98-005629 Department Of Business And Professional Regulation, Building Code Administrators And Inspectors vs. James L. Brown Status: Closed Recommended Order on Monday, October 23, 2000.

Summary: Respondent followed directives from his employer and did not intentionally seek to violate technical requirements of the law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BUILDING CODE ADMINISTRATORS )

AND INSPECTORS, )

)

Petitioner, )

)

vs. ) Case No. 98-5629

)

JAMES L. BROWN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

on August 8, 2000, at Stuart, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dorota Trzeciecka, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Michael A. Rodriguez, Esquire

County Attorney's Office

2401 Southeast Monterey Road

Stuart, Florida 34996

Leif Grazi, Esquire

LAW OFFICES OF GRAZI & GIANINO, P.A.

217 East Ocean Boulevard

Stuart, Florida 34995

STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Business and Professional

Regulation (Department), filed an Administrative Complaint

against the Respondent, James L. Brown, on November 2, 1998. The

complaint alleged that the Respondent violated Section

468.621(1)(f), Florida Statutes. More specifically, the

complaint alleged that the Respondent filed a false record by

initialing inspections reports prior to being licensed to do so.

The Respondent timely filed an Election of Rights disputing the

allegations of fact and requested a formal hearing. The matter

was forwarded to the Division of Administrative Hearings for

formal proceedings on December 23, 1998.

The case was placed in abeyance during a time when the

parties attempted to reach a settlement. After the parties'

stipulated settlement agreement was rejected by the Board, the

matter was rescheduled for final hearing for August 8, 2000.

This case was heard concurrently with Department of Business and

Professional Regulation, Building Code Administrators and

Inspectors Board v. Bobby T. Chambers , DOAH Case No. 99-4892. A

separate Recommended Order has been entered in that matter. The

record of both cases will be forwarded to the Department

together.

At the hearing, the Petitioner presented testimony from

Martin A. Joyce, Jr.; Charles Sabin, and Robert Holsclaw. The

Petitioner's Exhibits 1 through 4 and 7 through 10 were admitted

into evidence. Official recognition was taken of the provisions

of law cited in the record. The Respondent presented testimony

from Bartley D. Stuart and Kevin Hempel.

The Transcript of the proceeding was filed with the Division

of Administrative Hearings on August 30, 2000. The Petitioner

was granted leave to late-file a Proposed Recommended Order. All

proposed orders have been fully considered in the preparation of

this order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility of regulating building code administrators and

inspectors.

2. At all times material to the allegations of this case,

the Respondent was either an applicant for licensure or held a

building inspector license, license number BN 0002765.

3. At all times material to this case, the Respondent was

employed by the Martin County Building Department as a Building

Inspector.

4. Harriet R. Edwards owns a residence located at 2595

Hickory Avenue, Jensen Beach, Florida. This home is located in

Martin County, Florida.

5. At some point in early 1996, it became Ms. Edwards'

desire to construct an addition to her residence. She retained a

contractor to perform the work and returned to Ohio during the

time of the construction.

6. When Ms. Edwards returned to Florida she was

dissatisfied with the quality of the work. Mr. Joyce,

Ms. Edwards' friend, expressed that they had expressed a desire

for, and requested only, a high quality of work for the addition

to Ms. Edwards' home.

7. Upon investigation it was discovered that the permit

card located at the construction site had been initialed by the

Respondent. All of the inspections listed on the permit card

occurred prior to December 17, 1996.

8. The Respondent was issued a provisional license to

perform building inspections on or about December 17, 1996.

9. All of the inspections initialed by the Respondent had

been performed by another inspector employed by the Martin County

Building Department, Bobby T. Chambers. Mr. Chambers was fully

licensed at the times of the inspections and acted as the

Respondent's training supervisor.

10. The Respondent accompanied Mr. Chambers during a

training period during which time Mr. Chambers was to instruct

the Respondent in the procedures and practices of the Martin

County Building Department.

11. At all times material to the allegations of this

complaint, the Martin County Building Department allowed

unlicensed employees to assist its inspectors at construction

sites. Such employees were authorized to initial permit cards

and to radio to the main office the information regarding

inspections performed at the job sites. Because of this informal

and haphazard reporting system the official records maintained by

the County falsely reflected that the Respondent had performed

the inspections listed in this Administrative Complaint. He did

not. The records were maintained inaccurately.

12. By initialing the permit card and transmitting the

information to the County, the Respondent was performing his

duties as an employee-in-training and as directed by his

supervisors. The Respondent did not intend to mislead officials

and did not intend to file a false report required by law.

13. As a result of the flawed training system used by the

Martin County Building Department, this Respondent initialed

permit documents prior to licensure.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings.

15. The Petitioner bears the burden of proof in this cause

to establish by clear and convincing evidence the allegations of

the violation.

16. Section 468.621(1), Florida Statutes, provides, in

pertinent part:

(1) The following acts constitute grounds

for which the disciplinary actions in

subsection (2) may be taken:

* * *

(f) Making or filing a report or record

which the certificateholder knows to be

false, or knowingly inducing another to file

a false report or record, or knowingly

failing to file a report or record required

by state or local law, or knowingly impeding

or obstructing such filing, or knowingly

inducing another person to impede or obstruct

such filing.

17. The Petitioner has failed to establish that this

Respondent knowingly filed a false report. In this case the

clear and convincing evidence established that this Respondent

was following the instructions and training given to him. The

County supervisors directed the instant conduct. This Respondent

should not face administrative penalties due to a

miscommunication in the recording of the name of the person who

actually performed the inspections. Mr. Chambers admitted he

performed the inspections described in this case. The

Respondent's conduct in this case was in accordance with the

employer's directives and was not an attempt to obstruct the

accurate filing of required inspection records.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Building Code Administrators and

Inspectors Board, enter a final order dismissing the

Administrative Complaint against this Respondent.

DONE AND ENTERED this 23rd day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. Parrish

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 23rd day of October, 2000.

COPIES FURNISHED:

Dorota Trzeciecka, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Michael A. Rodriguez, Esquire

County Attorney's Office

2401 Southeast Monterey Road

Stuart, Florida 34996

Leif Grazi, Esquire

LAW OFFICES OF GRAZI & GIANINO, P.A.

217 East Ocean Boulevard

Stuart, Florida 34995

Anthony B. Spivey, Executive Director

Building Code Administrators

and Inspectors

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel

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.