08-002108PL Department Of Business And Professional Regulation, Building Code Administrators And Inspectors vs. Robert Kegan Status: Closed Recommended Order on Tuesday, January 13, 2009.

Summary: Petitioner alleged violations of statute addressing the discipline of building code officials. Held: Building official committed acts prohibited by statute, but the violations were not actionable because they occurred outside of Respondent`s jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS, )

)

Petitioner, )

)

vs. ) Case No. 08-2108PL

)

ROBERT KEGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on September 23, 2008, in Tavares,

Florida.

APPEARANCES

For Petitioner: Elizabeth Duffy, Esquire

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Harry T. Hackney, Esquire

Harry Thomas Hackney, P.A.

3900 Lake Center Drive, Suite A1

Mount Dora, Florida 32757

STATEMENT OF THE ISSUE

The issue is whether Respondent Robert Kegan (Mr. Kegan)

committed violations of Chapters 455 and 468, Florida Statutes,

as alleged in an Administrative Complaint filed by Petitioner

Department of Business and Professional Regulation (Department).

PRELIMINARY STATEMENT

Mr. Kegan is certified as a Building Code Administrator by

the Florida Building Code Administrators and Inspectors Board

(Board), pursuant to Section 468.607, Florida Statutes.

The Department filed an Administrative Complaint against

Mr. Kegan alleging, in Count I, that he violated Subsection

468.621(1)(g), Florida Statutes, by failing to properly enforce

applicable building codes by committing willful misconduct; in

Count II, that he violated Subsection 468.621(1)(a), Florida

Statutes, through Subsection 455.227(1)(j), Florida Statutes, by

employing an unlicensed person or entity to practice a

profession contrary to Chapters 455 or 468, or Board rules; and,

in Count III, that he violated Subsection 468.621(1)(a), Florida

Statutes, through Subsection 455.227(1)(k), Florida Statutes, by

failing to perform any statutory or legal obligation placed upon

a licensee.

The allegations of the Administrative Complaint arose out

of the sale of a home and alleged promises made by Mr. Kegan to

the buyer with regard to repairs and upgrades to the home.

Although the discussion of other alleged discrepancies is

necessary to give substance to this Recommended Order, the

Administrative Complaint addresses only a hot water heater, a

central heating and air conditioning system (HVAC), and wiring

for a washer and dryer. There was, in the event, no evidence

offered addressing a hot water heater.

The matter was forwarded to the Division of Administrative

Hearings for hearing and was filed on April 28, 2008. The

hearing was set for June 24, 2008. The Department twice moved

for continuances. They were both granted and eventually the

case was set for hearing on September 23, 2008, in Tavares,

Florida.

Four joint exhibits were admitted. The Department called

three witnesses and offered ten exhibits that were admitted.

Mr. Kegan called two witnesses and offered five exhibits that

were admitted.

A transcript was filed November 7, 2008. On November 14,

2008, a Joint Motion for Continuance was filed. This motion

requested an enlargement of time for the filing of proposed

recommended orders. An Order Granting Extension of Time issued

setting December 17, 2008, as the deadline for filing proposed

recommended orders. Both proposed recommended orders were

thereafter timely filed.

FINDINGS OF FACT

1. Mr. Kegan has a Certificate of Licensure from the

Florida Building Code Administrators and Inspectors Board. He

was first licensed in 1994, and, unless he renewed it, the

license expired on November 30, 2008. At all times pertinent,

he was the Building Code Administrator in Mt. Dora, Florida.

Mr. Kegan has never been employed by the City of Leesburg in any

capacity.

2. The Department is the state agency charged with

regulating the practice of building code administration and

inspections pursuant to Section 20.165 and Chapters 455 and 468,

Florida Statutes.

3. Linda Renn purchased a home located at 2407 Winona

Avenue, Leesburg, Florida, from Mr. Kegan and his wife pursuant

to a contract entered into during March 2001. Prior to entering

into the contract for sale, Ms. Renn walked through the house

with Mr. Kegan. Ms. Renn was aware that it was an older home

and testified, "And I felt very comfortable after leaving the

home and doing the walk through that even though I was buying an

older home with older home obsolescent issues types, but that

the renovations were enough that I felt comfortable."

4. Ms. Renn typed up an addendum to the contract prior to

execution that stated Mr. Kegan would level a part of the house

that required leveling, install an HVAC, install a 220-volt

outlet for the clothes dryer, and would accomplish certain other

improvements prior to closing on the home. The addendum became

part of the contract for sale.

5. Mr. Kegan provided Ms. Renn with his business card

indicating that he was the Building Code Administrator in

Mt. Dora. Ms. Renn observed Mr. Kegan in a shirt with the

Mt. Dora logo upon it, indicating that he was a building

official of Mr. Dora, and she visited him in his office in

Mt. Dora. There is no question Ms. Renn was aware that he was a

building official in Mt. Dora. Ms. Renn claimed that because he

was a building official she completely relied on the

representations he made to her. However, this assertion lacks

credibility because she employed an independent home inspector

prior to closing.

6. During the walk-through, the HVAC was resting upon the

floor of the home's garage. However, at a time between March 17

and April 29, 2001, Mr. Kegan had the HVAC installed, as he

agreed. Subsequently, Ms. Renn discovered this work was

accomplished by an unlicensed individual.

7. An inspection of the premises was conducted by Guy

Medlock of Benchmark Building Inspections, Inc., on March 29,

2001. A report was issued on March 30, 2001. The report noted

that the dwelling was 53 years old and had problems that one

would expect from a home that old. Mr. Medlock also noted that

the house had a lot of charm.

8. Mr. Medlock's inspection noted that the dwelling

required roof repairs and wood rot repairs. It was noted that

it was necessary to ameliorate water leaks and correct

electrical deficiencies, among other items. There were seven

items noted with estimated costs of repair ranging from $50.00

to $150.00. At the time of the inspection, the 220-volt

receptacle had not been installed for the washer and dryer.

Mr. Medlock further noted that there was no plumbing available

for the washer.

9. Because of Mr. Medlock's report, Ms. Renn was well

aware of the defects he noted, and she knew this prior to

closing. The report stated that he, Mr. Medlock, had discussed

the electrical deficiencies with Ms. Renn and suggested that she

have an electrician inspect the dwelling. Ms. Renn testified

that she gave greater weight to Mr. Kegan's knowledge than to

the home inspector that she hired, but there is no basis in the

record for her to arrive at that conclusion.

10. On April 29, 2001, the day before closing, Economy

Electric of Eustis, Florida, installed a 220-volt line, and

Mr. Kegan paid for this work. Economy Electric's principal is

Larry New. He is licensed to accomplish electrical work. He

performed additional electrical work that was paid for by Ms.

Renn, including upgrading wires so that her computer would not

be damaged by bad wiring.

11. On April 30, 2001, Mr. and Mrs. Kegan conveyed the

premises to Ms. Renn by warranty deed. Subsequently, Ms. Renn

concluded that she was not happy with certain facets of the

house, and tried to contact Mr. Kegan to have her perceived

problems corrected.

12. Mr. Kegan was difficult to contact.

13. In a letter dated November 4, 2001, Ms. Renn filed a

16-page complaint with the Department alleging numerous Florida

Building Code violations by Mr. Kegan. She requested that the

Department investigate these alleged violations.

14. Sometime immediately prior to January 10, 2002,

Ms. Renn had Raymond Anderson of Suter Air Conditioning, Inc.,

of Leesburg, inspect the HVAC. He made Ms. Renn aware of

several city code infractions involving the HVAC.

15. Sometime immediately prior to January 11, 2002,

Ms. Renn had someone named James A. Dolan inspect the electrical

service at the premises. In a letter dated January 11, 2002,

Mr. Dolan stated that there were "national electrical code

violations" at the house and that it was his opinion that an

electrical inspector or building code official should look into

the situation. Ms. Renn believed this to be true.

16. Sometime immediately prior to February 5, 2002,

Ms. Renn had the electrical service inspected by Bronson

Electric Service, Inc., of Eustis, Florida. In a letter dated

February 5, 2002, David E. Bronson reported numerous electrical

deficiencies, including an improperly fused air conditioning

unit. Mr. Bronson found that the electrical service to the

house required an upgrade to 150 amps because the current

service was inadequate. He quoted a price of $1,546.00 to

accomplish the required modifications. Ms. Renn believed this

to be accurate.

17. Ms. Renn employed an inspector from Ocala, Florida,

who prepared an inspection report dated May 10, 2002. She

learned there were plumbing, electrical, and mechanical

problems. She also learned that the roof did not meet building

code standards. She noted that for a period of two and one-half

years, the HVAC neither cooled nor heated, although it did make

some noise.

18. Permits were required for the electrical upgrade and

for the air conditioning installation in Ms. Renn's house.

No permits were obtained by Mr. Kegan, or his friends, or

persons he employed to work on Ms. Renn's house, as were

required by the City of Leesburg. By April 18, 2002, all

permits had been obtained.

19. Unlicensed persons worked on both the HVAC

installation and the electrical upgrade. Work of that sort is

lawful only if accomplished by licensed persons. The work

accomplished without the appropriate permit and the work done by

unlicensed persons, was done under the control of Mr. Kegan.

20. Ultimately, Larry New, a licensed electrician, and

Jimmy Harris, a licensed person, fixed all of the problems; got

the work inspected; and ensured that all permits were in place.

21. After her complaint to the Department which was

drafted November 4, 2001, and submitted in early 2002, Ms. Renn

was informed by the Department that she should handle the case

locally. Complaints were made by Ms. Renn to the Leesburg

Building Department and to many other officials of the Leesburg

municipal government. Ultimately, a hearing regarding Mr. Kegan

was held before the Lake County Board of Building Examiners

(County Board) on August 7, 2003, in Tavares, the county seat of

Lake County. Both Leesburg and Mt. Dora are in Lake County.

22. The County Board heard charges against Mr. Kegan's

contractor's license for accomplishing work in the trades of

roofing, electrical, mechanical, and plumbing using unlicensed

workers and failing to obtain permits. It imposed sanctions,

including a $1,000 fine. The County Board required Mr. Kegan to

do the work he promised, but it was clear that he had already

accomplished that work, except for some roofing issues not

further identified. The County Board did not address his

position as the Building Code Administrator in Mt. Dora,

Florida. The action of the County Board was subsequently

reversed by a circuit court.

23. Relations between Ms. Renn and Mr. Kegan eventually

deteriorated to the point where Ms. Renn had a trespass warning

served on Mr. Kegan and sought to have the state attorney

prosecute him for trespass. She was not successful in this.

She also sued Mr. Kegan civilly, but eventually she voluntarily

dismissed the case. None of the actions taken by Ms. Renn,

resulted in Mr. Kegan being disciplined.

24. At some point thereafter, Ms. Renn appeared to be

satisfied with her house and the retaliation she had visited

upon Mr. Kegan. However, while Ms. Renn was "working on

legislation" in Tallahassee, Florida, in 2006, she was asked by

a Department attorney to reopen the case. Other than the

transcript from the County Board hearing of August 7, 2003,

nothing had changed. Every problem she had with the house that

should have been ameliorated, had been ameliorated.

Nevertheless, she did as asked by the Department attorney, and

this case was filed.

25. Ms. Renn sent two letters dated April 3, 2006, and one

letter dated April 21, 2006, to the Chief Professions Attorney

of the Department. The latter missive was a follow-up to the

April 3, 2006, communications. The April 3, 2006,

communications are considered complaints as contemplated by

Subsection 468.619(4), Florida Statutes (2005). There is no

evidence of record that Mr. Kegan was informed of the complaint

or that he was permitted 30 days to respond as contemplated by

Subsection 468.619(4)(b), Florida Statutes (2005). There is no

evidence of record that the Department submitted the complaint

regarding Mr. Kegan to a probable cause panel for review as

contemplated by Subsection 468.619(4)(b), Florida Statutes

(2005), within 180 days. There is no evidence to the contrary,

either.

26. In summary, the Department has proven that Mr. Kegan,

during 2001 and 2002, caused work to be accomplished at

2407 Winona Avenue, Leesburg, Florida, when he owned the house,

as well as after he sold the house to Ms. Renn, and this work

was done without proper permits and, on occasion, by persons who

had no license when a license was required.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2008)

28. The Department has the burden of proving the specific

allegations of fact by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996) and Subsection 120.57(1)(j), Florida Statutes

(2008).

29. Section 468.603, Florida Statutes (2000), provides in

pertinent part as follows:

468.603 Definitions.--As used in this part:

(1) "Building code administrator" or

"building official" means any of those

employees of municipal or county governments

with building construction regulation

responsibilities who are charged with the

responsibility for direct regulatory

administration or supervision of plan

review, enforcement, or inspection of

building construction, erection, repair,

addition, remodeling, demolition, or

alteration projects that require permitting

indicating compliance with building,

plumbing, mechanical, electrical, gas, fire

prevention, energy, accessibility, and other

construction codes as required by state law

or municipal or county ordinance. This term

is synonymous with "building official" as

used in the administrative chapter of the

Standard Building Code and the South Florida

Building Code. One person employed by each

municipal or county government as a building

code administrator or building official and

who is so certified under this part may be

authorized to perform any plan review or

inspection for which certification is

required by this part.

* * *

30. Section 468.604, Florida Statutes (2000), provides in

pertinent part as follows:

468.604 Responsibilities of building code

administrators, plans examiners, and

inspectors.--

(1) It is the responsibility of the

building code administrator or building

official to administrate, supervise, direct,

enforce, or perform the permitting and

inspection of construction, alteration,

repair, remodeling, or demolition of

structures and the installation of building

systems within the boundaries of their

governmental jurisdiction , when permitting

is required, to ensure compliance with the

Florida Building Code and any applicable

local technical amendment to the Florida

Building Code. The building code

administrator or building official shall

faithfully perform these responsibilities

without interference from any person. These

responsibilities include:

(emphasis added)

* * *

31. Section 468.619, Florida Statutes (2005), provides in

pertinent part as follows:

468.619 Building code enforcement

officials' bill of rights.--

* * *

(4) The investigation of a complaint

against an enforcement official is subject

to the time restrictions set forth in this

subsection, and failure to comply with any

time restriction set forth in this

subsection shall result in dismissal of the

complaint against the enforcement official.

An investigation of a complaint against an

enforcement official that was dismissed for

failure to comply with a time restriction

set forth in this subsection may not be

reopened. However, in any instance of an

additional complaint being initiated,

information or investigation related to the

dismissed complaint may be used.

(a) The department must inform the

enforcement official of any legally

sufficient complaint received, including the

substance of the allegation, within 10 days

after receipt of the complaint by the

department.

(b) The enforcement official shall be given

30 days to respond to any legally sufficient

complaint.

(c) No longer than 180 days from the date

of the receipt of the complaint, the

department shall submit the investigation,

whether complete or not, to the probable

cause panel for review. In the event the

investigation is not complete, the probable

cause panel shall review and instruct the

department to complete the investigation

within a time certain and, in no event,

greater than 90 days or dismiss the

complaint with prejudice.

* * *

32. Section 468.621, Florida Statutes (2000), provides in

pertinent part as follows:

468.621 Disciplinary proceedings.--

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

(a) Violating or failing to comply with any

provision of this part, or a valid rule or

lawful order of the board or department

pursuant thereto.

* * *

(g) Failing to properly enforce applicable

building codes or permit requirements within

this state which the certificateholder knows

are applicable or committing willful

misconduct, gross negligence, gross

misconduct, repeated negligence, or

negligence resulting in a significant danger

to life or property.

* * *

(2) When the board finds any person guilty

of any of the grounds set forth in

subsection (1), it may enter an order

imposing one or more of the following

penalties:

(a) Denial of an application for

certification.

(b) Permanent revocation.

(c) Suspension of a certificate.

(d) Imposition of an administrative fine

not to exceed $5,000 for each separate

offense. Such fine must be rationally

related to the gravity of the violation.

(e) Issuance of a reprimand.

(f) Placement of the certificateholder on

probation for a period of time and subject

to such conditions as the board may impose,

including alteration of performance level.

(g) Satisfactory completion of continuing

education.

(h) Issuance of a citation.

33. Section 455.227, Florida Statutes (2007), provides in

pertinent part as follows:

455.227 Grounds for discipline; penalties;

enforcement.--

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(j) Aiding, assisting, procuring,

employing, or advising any unlicensed person

or entity to practice a profession contrary

to this chapter, the chapter regulating the

profession, or the rules of the department

or the board.

* * *

(k) Failing to perform any statutory or

legal obligation placed upon a licensee.

* * *

34. Mr. Kegan asserts that the Department failed to comply

with Section 468.619, Florida Statutes. That section, the

Building Code Enforcement Officials' Bill of Rights, requires

dismissal of a complaint when the Department fails to accomplish

acts within a particular time. Mr. Kegan, in his Answer and

Affirmative Defenses, argues that the case should be dismissed

because the time limits of Subsections 468.619(4)(a),(b), and

(c), Florida Statutes, were not met by the Department.

35. Because the Building Code Enforcement Officials' Bill

of Rights provides a specific remedy for failure to adhere to

its time provisions, a failure to adhere to statutory time

limits will result in dismissal of the complaint. See Carter v.

Dep't of Prof'l Regulation , 633 So. 2d 3, at 6 (Fla. 1994) where

it was said, "Consistent with our reasoning in Hyman , we believe

that if the Legislature had intended the dismissal of

administrative complaints in actions in which the Department or

Board acted outside the time limits of section 455.225, the

Legislature would have expressly included a sanction of

dismissal within the statute ." See also Chalfonte Condo. Apt.

Ass'n. v. QBE Ins. Corp. , 526 F. Supp. 2d 1251 (2007).

36. Clearly in this case, the Florida Legislature provided

a sanction for the Department's failure to act timely--dismissal

of the complaint. It is, however, the burden of the Respondent

to not only allege a lack of timeliness pursuant to Section

468.619, Florida Statutes, but to prove it. Carter at 7. There

is no proof available in the record to establish a time line

sufficient to conclude that dismissal should be had.

37. With regard to Count I, it was alleged that Mr. Kegan

violated Subsection 468.621(1)(g), Florida Statutes, by failing

to enforce applicable building codes. The proof demonstrated

that he failed to comply with applicable building codes in

Leesburg, Florida. Leesburg was not in his bailiwick. He had

no duty to enforce building codes in Leesburg. Subsection

468.604(1), Florida Statutes, makes clear that as a Building

Code Administrator, his responsibilities were limited to the

confines of Mt. Dora, Florida.

38. With regard to Count II, it was alleged that Mr. Kegan

violated Subsection 468.621(1)(a), Florida Statutes, through a

violation of Subsection 455.227(1)(j), Florida Statutes, by

employing unlicensed persons to practice a profession contrary

to this chapter (Chapter 455, Florida Statutes); the chapter

regulating the profession (Chapter 468, Florida Statutes); or

the rules of the board. No rules adopted by the Board were

provided.

39. Mr. Kegan employed two unlicensed persons, but there

was no allegation in Count II as to what specific action was

contrary to Chapter 455, Florida Statutes, and none could be

found. He could not have employed unlicensed persons to violate

Chapter 486, Florida Statutes, because that chapter only applies

to Mr. Kegan in his capacity as building code administrator in

Mt. Dora, Florida, and the employment of unlicensed personnel

occurred in Leesburg, Florida. Accordingly, the allegations of

Count II were not proven.

40. With regard to Count III, it was alleged that

Mr. Kegan violated Subsection 468.621(1)(a), Florida Statutes,

through a violation of Subsection 455.227(1)(k), Florida

Statutes, by failing to perform any statutory or legal

obligation placed upon a licensee. Mr. Kegan's obligations

ended at the boundary of the City of Mt. Dora. He had no

obligations connected to his license in Leesburg. Accordingly,

the allegations of Count III were not proven.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Department of Business and

Professional Regulation dismiss the Administrative Complaint in

the case of Robert Kegan.

DONE AND ENTERED this 13th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2009.

COPIES FURNISHED :

Harry T. Hackney, Esquire

Harry Thomas Hackney, P.A.

3900 Lake Center Drive, Suite A1

Mount Dora, Florida 32757

Elizabeth F. Duffy, Esquire

Charles Tunnicliff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Robyn Barineau, Executive Director

Building Code Administrators and Inspectors

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.