04-001641 Samuel Duke Bennett vs. Board Of Building Code Administrators And Inspectors Status: Closed Recommended Order on Monday, August 9, 2004.

Summary: The evidence was sufficient to show Petitioner`s entitlement to a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL DUKE BENNETT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1641

)

BOARD OF BUILDING CODE )

ADMINISTRATORS AND INSPECTORS, )

)

Respondent. )

)

RECOMM ENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on June 29, 2004, by means of video teleconference between

sites at West Palm Beach and Tallahassee, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

McConnaughhay, Duffy, Coonrod, Pope &

Weaver, P.A.

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

For Respondent: Jeffrey D. Jones, Es quire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application

for licensure as a building inspector should be granted or

denied.

PRELIMINARY STATEMENT

Following receipt of notice that Respondent intended to

deny his application for licensure, Petitioner timely filed a

Petition challenging the proposed denial. The Petition raised

disputed issues of material fact and also challenged the legal

sufficiency of the Notice of Intent to Deny on the grounds that

the notice was deficient as written, both in terms of

particularity and in terms of failing to comply with the

requirements of Section 120.60(1), Florida Statutes.

At the final hearing in this case Petitioner testified on

his own behalf and also presented the testimony of five other

witnesses. Petitioner also offered four exhibits, all of which

were received in evidence. Respondent did not call any

witnesses, but did offe r two exhibits, both of which were

received into evidence. 1

At the conclusion of the evidentiary hearing the parties

were allowed ten days from the filing of the transcript within

which to file their proposed recommended orders. The transcript

was filed w ith the Division of Administrative Hearings on

July 23, 2004. Thereafter Petitioner filed a proposed

recommended order containing proposed findings of fact and

conclusions of law. 2 As of the date of this Recommended Order,

Respondent has not filed a prop osed recommended order. 3

FINDINGS OF FACT

1. Petitioner submitted an application for licensure as a

building inspector on August 6, 2003.

2. The application was reviewed by Respondent and

subsequently denied on the basis that it contained “materials

w hich questions [sic] the good moral character of Petitioner,”

and that Petitioner’s application "failed to provide complete

supporting documentation relating to all previous disciplinary

actions which could also impact a determination concerning

[Petitione r's] moral character."

3. No notification that Petitioner’s application lacked

supporting documentation was sent by the Department to

Petitioner.

4. Petitioner’s application lists prior convictions for

traffic - related offenses, such as careless driving , driving with

a suspended license, and DUI. Petitioner has never been

convicted of a crime involving dishonesty, false statement,

fraud, or theft. Petitioner has never been convicted of a

felony. Petitioner was under the influence of alcohol at the

tim e that all of the traffic - related offenses were committed.

5. Petitioner is now a recovering alcoholic who has been

actively involved with Alcoholics Anonymous (“AA”) for over

three years on a voluntary basis. His sobriety date is May 25,

2001. The so briety date is important because it marks the date

when an alcoholic makes and implements a commitment to a new way

of life.

6. AA operates on the principle generally accepted by the

medical community that alcoholism is a disease, and not a moral

issue. AA operates on the principle that although there is no

cure for alcoholism, there is a daily reprieve. AA is a 12 - step

program providing guidelines to living. AA works only if the

alcoholic follows the twelve steps to the best of his or her

ability. A person who is not willing to change his or her life

cannot be helped by AA. AA is an ongoing lifetime process of

personal improvement, the pinnacle of which is service to

others.

7. Petitioner is a totally different person now as

compared to the way he used to be. Petitioner admits that his

alcohol - related impairment was the primary cause of the episodes

of misconduct prior to his commitments to a life of sobriety and

to the principles of the AA program. Petitioner’s last criminal

conviction was in 199 8.

8. Since becoming sober, Petitioner purchased his own home

and recently married. Petitioner is an officer in his AA home

group, with responsibilities that include overseeing the group’s

activities, setting up meetings, chairing meetings, providing

co ffee, and paying rent for the meeting site with monies that

the group has entrusted to him. Petitioner regularly chairs his

home group meetings, and has spoken on alcohol - related issues to

several other community groups, including the Salvation Army and

t he Comprehensive Alcohol Rehabilitation Program. Petitioner

has become a person of integrity who cares about others,

reaching out to new AA attendees as a mentor.

9. Petitioner has been regularly employed since he stopped

drinking. Joe Iagrossi has kno wn Petitioner for a little more

than two years. Petitioner is employed by Iagrossi’s company,

Construction Inspections of the Palm Beaches. Iagrossi

considers Petitioner to be a reliable, honest, and truthful

employee, trusts Petitioner’s judgment, and h as confidence in

his work. Iagrossi believes that Petitioner has the ability to

distinguish right from wrong, as well as the character to

observe the difference. There have never been any conduct

issues with Petitioner, and he possesses a good reputation

within the company. Iagrossi is of the opinion that Petitioner

can practice building inspection with reasonable skill and

safety to the general public.

10. Richard Sussan is Petitioner’s AA sponsor and has

known Petitioner for two years. Sussan consid ers Petitioner a

person of integrity, who cares about others, is reliable and

honest, and is very committed to AA.

11. Petitioner is a member of, and is actively involved

with the activities of, Christ Fellowship Church. Petitioner is

a regular volunte er in the church’s Special Needs Ministry. The

Special Needs Ministry is a program which allows families of

children with special needs to attend regular church services by

providing volunteers to watch the special needs children during

that time. For th e past two years Petitioner has volunteered

every other Sunday to watch a special needs child so that the

child's parents can attend church services. Petitioner is

highly regarded by church officials and church members who know

him, and in that group he e njoys a reputation of being very

reliable, honest, and a person of integrity and good morals.

12. Petitioner worked for the architectural firm of Ames

Bennett & Associates, P.A. for fifteen years. Petitioner’s

duties included field inspections for resid ential and commercial

projects, for code and contract compliance, from geotechnical

and foundation through trim work, ADA, and fire safety

oversight. Petitioner also managed the office, paid bills,

interviewed job applicants, and showed new employees insp ection

techniques.

13. Petitioner passed the Southern Building Code Congress

International certification examination for Building Inspector

on November 20, 2001. Petitioner passed the International Code

Council certification examination for Building Ins pector on

September 18, 2003.

14. Chapter 11 of the Florida Building Code governs

enforcement of the Florida Americans with Disabilities and

Accessibility Implementation Act. The Act defines “disability”

as “physical or mental impairment that substantia lly limits one

or more major life activities, and includes alcoholism."

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida S tatutes.

16. Section 468.609, Florida Statutes, governs standards

for certification as a building inspector, and states that a

person shall be entitled to take the examination for

certification as a building inspector if the person:

(a) Is at least 18 ye ars of age.

(b) Is of good moral character.

(c) Meets eligibility requirements according

to one of the following criteria:

1. Demonstrates 5 years combined experience

in the field of construction or a related

field, building code inspection, or plans

rev iew corresponding to the certification

category sought. . . .

17. Petitioner is more than 18 years of age and has the

requisite experience.

18. Based on the language of the Notice of Intent to Deny,

Petitioner was denied licensure by Respondent on the basis that

he lacks good moral character, and that his application did not

provide complete supporting documentation relating to all

previous disciplinary actions which may affect a moral character

determination.

19. Pursuant to Section 120.60(3), Flori da Statutes, the

Notice of Intent to Deny is deficient as written, both in terms

of particularity and in terms of requirements under Section

120.60(1), Florida Statutes. Specifically, an agency must

notify an applicant of any errors or omissions in the

ap plication within thirty (30) days of receipt, and shall not

deny a license for failure to correct an error or omission or to

supply additional information unless the agency timely notified

the applicant within the statutory 30 - day period. The agency

faile d to state what supporting documentation was missing with

respect to the “previous disciplinary actions.” Any errors or

omissions in the application should have been addressed by

Respondent’s staff prior to forwarding the application for final

review, and Petitioner should have been notified of any errors

or omissions within 30 days of the Department’s receipt of the

application. Since no such notification was sent by the agency

to Petitioner, and Respondent elected to review the

application, Petitioner ’s application was obviously deemed

complete.

20. In licensing cases, the burden is upon the applicant

to demonstrate entitlement to the requested license by a

preponderance of the evidence. Department of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); State

ex rel. Glaser v. Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963);

Florida Department of Transportation v. J.W.C. Co., Inc . 396 So.

2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

21. Petitioner has proved by a preponderance of the

evidence that he is entitled to be licensed as a building

inspector.

22. The uncontroverted evidence in this case shows that

Petitioner is a recovering alcoholic who has been actively

involved in AA since May of 2001. His last conviction was six

years ago. Since his sobriety date, Petitioner has held a

steady job, is well - liked by his colleagues and employer, and is

in a stable marriage. He is actively involved with hi s church,

volunteering his time with the church’s Special Needs Ministry.

He is respected by friends, family, and co - workers. He has

demonstrated honesty, integrity, and commitment to competent

service in the profession of building inspection.

23. “G ood moral character” is a broad standard subject to

interpretation. The Village Zoo, Inc. d/b/a Village Zoo v.

Division of Alcoholic Beverages and Tobacco , Case No. 83 - 389

(1983 Fla. Div. of Adm. Hear. LEXIS 6127). It is not defined by

any applicable sta tute or rule governing building code

inspectors. The courts have, however, provided some guidance in

defining and applying this standard. In Zemour, Inc. v. State

of Florida , Division of Beverage , 347 So. 2d 1102 (Fla. 1st DCA

1977), the court stated:

M oral character, as used in this statute,

means not only the ability to distinguish

between right and wrong, but the character

to observe the difference; the observance of

the rules of right conduct, and conduct

which indicates and establishes the

qualities generally acceptable to the

populace for positions of trust and

confidence. An isolated unlawful act or

acts of indiscretion wherever committed do

not necessarily establish bad moral

character.

24. In Florida Board of Bar Examiners v. G.W.L. , 364 So.

2d 454, 458, (Fla. 1987), the court discussed the meaning of

good moral character as follows:

In our view, a finding of a lack of "good

moral character" should not be restricted to

those acts that reflect moral turpitude. A

more appropriate definition of t he phrase

requires an inclusion of acts which would

cause a reasonable man to have substantial

doubts about an individual's honesty,

fairness, and respect for the rights of

others and for the laws of the state and

nation.

25. What constitutes “good moral character” is a matter to

be developed by facts. White v. Beary , 237 So. 2d 263 (Fla. 1st

DCA 1970). Florida decisional law generally holds the view that

alcoholism, in and of itself, is not a moral character problem.

State v. Wadsworth , 210 So. 2d 4 (F la. 1968)(“Alcoholism is not

said to be or thought of as a character trait.”); Criminal

Justice Standards and Training Commission v. Vause , Case No. 89 -

2768 (1989 Fla. Div. of Adm. Hear. LEXIS 6986) (“Alcoholism is a

disease. . . and not an issue of ‘good moral character.’”); Todd

v. Todd , 56 So. 441 (Fla. 1951)(“Intoxication does not stain the

character like stealing, robbery and other acts involving moral

turpitude”); Plummer v. Florida Board of Medicine , Case No. 92 -

2060 (1993 Fla. Div. of Adm. Hear. LEX IS 5047) (“The fact that

eight years ago Petitioner was deeply in alcoholic denial does

not constitute persuasive evidence of a current bad moral

character or of bad moral character during the period his

alcoholism has been in remission.”). It has also be en held that

driving while intoxicated is not necessarily a failure of good

character. Bray v. Florida Real Estate Commission , Case No. 83 -

3005 (1984 Fla. Div. of Adm. Hear. LEXIS 4862) (DUI conviction

does not bear on the issue of Petitioner’s honesty,

t ruthfulness, trustworthiness, or character).

26. In sum: the evidence in this case clearly establishes

that at this time Petitioner is a person of good moral

character. 4 He meets all other criteria for approval of his

application. Accordingly, his app lication should be granted.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that a

Final Order be entered granting Petitioner's application for

licensure as a building inspector.

DONE AND ENTERED this 9th day of August, 2004, in

Tallahasse e, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of August, 2004.

ENDNOTES

1/ Respondent was granted leave to late - file one of its

exhibits. That exhibit was filed with the Divisio n of

Administrative Hearings on July 23, 2004, at the same time the

transcript was filed.

2/ The proposed findings and conclusions set forth in

Petitioner's proposed recommended order are in large part

consistent with the findings and conclusions reached by the

Administrative Law Judge. Accordingly, portions of Petitioner's

proposals have been incorporated into the text of this

Recommended Order. It should also be noted that a number of

facts proposed by Petitioner have been omitted from the findings

of fact in this Recommended Order not because of a lack of

competent substantial evidence, but because they appeared to the

ALJ to be subordinate and unnecessary details.

3/ Respondent advised by telephone that it did not intend to

file a proposed recommen ded order.

4/ The nature and frequency of Petitioner's episodes of

misconduct prior to his commitments to sobriety and to the

principles of AA certainly raise questions about the state of

Petitioner's moral character at that time. But the issue in

this case is not whether the Petitioner was once of questionable

moral character at some time in the past. Rather, the issue

here is whether Petitioner is presently a person of good moral

character. The evidence establishes that he is presently such a

person.

COPIES FURNISHED :

Anthony B. Spivey, Executive Director

Building Code Administrators and

Inspectors

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Miriam S. Wilkinson, Esquire

McConnaughhay, Duffy, Coonrod, Pope &

Weaver, P.A.

101 North Monroe Street, Suite 900

Post Office Drawer 229

Tallahassee, Florida 32302 - 0229

Jeffrey D. Jones, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.