10-002883PL Department Of Business And Professional Regulation, Board Of Building Code Administrators And Inspectors vs. Morris Tesh Status: Closed Recommended Order on Wednesday, December 8, 2010.

Summary: Petitioner failed to demonstrate that Respondent failed to enforce the building code where no specific violation of the building code was proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF BUILDING CODE )

ADMINISTRATORS AND INSPECTORS, )

)

Pet itioner, )

)

vs. ) Case No. 10 - 2883PL

)

MORRIS TESH, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 5, 2010 , a duly - noticed hea ring was held in

Bunnell , Florida , before Lisa Shearer Nelson , an Admi nistrative

Law Judge assigned by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: Elizabeth Fletcher Duffy , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florid a 32399 - 2202

For Respondent: Morris Tesh, pro se

Post Office Box 474

Bunnell, Florida 32110

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

Section 468.621(1)(g), Florida Statut es, as alleged in the

Administrative Complaint, and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On November 9, 2009, the Department of Business and

Professional Regulation (Petitioner or DBPR) filed an

Administrative Complaint against R espondent, Morris Tesh,

alleging that he failed to enforce the building code in violation

of Section 468.621, Florida Statutes, based on alleged

deficiencies in his inspections for six structures. On

December 4, 2009, Respondent filed an Election of Right s form

with the Department, disputing the allegations in the

Administrative Complaint and requesting a hearing pursuant to

Section 120.57(1), Florida Statutes. On May 26, 2010, the case

was referred to the Division of Administrative Hearings for

assignmen t of an administrative law judge.

The case w as originally scheduled for hearing July 29, 2010.

However, at the request of Petitioner, the case was continued and

rescheduled for October 5, 2010. At hearing, Petitioner

presented the testimony of Joshua Gi deon and Michael Gustafson,

and Petitioner's Exhibits numbered 1 through 8 were admitted into

evidence. Respondent testified on his own behalf but submitted

no exhibits.

The one - volume Transcript was filed with the Division on

October 20, 2010. Petiti oner requested an extension of time for

the filing of proposed recommended orders, and the deadline for

submission was extended to November 15, 2010. Petitioner filed a

Proposed Recommended Order on November 12, 2010, which has been

carefully considered i n the preparation of this Recommended

Order. To date, Resp ondent has not submitted a post - hearing

submission. All references to Florida Statutes are to the 2009

version, unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner is the state agency char ged with the

licensing and regulation of building code administrators and

inspectors in the State of Florida, pursuant to Section 20.165

and Chapters 455 and 468, Part XII, Florida Statutes.

2. Respondent is a certified standard building inspector in

the State of Florida, having been issued license number BN 3816.

He held this license at all times relevant to this complaint.

3. Respondent provides building inspections as a private

provider wi thin the City of Jacksonville.

4. In the course of his duties as a building inspector,

Respondent has inspected structures at the following locations in

Jacksonville : 1142 Johnson Creek Circle; 8242 Maple Street; 9127

5th Avenue; 7053 Civic Club Drive; 11658 Pleasant Creek Drive;

and 2700 Jane Street.

5. The City o f Jacksonville Quality Assurance Office (QA

Office) in the Building Department conducted audits of the

inspections provided by Respondent at the above - named locations.

6. The QA Office determined that there were deficiencies

concerning the inspections for the six structures , and prepared

an "Audit Report" with respect to each structure. However, Audit

Reports are only prepared where the QA Office perceives a pattern

of violations, presumably for a particular private provider.

Audit Reports are not prepar ed with respect to every audit

performed .

7. The Audit Report for the 11442 Johnson Creek Circle

address listed 22 "deficiencies." Joshua Gideon, a construction

trades inspector for the City of Tallahassee, testified that the

"deficiencies" ranged from b uilding code violations to missed

items that that were required by the engineer. He testified

that, as a whole, the deficiencies could not be considered minor,

and that some individual items would not be considered minor

standing alone. However, no evide nce was presented to identify

which alleged deficiencies represented code violations, which

deficiencies were considered "major," or to identify exactly what

code provisions were at issue. In addition, Mr. Gideon testified

that the majority of items that were listed were items required

by the engineer of record. No evidence was presented to explain

whether items required by the engineer of record would also be

building code violations.

8. The Audit Report for the inspection at 8242 Maple Street

indicates there were seven deficiencies. It does not, however,

indicate what the building code required or how those

requirements were not met. Further, Mr. Gideon did not

physically inspect this property and no inspector that visited

the site actually testified. While Mr. Gideon assisted in

preparing the report, his assistance would be based on what was

reported to him, and both his testimony and the contents of the

report are uncorroborated hearsay.

9. Like the job at 8242 Maple Street, Mr. Gideon did not

visi t the actual property at 9127 Fifth Avenue, but simply

assisted in preparing the report. Although it is alleged that

the permit and plans were not posted on site, so that it would

not be possible to post inspections on the permit card, no one

who visited the site testified at hearing.

10. Mr. Gideon also did not perform the audit of the job

located at 7053 Civic Club. Although the Audit Report indicates

that there were 18 deficiencies, there is no indication which of

these deficiencies represented build ing code violations and which

we re variations from the plans. Further, no one who actually

visited the site testified at hearing.

11. Mr. Gideon did visit the job at 11658 Pleasant Creek

Drive. The Audit report that he prepared indicated that there

were 19 deficiencies. He testified at hearing that deficiencies

were items that were require d by the engineer of record. No

evidence was presented , however, to identify a deficiency that

was a violation of building code standards or, in the event of

such a d eficiency, what provision in the building code was at

issue.

12. The final property at issue is a property located at

2700 Jane Street. This structure, which Mr. Gideon visited, is a

multi - story wood - framed hotel. Several deficiencies were noted

with r espect to this building, including fire assemblies not

constructed according to their tested assemblies, incorrect

insulation installed, incorrect channeling in the ceiling , and

multiple cut or broken floor truss joists. However, as with the

other propert ies, no evidence was presented to indicate which

deficiencies were items required by the engineer of record, and

which deficiencies actually represented violations of the

building code. In addition, it was stated at hearing that there

were multiple framin g inspections of this property because of its

size. However, there is no testimony that provides the sequence

of events related to the alleged deficiencies. In other words,

while there is an attachment to the Audit R eport indicating the

times of differen t inspections, there was no evidence presented

that indicated what was wrong each time Respondent inspected the

property , and what he should have but did not flag as not meeting

building code requirements .

CONCLUSIONS OF LAW

13 . The Division of Administr ative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2010) .

14. This is a disciplinary proceeding against Respondent's

license as a building code ins pector. Because the Department

seeks to take disciplinary action against Respondent's license,

it is required to prove the allegations in the Administrative

Complaint by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

15. As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testi fy must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as t o the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

16. Moreover, in disciplinary proceedings, the statutes and

rules for which a vio lation is alleged must be strictly construed

in favor of Respondent. Elmariah v. Department of Professional

Regulation , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v.

Department of Professional Regulation , 534 So. 782, 784 (Fla. 1st

DCA 1988).

17. The Ad ministrative Complaint in this case alleged the

following:

11. Section 468.621(1)(g), Florida Statutes,

says: "[f]ailing to properly enforce

applicable building codes or permit

requirements within this state which the

certificateholder knows are applicab le or

committing willful misconduct, gross

negligence, gross misconduct, repeated

negligence, or negligence resulting in a

significant danger to life or property"

constitutes grounds for disciplinary action.

12. Based on the foregoing, the Respondent

vio lated Section 468.621.(1)(g), Florida

Statutes, when he failed to enforce the

building code.

18. The Department has failed to prove the allegations in

the Administrative Complaint by clear and convincing evidence.

19. As a preliminary matter, the De partment sought to

introduce the Audit Reports prepared by the QA Office as business

records, and thus an exception to the hearsay rule pursuant to

Section 90.803(6), Florida Statutes. That subsection provides an

exception to the definition of hearsay, re gardless of the

availability of the declarant,

(6)(a) Any memorandum, report, record, or

data compilation, in any form, of acts,

events, conditions, opinion, or diagnosis,

made at or near the time by, or from

information transmitted by, a person with

kno wledge, if kept in the course of a

regularly conducted business activity and if

it was the regular practice of that business

activity to make such a memorandum report,

record, or data compilation, all as shown by

the testimony of the custodian or other

qua lified witness, or as shown by a

certification or declaration that complies

with paragraph ( c) and 90.902(11), unless the

sources of information or other circumstances

show a lack of trustworthiness. The term

"business" as used in this paragraph includes

a business, institution, association,

profession, occupation, and calling of every

kind, whether or not conducted for profit.

20. In this case, Mr. Gideon testified that the Audit

Reports were not prepared in every case, but only in those cases

where th e QA Office determined that there was a pattern of

conduct involved. Under these circumstances, it cannot be s aid

that it was the regular practice of the QA Office to prepare the

Audit Reports. Accordingly, the Audit reports must be considered

to be hear say. Harris v. Game & Fresh Water Fish Commission , 495

So. 2d 806 (Fla. 1st DCA 1986).

21. To the extent that Mr. Gideon testified about audits he

prepared, the information in the audits may supplement or explain

his testimony, but standing alone, can not support a finding of

fact. § 120.57(1)(c), Fla. Stat. As applied to the evidence

presented in this case, the Audit Reports may supplement or

explain Mr. Gideon's testimony regarding the projects at Jane

Street, Johnson Creek Circle and Pleasant Creek Drive. However,

even with both Mr. Gideon's testimony about what he observed and

what is recorded in the Audit Report, there is no clear and

convincing evidence that building code violations existed at

these three locations, and that Mr. Tesh saw those v iolations and

passed the structures despite those violations.

22. With respect to the Maple Street, Fifth Avenue and

Civic Club inspections, Mr. Gideon's testimony is also hearsay,

as he did not visit any of these locations but relied on the

observations of a co - worker and statements by the contractors at

each job location reported to him. Neither the co - worker nor the

contractors testified in this proceeding.

23. Most important, however, is the failure to identify the

specific code violations at issue for these structures. Mr. Tesh

is charged with failing to enforce the building code, in

violation of Section 468.621(1)(g), Florida Statutes. In order

to prove that he failed to enforce the building code, it is

incumbent upon Petitioner to demonstrate w hat building code

provisio ns are at issue and h ow Respondent failed to enforce

those provisions. Purvis v. Department of Professional

Regulation , 461 So. 2d 134 (Fla. 1st DCA 1984). Here, only

general references to the building code as a whole were made, and

with respect to some locations, it is unclear whether the

"deficiencies" dealt with building code violations at all. These

general references are not clear and convincing evidence needed

to support a determination that Respondent failed to enforce th e

building code, as alleged in the Administrative Complaint.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Building Code Administrators

and Inspectors Board enter a Final Order dismi ssing the

Administrative Complaint in its entirety.

DONE AND ENTERED this 8th day of December , 20 1 0, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 8th day of Decem ber, 20 1 0.

COPIES FURNISHED:

Elizabeth F. Duffy , Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Morris Tesh

Post Office Box 721

Bunnell, Florida 32110

Robyn Barineau, Executive Director

Building Code Administrators

and Inspectors Board

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahass ee, Florida 32399 - 2202

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.