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Industry regulation lacking

Jack and Ruth Dunn of Hernando County learn there is little recourse when a home is constructed improperly.

By COLLINS CONNER

© St. Petersburg Times, published March 12, 2000


Jack Dunn and his wife, Ruth, put everything they had into their $50,000 house, so they kept a careful eye on the construction by builder Tommy Clark -- and on the all-too-quick scrutiny by Hernando County inspectors.

"They'd come up, walk around, smoke a cigar and leave," Dunn said. "They didn't even look at the plans. The electrical inspector walked through the house, said, "Looks all right to me, Tommy,' and got in his truck and left."

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The house near Spring Lake was not all right.

Although the plans call for plywood sheathing on the roof, it was built of particle board that had been left in the rain. The roof puffs and dips where the boards buckled. In the bathroom, workers chiseled a large hole in the concrete slab to accommodate plumbing that was improperly set. Another worker took a blowtorch to the kitchen linoleum, trying to get the bubbles out.

"The county didn't come out when I complained," Dunn said. "Not one person from the building department came out."

Dunn's experience may be unusual only in that he filed a complaint.

A St. Petersburg Times poll of 758 new home buyers in Pinellas, Hillsborough, Pasco and Hernando counties shows that when those buyers found significant flaws in their houses, few contacted the county and state regulators who are supposed to ensure that homes meet minimum construction standards and that builders are accountable for their work.

According to the poll, which represents the 7,049 bay area residents who bought new homes in 1998:

Half of the buyers with problems said the builder fixed them all.

One in four of the buyers with problems was "very satisfied" with the builder's response. Only 12 percent of buyers with problems complained to state or county regulators.

Considering government's track record on regulating the industry, complaining probably would not have helped.

Look at state laws

One law says regulators must prove contractors intentionally violated the building code before disciplining them -- a nearly impossible standard of proof.

Another law effectively discourages homeowners from squawking about construction flaws by making them fix the defects or disclose them before selling their houses.

When lawsuits are filed against builders, they become duels between high-priced experts. "Homeowners don't have the money to litigate these things," said construction lawyer Leo H. Meirose Jr. of Tampa. "Damages are not as great as they are in a personal injury case, so (construction law) doesn't attract contingent-fee lawyers."

Look at the licensing agency

In Florida, it is the Department of Business and Professional Regulation.

When the Times asked how many construction complaints were filed since 1994 and how many resulted in penalties against the builders, it took the agency six months to respond.

Department attorney G.W. Harrell said the numbers were unreliable because the agency is not set up to produce such data. The numbers Harrell did provide are low: 500 construction complaints filed last year.

Why so few complaints in a state that produced more than 100,000 new houses last year?

Buyers don't know the true quality of their homes' construction, Harrell said.

"If the paint's the right color and the lights come on and the A/C works, they're happy," he said. "The structural things are not apparent to the naked eye. It's one of those sleeping problems that people don't know about until way later."

Despite the low numbers, Harrell's data showed construction complaints rose last year, but the agency found far fewer of them valid and meted out lighter penalties than in previous years. Last year, the first year the department was run by Cynthia Henderson, an appointee of Gov. Jeb Bush, probable cause was found in 35 of 500 complaints filed (7 percent). In 1997-98, probable cause was found in 84 of 378 complaints filed (22 percent).

In 1997-98, 28 percent of the builders disciplined lost their licenses. Last year, not one builder lost his or her license. The most common penalty meted out last year was a citation.

"A lot of homeowners think we're their legal aid, that we're there to make them whole," Harrell said. "Is it our primary concern to go back and make sure every home is fixed? We don't think so."

Look at local inspections

Though building departments get millions of dollars from permit fees to oversee construction, it is not enough; area building departments say their small staffs can't do more than spot-check the work.

Charles Everly, Sarasota County's former building official, said the main reason he quit his job was his frustration at "being pressed so hard" to do more with less.

"The theory is that government is too expensive and we can squeeze it to reduce waste," he said. "The fact is, you can't."

When he would hear an inspector claim to do 24 or 25 inspections a day, Everly would say, "You're visiting 24 or 25 job sites, you're not doing 24 or 25 inspections -- at least not what I call inspections."

Bob Pensa, who directed Pinellas County's building department until his retirement in January, estimated his inspectors spend 21/2 to eight hours at each house as it is constructed.

His agency's records suggest that county inspectors are often on-site less than 10 minutes at a time. The department's September travel logs indicate that, on one day, an inspector averaged 2.8 minutes at each of 20 construction sites.

And when it came to handing out red tags for substandard work, Pinellas records show a significant disparity among inspectors. For instance, in the time it took one inspector to flag a single construction defect, another inspector flagged six.

Chief inspector Dave Livesay said the time spent on-site and the likelihood of red tags varies dramatically, depending on the type of inspection and the complexity of the house.

How does an inspector get out of his car, check a home's blueprints, examine a subcontractor's work and return to the car in less than 10 minutes?

"I can't answer how it was done," Livesay said. "I know I did it when I was in the field. I know our inspectors are doing it. The jobs are getting done. We are red-tagging jobs. We are finding things wrong. We're having things repaired. It happens somehow."

Still, Livesay said, "We are not guarantors of good construction; the contractor is."

Livesay likens inspectors to cops clocking speeders: The intent isn't to catch all offenders, but to spot-check construction, catch some errors and serve as a warning to other contractors.

"I currently have 11 field inspectors," he said. "We'd have to double our staff if we were going to have to guarantee construction, and at that, we still couldn't do it. It would just put more cops on the road."

There is another task building departments do not undertake: They do not track buyer complaints to see if the same builders habitually produce the same flaws.

If home buyers want to do such research, they are out of luck. The records either are not kept or they are filed in such a way that access is nearly impossible.

Big construction companies, like Lennar, Pulte and Centex hire a licensed building contractor as the "qualifier" who will pull their building permits. Consequently, complaints against the builders usually are filed under the qualifier's name.

Pasco County files major construction complaints under the name of the homeowner. In Tampa, they are filed by street address.

* * *

How does the ineffectiveness of government affect real people?

Ask the Dunns.

In 1998, the couple hired Tommy Clark of Infinity Homes of Hernando Inc. to build their concrete block house.

"We used up all our savings to buy this house, and we got cracks from one end to another," Jack Dunn said. "If they'd send an engineer out here, they would condemn this house."

The retired pipe fitter and his wife used to live in a double-wide mobile home; Dunn called it a "cardboard castle."

In November, Dunn was in his new house, checking above the garage door where a crucial concrete support beam, called a lintel, should be. He poked his finger through a damp spot on the wall and discovered there was no lintel.

There was no wall either. In its place, coated with textured paint, was a piece of cardboard.

Hernando County's licensing supervisor, James Friedrichs, said that although inspectors visit a house 16 times during construction, the county cannot guarantee it meets all codes.

"It's impossible for a building department to ensure 100 percent compliance," he said.

Once Dunn moved in and discovered all the problems, he complained to the county. The county notified builder Clark.

Three days later, Clark wrote back, saying he had "addressed all the items."

Not true, Dunn said; Clark had not addressed a one.

Clark did not respond to several telephone calls, a faxed letter or a certified letter from the Times seeking comment on this story.

Because Clark is a state-certified builder, the county's ability to discipline him is limited.

If defects are found after the house is approved by building inspectors, "we would have to show willful building code violations or fraud for us to have any jurisdiction," Friedrichs said.

The Hernando development department has a form letter it sends unhappy customers of such builders, advising them to take their complaint to the state or to court.

When Dunn described the house problems to his construction loan officer at what was then Barnett Bank, he was advised to withhold Clark's final payment.

He did.

Clark put a lien on the house.

The bank told Dunn to satisfy the lien or face foreclosure.

Dunn filed a complaint against Clark with the Department of Business and Professional Regulation, the state agency that licenses and disciplines builders.

Department officials had had previous dealings with Clark.

In 1994, while operating as Springwood Homes Inc., Clark's building privileges were suspended in Hernando and Charlotte counties, where he was accused of financial mismanagement and safety, sanitary and code violations.

A year later, the department accused Clark of fraud, saying he misrepresented his past troubles when he sought a license to build as Infinity Homes.

Clark said then that he had made good on his old debts. He said he did not lie about his troubles, he misunderstood the questions.

Three years after the first complaint was filed, state regulators punished Clark with a reprimand.

Dunn sent the agency photos of the construction problems, blueprints of his house and reports from two independent consultants on the condition of his roof. The investigator assigned to review Dunn's complaint left the agency before completing the review. Dunn's file vanished.

Another department investigator asked Dunn to resubmit his evidence, including another copy of his home's blueprints.

Dunn went to the Hernando Development Department to copy them.

They were gone.

Hernando had lost the entire permitting file for Dunn's house.

The state said Dunn could fix his house with money from the department's "recovery fund."

However, to apply for the funds, Dunn had to get a favorable finding from one of the regulatory agencies that had lost his file or he had to sue Clark and get a judgment against him.

Dunn said he searched two counties trying to find an attorney, but was told repeatedly that suing was pointless.

"One attorney said, "You can give me $50,000 and never get a dime,"' Dunn said.

"Me and my wife talked about we'll just take a suitcase and get in the car and leave."

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