ton , 510 So. 2d 292 (Fla. 1987).

21. The Administrative Complaint alleges that Respondent

failed to obtain a satisfactory final inspection as required by

Section 105 of the Standard Building Code, and committed

misconduct in the practice of contracting. The Administrative

Complaint further alleges that this conduct by Respondent

constitutes the following offenses enumerated in Chapter 89 - 504,

Subsections 24 (2)(d), (j), (m), and (n), Laws of Florida:

(d) Willfully or deliberately

disregarding and viola ting the applicable

building codes or laws of the state, this

board, or of any municipality or county of

this state;

* * *

(j) Failing in any material respect to

comply with the provisions of this part.

* * *

(m) Being found guilty of fraud or de ceit

or of gross negligence, incompetency, or

misconduct in the practice of contracting.

(n) Proceeding on any job without

obtaining applicable local building

department permits and inspections.

22. Petitioner established by clear and convincing

evi dence the allegation contained in Count One of the

Administrative Complaint. The clear and convincing evidence is

that upon his completing the screened porch at the Pugh

residence, Respondent failed to call for an inspection of the

structure as required b y the Standard Building Code.

Respondent's failure to do so constitutes a willful disregard

and violation of the Standard Building Code and, thus, offenses

described in Chapter 89 - 504, Subsections 24(2)(d), (j), and (n),

Laws of Florida.

23. With regard to Count Two, the Board failed to prove by

clear and convincing evidence that Respondent engaged in

misconduct in the practice of contracting. This allegation

appears to be premised on Ms. Pugh's assertion that the

collapsed screened porch roof, approxim ately ten months after it

was installed, was the result of Respondent's failing to install

or construct the roof at the proper pitch. However, there was

no evidence presented at the final hearing to support this

assertion. Ms. Pugh's belief was based sol ely on comments made

to her by unnamed contractors. Moreover, there was no testimony

from any qualified contractor or building official to support

this assertion. Accordingly, the Board failed to prove by clear

and convincing evidence that Respondent eng aged in misconduct in

the practice of contracting as alleged in Count Two.

24. Petitioner is authorized to suspend certificate

holders from all operations as contractors, suspend or revoke

certificates, impose administrative fines not to exceed

$1,000.00, require restitution, and impose reasonable

investigative and legal costs. Chapter 89 - 504, Section 24, Laws

of Florida, and Chapter 93 - 387, Section 24, Laws of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, i t is

RECOMMENDED that the Pinellas County Construction Licensing

Board enter a final order: (1) finding that Respondent failed

to obtain a satisfactory inspection as alleged in Count One, and

is guilty of the offenses described in Chapter 89 - 504,

Subsect ions 24, (2)(d), (j), and (n), Laws of Florida; (2)

imposing an administrative fine of $1,000.00 for the foregoing

offenses; and (3) dismissing Count Two of the Administrative

Complaint.

DONE AND ENTERED this 28th day of December, 2001, in

Tallahassee, Leo n County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 28th day of December, 2001.

COPIES FURNISHED :

Don Crowell, Esquire

Pinellas County Construction Licensing Board

310 Court Street

Clearwater, Florida 33756

Rodney S. Fischer, Executive Director

Pinellas County Construction Licensing Board

11701 Belcher Road

Suite 102

Largo, Florida 33773 - 5116

August T. Nocella

1017 Robinson Drive, North

St. Petersburg, Florida 33710

NOTICE OF RIGHT TO SUB MIT 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 must be filed with the agency that

will issue the Final Order in this case.