Terry W. Rankin vs. COMMERCE AND INSURANCE

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law Terry W. Rankin vs. COMMERCE AND INSURANCE Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 STATE OF TENNESSEE BEFORE THE COMMISSIONER OF COMMERCE AND INSURANCE HOME INSPECTOR LICENSING PROGRAM IN THE MATTER OF: Terry W. Rankin, Respondent DOCKET NO: J INITIAL ORDER This matter came to be heard on February 12, 2014, before Leonard Pogue, Administrative Judge assigned to the Secretary of State, Administrative Procedures Division, and sitting for the Commissioner of the Tennessee Department of Commerce and Insurance. Jesse Joseph, Assistant General Counsel, Department of Commerce and Insurance represented the State. The Respondent, Terry W. Rankin, was present and represented himself. The subject of this hearing was a Notice of Hearing and Charges, filed on November 7, 2013, against the Respondent to determine whether a civil penalty or disciplinary action should be imposed against the Respondent for alleged violations of TENN. CODE ANN , et seq., and/or any rule or regulation promulgated there under. FINDINGS OF FACT 1. Respondent Terry W. Rankin is a home inspector licensed by the Commissioner, having been issued license number 466 on December 5, His license is scheduled to expire on December 4,

3 2. In October, 2012, Respondent, doing business as Premier Inspection Services, performed a home inspection of 2601 College Park Lane, Lakesite, TN 37379, for his client, Cleveland Wheeler, prior to Mr. Wheeler s closing on the purchase of this home. 3. Respondent s October, 2012 Home Inspection Report for this property consisted of only three (3) Summary Sheet pages. The State does not require that a specific inspection form be used. 4. Ray Baird testified as an expert in the field of home inspection. Mr. Baird is licensed in Tennessee as a home inspector and has been a commercial and home inspector since Mr. Baird reviewed Respondent s October, 2012 Home Inspection Report (Summary Sheets) and Respondent s response to Mr. Wheeler s complaint. According to Mr. Baird, the report is grossly lacking in content and performance. This inspection report lacked detail and failed to comply with the applicable Standards of Practice binding upon home inspectors licensed in Tennessee. Specifically, Mr. Baird noted that Respondent failed to describe in writing within this report several components or systems of the home as required by these standards. 5. As to the home s structural components and foundations, Respondent did not adequately describe in this report the type of foundation, floor structure, wall structure, columns or piers, ceiling structure or the roof structure, as required. 6. With respect to the home s electrical systems, Respondent failed in this report to properly describe the service entry conductor materials and whether the service type was overhead or underground, as required. 7. The home s plumbing system was not fully described by Respondent in this report in that he failed to indicate the location of the main water shutoff valve, as required. 2

4 8. As to the home s thermal adequacy, Respondent did not clearly describe in this report the methods he used to inspect under floor crawl spaces and attics, as required. 9. This home s roof covering was not properly described by Respondent in this report given the Respondent s failure to indicate the methods he used to inspect the roofing, as required. 10. With respect to the home s exterior, Respondent did not properly describe wall cladding materials, and he did not report whether any garage door operator will automatically reverse or stop when meeting resistance during closing, as required. 11. Respondent has been performing home inspections since He acknowledged that his summary sheets do not have all the information required. However, Respondent testified that he actually did in his inspection of the house everything he is alleged not to have done and this information was contained in a more detailed report which he gave to Mr. Wheeler s real estate agent; the more detailed report was to be given to Mr. Wheeler by the agent. Respondent testified that he did not make a copy of the more detailed report and doesn t know if the agent gave Mr. Wheeler the more detailed report. 12. The three page summary sheet is titled: SUMMARY SHEET(S) The Summary Sheet(s) Represents The Entire Report 13. After the Complaint was filed, the Department requested Respondent respond to Mr. Wheeler s allegations that the inspection was inadequate. When Respondent replied by to the Department, he did not initially reference any detailed report. When Department staff asked Respondent if there was a complete report and not just a summary, Respondent replied, in part, that We re saving trees here at Premier. We got away from the book report with our chicken scratching notes. Buyer, seller, and agents are only interested in Summary Sheets. 3

5 CONCLUSIONS OF LAW 1. TENN. CODE ANN provides, in part, as follows: (a) The commissioner may take disciplinary action against a licensee or applicant, deny an application for a license, assess a civil penalty of up to one thousand dollars ($1,000) per violation, or may suspend, revoke, or refuse to issue or renew a license when a licensee performs or attempts to perform any of the following acts:... (9) Violating any provisions of this part or rules promulgated by the commissioner under this part; 2. TENN. COMP. R. & REGS provides, in part, as follows: STANDARDS OF PRACTICE (3) Purpose and Scope. (b) Home Inspectors shall: (9) Electrical Systems. 3. Submit a written report to the client that shall at a minimum: (i)describe those systems and components required to be described in paragraphs (7) through (16) of this rule; (b) The home inspector shall describe: (10) Plumbing Systems. 2. Service entry conductor materials; 3. The service type as being overhead or underground; (b) The home inspector shall describe: 4. The location of any main water supply shutoff device. (11) Structural Components and Foundations. (b) The home inspector shall describe the type of: 1. Foundation; 2. Floor structure; 3. Wall structure; 4. Columns or piers; 4

6 5. Ceiling structure; and 6. Roof structure. (c) The home inspector shall: 3. Report the methods used to inspect under floor crawl spaces and attics; (12) Roof Coverings. (b) The home inspector shall: (13) Exterior Components. 2. Report the methods used to inspect the roofing. (b) The home inspector shall: 1. Describe wall cladding materials; 4. Report whether or not any garage door operator will automatically reverse or stop when meeting reasonable resistance during closing; 3. TENN. CODE ANN provides, in part, as follows: (a) With respect to any person required to be licensed, permitted, or authorized by any board, commission or agency attached to the division of regulatory boards, each respective board, commission or agency may assess a civil penalty against the person in an amount not to exceed one thousand dollars ($1,000) for each separate violation of a statute, rule or order pertaining to the board, commission or agency. Each day of continued violation constitutes a separate violation. 4. TENN. CODE ANN provides, in part, as follows: (a) Notwithstanding any contrary law, the division of regulatory boards or any board, commission or agency attached to the division of regulatory boards may assess the actual and reasonable costs of the investigation, prosecution and hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, complied in title 4, chapter 5, part 3, and in which sanctions of any kind are imposed on any person required to be licensed, permitted registered or otherwise authorized by the division or respective board, commission or agency. These costs may include, but are not limited to, those incurred and assessed for the time of the prosecuting attorneys, investigators, expert witnesses, administrative judges and any other persons involved in the investigation, prosecution and hearing of the action. 5

7 5. Rule , Civil Penalties, of the Tennessee Department of Commerce and Insurance, Home Inspectors, provides as follows: (1) With respect to any licensed home inspector, the commissioner may, in addition to or in lieu of any other lawful disciplinary action, assess a civil penalty against such licensee for each separate violation of a statute, rule or commissioner s order pertaining to home inspectors, in accordance with the following schedule: Violation Penalty (a) T.C.A $50 - $1000 (b) Rule $50 - $1000 (c) Commissioner s order $50 - $1000 (2) With respect to any person required to be licensed in this state as a home inspector, the commissioner may assess a civil penalty against such person for each separate violation of a statute in accordance with the following schedule: Violation Penalty (a) T.C.A $50 - $1000 (3) Each day of continued violation may constitute a separate violation. (4) In determining the amount of any penalty to be assessed pursuant to this rule, the commissioner may consider such factors as the following: (a) Whether the amount imposed will be a substantial economic deterrent to the violator; (b) The circumstances leading to the violation; (c) The severity of the violation and the risk of harm to the public; (d) The economic benefits gained by the violator as a result of noncompliance; (e) The interest of the public; (f) Willfulness of the violation. 6. TENN. COMP. R. & REGS provides, in part, as follows: ASSESSMENT OF INVESTIGATORY AND HEARING COSTS. (1) The Division of Regulatory Boards ( Division ) or any board, commission or agency attached thereto is authorized to assess the actual and reasonable costs of the investigation, prosecution and hearing of any disciplinary action held in accordance with the contested case provisions of the Uniform Administrative Procedures Act, compiled in Tenn. Code Ann. Title 4, Chapter 5, Part 3 in which sanctions of any kind are imposed on any person or entity required to be licensed, permitted, registered or otherwise authorized by the Division or any board, commission or agency attached thereto. 6

8 7. The State has the burden to introduce evidence that would by a preponderance of the evidence prove the issues should be resolved in the State s favor. 8. Respondent alleges there is a more detailed report. However, 1) Respondent did not produce it at the hearing; 2) the three page summary clearly states The Summary Sheet(s) Represents The Entire Report; 3) Respondent never referenced the detailed report in his s with the Department staff and, moreover, implies in his that there is no detailed report. 9. The State has met its burden of proof by a preponderance of the evidence that Respondent violated TENN. COMP. R. & REGS , Standards of Practice, and pursuant to TENN. CODE ANN Respondent is assessed a civil penalty in the amount of five hundred dollars ($500.00). WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that Respondent is hereby ASSESSED and shall pay a civil penalty in the amount of $ and the costs of this action are assessed against Respondent. This Initial Order entered this day of March, Leonard Pogue Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State this day of March, J. Richard Collier, Director Administrative Procedures Division 7