The Issue The issue in this case is whether disciplinary action should be taken against the license of John Arena (Respondent) based upon violations of Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified residential contractor in Florida, having been issued license number CR-C021139. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 489, Florida Statutes, and rules adopted thereunder. During March, 1988, the Respondent's license was issued in an active status qualifying Classic Industries, Inc., and this licensure status was effective until September 1989, when the Respondent's license was placed in inactive status. On or about September 23, 1988, Dorothy G. Fields entered into a contract for residential repairs and construction with Classic Industries, Inc., for her residence located at 4361 Southwest 23rd Street, Ft. Lauderdale, Florida. At the time of this contract, the Respondent was the qualifying agent for Classic Industries, Inc. However, the Respondent never personally spoke with Dorothy Fields, or anyone acting on her behalf, concerning this contract. Fields' contract with Classic Industries clearly reflects her understanding that the work to be completed included window repair, the installation of an air conditioner, and insulation, for which she was to pay $6800. However, Respondent understood that the only work to be performed for Fields was window repair, and accordingly, he pulled a permit on September 27, 1988 only for the repair of her windows, and not for the air conditioner or insulation work. There is no evidence in the record which would support the Respondent's understanding, and it is, therefore, found that Respondent was in error when he failed to pull permits for the additional work which was to be performed on Fields' residence. Respondent visited the site of this job and determined that the window repairs had been completed according to code specifications. He did not observe any work being done on the air conditioner or the installation of insulation. Nevertheless, this work was, in fact, performed, and Fields made full payment to Classic Industries in the amount of $6800. The air conditioning work on Dorothy Fields' residence was subcontracted by Classic Industries to Carlos Jimenez, d/b/a, All American Services. At all times material hereto, Carlos Jimenez, d/b/a, All American Services, was not licensed and qualified by the Construction Industry Licensing Board in Florida. No permits were obtained for the air conditioning and insulation work, and a Notice of Violation was issued by the local building inspector on October 11, 1988. Subsequent thereto, permits were obtained on November 15, 1988, after this work had been performed. On October 4, 1990, a Final Order was filed by the Construction Industry Licensing Board involving the Respondent in Case Number 109713 (DOAH Case Number 90-1416). As a result of violations of Section 489.129(1)(d),(j) and (m), Florida Statutes, which were found in that case, the Respondent was fined $2250, and his license was also suspended for as period of thirty days, subject to this period of suspension being stayed if he paid the administrative fine within thirty days. There is no evidence in the record to indicate whether Respondent did, in fact, pay this fine within thirty days.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order placing Respondent's license on probation for a period of two years, and imposing an administrative fine in the amount of $2,000. DONE AND ENTERED this 21st day of November, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 6. Adopted, substantially, in Findings of Fact 3 and 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Copies furnished: Robert Harris, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John Arena 5961 S.W. 13th Street Plantation, FL 33317 Kenneth E. Easley, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202
The Issue Whether Respondent's, Florida Department of Transportation ("the Department"), decision to award a contract to Intervenor, DBi Services, Inc. ("DBi" or "Intervenor"), pursuant to the Bid Solicitation Notice and the Specifications Package (jointly referred to as "Solicitation") for Contract No. E5X18 (highway lighting maintenance in District Five), was contrary to its governing statutes, rules, or policies, or the solicitation specifications; and, if so, whether the award was contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is an executive agency of the state of Florida responsible for coordinating the planning of a safe, viable, and balanced state transportation system, serving all regions of Florida. § 334.044(1), Fla. Stat. The Department is tasked with providing a statewide transportation system that ensures the mobility of people and goods, enhances economic prosperity, and preserves the quality of Florida's environment and communities. § 334.046(2), Fla. Stat. To that end, the Department has authority to enter into contracts for the construction and maintenance of all roads under its jurisdiction. § 337.11(1), Fla. Stat. DBi is a transportation infrastructure asset operations and maintenance contractor that provides services primarily to owners of highway infrastructure, such as the Department, across the country. Most of the contracts DBi enters are performance-based contracts. DBi has performed more than 20 maintenance contracts for the Department. ALS is a certified electrical contractor specializing in highway lighting maintenance, roadway lighting, and traffic signalization, which previously performed work for the Department through DBi as its subcontractor on multiple occasions. The Solicitation On February 23, 2021, the Department issued a Solicitation for the performance of highway lighting maintenance work in District Five. District Five comprises Brevard, Flagler, Lake, Marion, Orange, Osceola, Seminole, Sumter, and Volusia counties. The Solicitation provided that "[t]he work under this Contract consists of maintaining the highway lighting system, including overhead, underdeck and sign lighting, at various locations throughout District Five." The Solicitation included two documents: (a) a Bid Solicitation Notice and (b) a Specifications Package containing Special Provisions that are specific to Contract No. E5X18. By its own terms, the Specifications Package replaced or added to specifications contained in the Department's Standard Specifications for Road and Bridge Construction, January 2021 edition. To the extent not modified by the Specifications Package, the definitions supplied in the Standard Specifications apply to terms used in the Specifications Package. The January 2021 Standard Specifications for Road and Bridge Construction define "bidder" as an individual, firm, or corporation submitting a proposal for the proposed work. It also separately defines "contractor" as the individual, firm, joint venture, or company contracting with the Department to perform the work. These definitions applied to the procurement of Contract No. E5X18. The Solicitation described the contract as a lump-sum "performance" contract or performance-based contract. This means that the Department will pay the winning contractor a fixed monthly price for maintaining certain performance levels. The goal of a performance contract is to achieve an ultimate result: to maintain a level of service as defined within the specifications and scope of the contract—here, the Department's highway lighting system throughout District Five. If the contractor satisfies its contractual obligations—whether by self-performing the work or by subcontracting the work—the contractor is paid on a lump-sum basis. With a performance contract, the Department does not know whether any of the work is subcontracted or whether the contractor self-performs the work. With a performance maintenance contract, the Department's Special Provisions typically do not require bidders to submit proof of licensure with their bids. It is up to the contractor, after contract execution, to conduct field assessments, to determine work needs, to determine what activities need to be performed, and whether any licensure is required to perform those activities. Performance contracts are distinguished from "task" or "work- directed" contracts, in which the Department, itself, identifies the work needs and issues work orders, or task orders, directing the contractor to furnish specific quantities for specific locations. With the Department's work-directed contracts, the Special Provisions generally require proof of licensure at bid time. The Bid Solicitation Notice contained the following requirement(s): EXPERTISE REQUIRED: For this Contract, the Contractor is required to have at least three years of experience in the performance of Highway Lighting, or the Project Superintendent must have at least three years of like experience as a Superintendent. A Contractor that presently has a certificate of prequalification with the Department in both "Underground Utilities (Electric)" and Traffic Signal" will suffice to meet the above requirements. The Solicitation included a form titled "Experience in Highway Lighting" ("Experience Form"), by which a bidder could demonstrate compliance with the Solicitation's expertise requirement. The Experience Form contained blank spaces in which a bidder was to list qualifying projects, as well as a space a bidder could mark with an "X" to indicate that it is prequalified with the Department in both Underground Utilities (Electric) and Traffic Signal, depending on how the bidder elected to meet the Solicitation's expertise requirement. To be eligible to bid on Contract No. E5X18, bidders were required to have either three years' experience in highway lighting or possess a certificate of prequalification with the Department in both Underground Utilities (Electric) and Traffic Signal. The Solicitation left it up to the bidder which method would be used. One of the special provisions in the Specifications Package, under the heading "Contractor Responsibility," was a modification of Article 715-2.1 of the Standard Specifications, which was deleted and replaced with the following: A license to do business as a certified or registered electrical contractor pursuant to Chapter 489, Part II, Florida Statutes is required. Provide a journeyman electrician possessing a valid journeyman electrician's license to supervise all work, Provide copies of all licenses, certificates, and registrations to document compliance with this Article upon request by the Engineer. The Specifications Package also provided in Article 8-1, titled "Subletting or Assigning of Contracts," that the "Contractor" may "sublet," or subcontract, the contract work. Article 8-1 provided that to subcontract any work, the Contractor must submit a written request to the Department's Engineer. This provision further stated that such a request is approved by default unless the Engineer notifies the Contractor within five business days of receipt of the request that the Department does not consent to the request. The Solicitation further stated that the Department's Proposal Budget Estimate for the contract was $476,000.00. No timely challenge to the Solicitation specifications was ever filed. The Parties' Submissions and the Intended Award On or before the March 25, 2021, due date, DBi and ALS submitted bids to the Department in response to the Solicitation. DBi's bid total was $547,308.00. DBi attested to having the requisite experience, listing three Department highway lighting contracts on which it served as prime contractor, spanning from July 2014 to June 2020. DBi also indicated that it was prequalified with the Department in both Underground Utilities (Electric) and Traffic Signal. Jeffrey Schechtman, DBi's Chief Operating Officer, testified that this indication of being prequalified was made in error, but that DBi nonetheless provided the information in the experience section which met the expertise requirement. ALS' bid total was $799,200.00. ALS also attested to having the requisite experience, claiming prequalification with the Department in both Underground Utilities (Electric) and Traffic Signal. Although it is undisputed that ALS has many years of experience in highway lighting, ALS chose not to list any qualifying projects, and instead relied solely on its prequalification for its bid proposal. On March 25, 2021, the Department issued the Vendor Ranking for the Solicitation, which indicated that DBi was responsive and had submitted the lowest bid, and the Technical Review Committee recommended the Department award Contract No. E5X18 to DBi. On April 1, 2021, the Contract Awards Committee indicated an intent to award Contract No. E5X18 to DBi. On April 6, 2021, ALS filed, with the Department, its notice of intent to protest and, on April 14, its Petition. ALS filed an Amended Petition on June 11, 2021. The Protest ALS contends that both the Solicitation and section 489, part II, Florida Statutes, required each bidder to hold an electrical contracting license, issued by the Florida Department of Business and Professional Regulation, at the time of bid submission. According to ALS, because DBi lacks such a license, DBi is nonresponsive and nonresponsible, and the Department's intended award to DBi is clearly erroneous, contrary to competition, arbitrary, or capricious. Additionally, ALS contends that DBi does not have the highway lighting expertise required by the Solicitation. DBi and the Department Responses DBi admits that it did not have an electrical contractor license at the time of bid submission and does not have a certificate of prequalification. However, both DBi and the Department assert that neither the Solicitation nor chapter 489, part II, require it. Rather, the license requirement is not for the bidder, but for the contractor (the entity that is successfully awarded the project) and can be satisfied by using the services of a licensed subcontractor. Further, DBi asserts that it properly listed three highway lighting projects which it supervised, thereby demonstrating the requisite experience. Both DBi and the Department question ALS' standing to bring this protest because, although ALS indicated it holds prequalification in both Underground Utilities (Electric) and Traffic Signal, ALS does not possess prequalification for Underground Utilities. To the extent ALS argues the Solicitation, by its scope of work, necessitates that a bidder has a license in electrical contracting, ALS is attempting to litigate an untimely specifications challenge. The License Requirement ALS contends "the entirety of the work [under Contract No. E5X18] constitutes electrical contracting for which an electrical contracting license is absolutely required." Amended Petition, ¶ 45. According to ALS, the requirement is set forth both expressly in the Solicitation and by the nature of the work described therein. ALS points to Article 715-2.1 of the Specifications Package, entitled "Contractor Responsibility": "A license to do business as a certified or registered electrical contractor pursuant to Chapter 489, Part II, Florida Statutes is required." Chapter 489, part II, governs electrical contracting. Under the statute, only certified or registered electrical contractors are permitted to perform electrical contracting in Florida. § 489.516(2), Fla. Stat. ("No person who is not certified or registered shall engage in the business of contracting in this state."). DBi and the Department stipulated on the record that most of the work described in the Specifications Package is electrical contracting work that requires an electrical contractor's license under chapter 489, part II. ALS expert, Curtis Falany, testified to the same. Mr. Falany conceded that under chapter 489, part II, work requiring an electrical contracting license begins the first time a worker approaches an electrically energized device and begins to manipulate it. Mr. Falany further admitted it is possible that, after Contract No. E5X18 is executed, a month could elapse without any such work needing to be performed. DBi does not dispute that work requiring electrical contracting licensure will likely arise under Contract No. E5X18, but contends that, in this performance maintenance contract, exactly what work will be performed is entirely speculative at this point. Further, while ALS refers to the Specifications Package as the contract's "scope of work," DBi asserts that the Specifications Package is a set of specifications that would apply to work that may need to be performed under the contract. Although ALS' argument, that intended electrical contracting work must be awarded to a licensed contractor, makes common sense, it ignores the explicit language of the Specifications and the reality of a performance- based maintenance contract. The only reference in the Specifications to a license requirement is under the heading "Contractor Responsibility," not "Bidder Responsibility." In fact, when the Department intends to require the bidder to have the electrical license, it is quite capable of asking for proof of the same at the time of the bid submission. For example, the Department entered into evidence the solicitation for a District Seven highway lighting maintenance contract that ALS was recently awarded, Contract No. E7N92, in which the solicitation expressly provides bidders "must possess and submit with their bid a license to do business as a Certified or Registered Electrical Contractor pursuant to Chapter 489, Part II, Florida Statutes." The Solicitation here contains no such provision. Likewise, the "Experience in Highway Lighting" form bidders were required to submit with their bids did not mention licensure. ALS contends DBi may not subcontract electrical work to a licensed electrical contractor. However, this ignores Article 8-1 of the Specifications, entitled, "Subletting or Assigning of Contracts," which states that the "Contractor" may "sublet," or subcontract, the contract work. The Department's witnesses testified that this means the contractor may subcontract up to 100 percent of the contract work. There is no provision in the Solicitation directing bidders to identify their subcontractors when submitting their bids. Indeed, with performance-based contracts, the Department typically does not ever learn whether any of the work is subcontracted or whether the work is self-performed. The competent, substantial evidence showed that not all work that might be performed under Contract No. E5X18 directly involves electrical work. For example, maintenance of traffic (referred to as "MOT"), tree trimming, and the general assessment of what work is needed typically do not involve installing, repairing, altering, adding to, or designing electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof that generates, transmits, transforms, or utilizes electrical energy in any form. See § 489.505(12), Fla. Stat. Consequently, the undersigned finds that Contract No. E5X18 is not an electrical contract per se, but rather is a performance maintenance contract that—like a broader, general performance maintenance contract— should eventually involve electrical work that requires electrical contracting licensure. The undersigned also finds that, while such work is likely to occur, whether and when it will is entirely speculative. Accordingly, only requiring the actual contractor (either on its own or through a subcontractor) instead of the bidder to possess an electrical contractor's license at the time of work, is the only logical interpretation of the Solicitation language. The Experience Requirement As discussed above, the Solicitation instructed each bidder to demonstrate, using one of two methods, the expertise that qualifies it to perform the contract. Bidders could describe "at least three years of experience in the performance of Highway Lighting" or show that they were prequalified by the Department in two specified work classes. On the "Experience in Highway Lighting" form each bidder was required to submit, DBi listed three contracts, all performance-based contracts with the Department's District Five, and all active contracts when bids for Contract No. E5X18 were submitted. In the space to describe the "Type of Work Performed," DBi stated, "Asset Maintenance/Highway Lighting." In the space to specify "Prime or Sub," DBi stated, "Prime."1 ALS contends DBi lacks the required expertise in two ways: (1) DBi did not self-perform the electrical work on those contracts but instead subcontracted the work; and (2) those contracts were "asset maintenance" 1 DBi also checked the “prequalified” box, but its Chief Operating Officer testified that this was an error. contracts, not "highway lighting maintenance" contracts. DBi readily admits that ALS performed some of the electrical work as a subcontractor on each contract listed and contends that DBi's position as prime contractor on all three contracts renders the work it subcontracted DBi's experience for purposes of the Solicitation. That the contracts DBi listed were general asset maintenance contracts instead of, specifically, lighting maintenance contracts, does not matter here. The Solicitation expressly refers to Contract No. E5X18 as a "Maintenance Performance Contract" and lists as the sole work item "Highway Lighting Maintenance." The Department considers highway lighting to be an asset of the Department, which is consistent with calling Contract No. E5X18 a maintenance contract. Further, Ms. Hutchison, the State Administrator for Maintenance Contracting, testified, although some of the Department's asset maintenance contracts are broad in scope and cover all work in a geographic area, that is not always the case; sometimes an asset maintenance contract is specific to only one type of work. The Solicitation provided that a bidder could demonstrate expertise by showing it had "at least three years of experience in the performance of Highway Lighting." The Solicitation does not state that experience must be direct- or self-performed or that the bidder may not include experience of subcontractors. From the Department's and DBi's perspectives, DBi "performed" those contracts—including the electrical work—within the meaning of the Solicitation's expertise provision. DBi is the one that contracted with the Department and is responsible to ensure all work under the contracts is timely completed in accordance with the contracts' terms. DBi is the one that invoiced the Department and the one the Department has paid and pays for all work under the contracts. And because, like the contract at issue here, these contracts are performance contracts, DBi was and is the one responsible for determining what work needs to be performed and how. DBi does not simply oversee others' performance of work items determined to be necessary by the Department, as occurs with a work-item contract. That certain work was performed by subcontractors does not negate that DBi successfully completed the contracts. The Department's practice, when procuring performance-based contracts, of treating a prime contractor's experience to include the experience of subcontractors is rational, reasonable, and justifiable. Accordingly, DBi met the experience requirement of the Solicitation. In contrast, ALS did not meet the experience requirement. ALS did not list three years' experience in highway lighting work, instead choosing to demonstrate expertise solely through its Department-issued prequalification. ALS submitted a copy of its current Certificate of Qualification and checked the "prequalified" box on the Experience in Highway Lighting form, representing that it held both Underground Utilities (Electric) and Traffic Signal prequalification. However, ALS' Certificate of Qualification reflects that ALS is prequalified in the work classes Traffic Signal and Electrical Work, but not Underground Utilities (Electric). ALS attempted to show, through the testimony of its Region Manager Richard Calledare, that Electrical Work is a "major" work class and Underground Utilities (Electric) is a "minor" work class subsumed within the umbrella of Electrical Work and that, therefore, ALS was effectively prequalified in both work classes. In support, Mr. Calledare suggested that the undersigned should "check the [Department's] website." However the website was not introduced into evidence and constitutes uncorroborated hearsay which cannot support a finding of fact. ALS presented no competent, substantial evidence supporting this argument—no evidence as to what major and minor work classes are and no evidence that the Electrical Work work class encompasses Underground Utilities (Electric). Further, the only evidence ALS presented was testimony from Mr. Calledare, yet there was no evidence Mr. Calledare was ever employed by the Department or had any specialized knowledge or other qualification that would render his perspective on this issue competent and substantial evidence sufficient to support a finding that ALS' prequalification in Electrical Work sufficed to meet the Underground Utilities (Electric) requirement. In contrast, the Department presented competent, substantial evidence showing that ALS' argument fails. As Mr. Calledare conceded, the Solicitation's plain language makes no mention of the work class Electrical Work. The Department's current list of qualified contractors shows that multiple contractors are prequalified in both these classes, demonstrating that a contractor can be prequalified in Electrical Work without being prequalified in Underground Utilities (Electric) and reflecting that being prequalified in Electrical Work is not the same as being prequalified in Underground Utilities (Electric). Deanna Hutchison, a Department State Administrator for Maintenance Contracting, testified that Underground Utilities (Electric) and Electrical Work are separate, mutually exclusive classifications and that Electrical Work is not inclusive of Underground Utilities (Electric). ALS' failure to hold a Department-issued prequalification in Underground Utilities (Electric), as well as Traffic Signal, and failure to demonstrate the required expertise by any other means, rendered ALS' bid nonresponsive.2
Conclusions For Petitioner: Karen D. Walker, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 James Keith Ramsey, Esquire Ben W. Subin, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 For Respondent: Sean W. Gellis, General Counsel George Spears Reynolds, Esquire Douglas Dell Dolan, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 For Intervenor: Megan S. Reynolds, Esquire William Robert Vezina, III, Esquire Vezina Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the protest filed by American Lighting and Signalization, LLC, should be dismissed, and the Department of Transportation should enter a final order awarding Contract No. E5X18 to DBi. DONE AND ENTERED this 27th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S MARY LI CREASY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2021. Douglas Dell Dolan, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ben W. Subin, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Karen D. Walker, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 William Robert Vezina, III, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 George Spears Reynolds, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Megan S. Reynolds, Esquire Vezina, Lawrence & Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301 Sean W. Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 James Keith Ramsey, Esquire Holland & Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner is entitled to licensure as a certified electrical contractor pursuant to the provisions of Section 489.514, Florida Statutes.
Findings Of Fact At all times material hereto, Petitioner, William Davidson Schaefer (Petitioner), was a licensed electrical contractor, having been issued License No. ER-0008163. This license, issued to Petitioner after he fulfilled the competency requirements of the Pinellas County Construction Licensing Board, allows him to practice electrical contracting in Pinellas County, Florida. To meet the competency requirements of the Pinellas County Construction Licensing Board necessary to obtain an electrical contracting license, Petitioner had to successfully complete a written examination. In 1981, when Petitioner received his license, the test required by the Pinellas County Construction Licensing Board was administered by Construction Exams, Inc., the sole test provider for Pinellas County. Petitioner took the Electrical Contractor's Examination administered by Construction Exams, Inc. on June 26, 1981, and earned a passing score of 86.5%. Petitioner has practiced electrical contracting in Pinellas County since 1981 and has been sole owner of Lester Electric, Inc., an electrical contracting company, since 1983. Petitioner's license is active and in good standing. Moreover, during the time that Petitioner has practiced electrical contracting, he has not been the subject of any complaints filed with, or discipline imposed by, the Pinellas County Construction Licensing Board. On or about May 8, 2000, Petitioner applied to the Electrical Contractors' Board (Board) for certification as an electrical contractor pursuant to the "grandfathering" provisions of Section 489.514, Florida Statutes. On or about May 26, 2000, the Board denied Petitioner's application for certification as an electrical contractor because he did not provide information upon which the Board could determine that the examination administered by Construction Exams, Inc. is substantially similar to the state examination. The exam administered by Construction Exams, Inc. contained a technical section and a general business section. However, Petitioner does not recall if the examination included a section or questions on safety. On the Examination Verification Form submitted to the Board as part of Petitioner's application, the Pinellas County Construction Licensing Board verified that the examination taken by Petitioner in 1981 included a technical section and a general business section. However, in response to a question on the form asking if the examination had included "fire alarm questions," the Pinellas County Construction Licensing Board marked the response, "Not sure." The company, Construction Exams, Inc., that administered the examination that Petitioner took in 1981 is no longer in business. Petitioner sought to obtain a copy of the examination from the Pinellas County Construction Licensing Board, but learned that the local board did not have a copy of the examination. Except for the time he was taking the examination, Petitioner never had nor has he been able to obtain a copy of the examination from any source. Although Petitioner does not recall if the examination that he took in 1981 included questions on safety and/or fire alarms, he was able to obtain information about some of the areas covered on the examination. Based on the document Petitioner was able to obtain, it appears that the examination he took included questions relative to the mechanics' lien law, workers' compensation law, first aid, OSHA regulations, federal tax law and the national electrical code. The state's Certified Electrical Contractor Exam includes a technical section, a general business section, and a safety section. The examination consists of 150 multiple choice questions, is an open-book test, and includes both a morning session and an afternoon session. Given that Petitioner took the examination more than 20 years ago, it is understandable that he can not recall all the questions and/or sections that were covered on the examination, and that he was unable to obtain a copy of the examination from any source. However, without a copy of the examination or other documents which sufficiently detail the contents of the examination Petitioner took in 1981, it is impossible to determine if that examination is substantially similar to the state examination. Petitioner failed to provide the Board with any information upon which it could make a determination that the examination he took is substantially similar to the state examination required for certification as an electrical contractor.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Board enter a final order denying Petitioner's application for licensure as a certified electrical contractor. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: Robert C. Decker, Esquire Decker Beeler, P.A. 25 Second Street, North, Suite 320 St. Petersburg, Florida 33701 Barbara R. Edwards Assistant General Counsel Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Sam Pollack, held certified air-conditioning contractor license number CA-C008663 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). He has been licensed by the Board for approximately sixteen years. Respondent used his license with and was qualifying agent for a firm known as Dr. Cool's Clinic, Inc. located at 10662 Southwest 186th Lane, Miami, Florida. Around April 1, 1986 Steven and Beverlee Swerdlen moved into a 1,400 square foot prefabricated modular home at 19800 Southwest 180th Avenue, Miami, Florida. The home is located in a large modular home subdivision known as Redland. Although a modular home resembles a mobile home in certain respects, it is considered to be a fixed, permanent residential dwelling under local building codes. The home had previously been a model unit in the subdivision and had never been lived in since being built at least three years earlier. On April 3, 1986 respondent entered into a contract with Steven Swerdlen to install a Rheem four-ton air conditioning unit at Swerdlen's home. The contract called for a total price of $2152.50. The Swerdlens paid for the job in full the same day by credit card. Because Swerdlen's home had the ductwork and twenty outlets already in place, Pollack was to adapt the unit to the existing ductwork. Respondent's firm was selected over other firms because Mrs. Swerdlen was impressed with Pollack's advertisement which represented that Pollack provided "air conditioning designed and serviced for people with allergies and other respiratory problems." This was important to her since she suffers a heart condition and requires air-conditioning during warm weather. She also accepted respondent's oral representations that he had the experience and expertise to satisfy her needs. The ductwork in the home was accessible through a small crawlspace located under the floor. There were also two vents under the floor to prevent a buildup of moisture. The flooring in the home was made of particle board and was sealed with a vapor barrier which was designed to protect it from moisture damage. When the Swerdlens purchased their home, the vapor barrier was already cracked in several places and, coupled with the fact that the area had only two vents, the floor was susceptible to moisture damage. Before a central air-conditioning unit is installed, a prudent and competent air-conditioning contractor should take measurements of the home, perform heat loss calculations and inspect the existing ductwork to insure that the proper size unit is being installed. The evidence is sharply conflicting as to what steps, if any, were undertaken by respondent when he visited the Swerdlen home on April 3 to discuss the job. It is found, however, that Pollack made a visual inspection of the home but did not take formal measurements or make heat loss calculations. He inspected the ductwork to the extent he looked under the house through the crawlspace opening. He noted a potential problem with the vapor barrier and a supply duct hookup location that was blocked by a pier (support). He mentioned to Mrs. Swerdlen that she needed additional ventilation windows underneath the home and that she had a potential moisture problem with the vapor barrier. However, he did not suggest that she wait and have those matters corrected before he installed the unit. The unit was installed on April 7, 1986, or four days after the contract was signed. Besides respondent and a helper, Mrs. Swerdlen was the only person present. No electricians were called in to assist on the job. According to Pollack, the only electrical work that he performed was the installation of the thermostat unit in the closet under the fuse box and the internal electrical connections to the unit. As to this latter work, Pollack stated he did not believe an electrical license was needed to connect the terminal wires to the air-conditioning unit. He did not obtain a building permit from the county nor did he request an inspection of his work. Both were required by county regulations. Because the supply duct hookup was blocked by a pier, Pollack was forced to place a three or four foot high supply duct in a bedroom closet. Without advising the Swerdlens as to the extent or nature of modifications needed to bypass the pier, Pollack cut a large, unsightly hole in the closet floor. It was also necessary to penetrate the vapor barrier when the hole was cut. The cut was never resealed. The new duct took up much of the closet space and was vulnerable to puncture damage. A photograph of the supply duct is found in petitioner's exhibit 14. After the work was completed, Pollack did not advise the Swerdlens that the vapor barrier had been broken or that it needed to be resealed to avoid moisture damage to their floor. The power source to the air-conditioning unit was a 10-gauge wire. Since the unit required a larger gauge, it was necessary that an 8-gauge wire be installed. Pollack and his helper left for one and one-half hours at lunch during the day of installation, and Pollack claims the wire was changed by someone during the time he was gone. The Swerdlens contended they knew nothing about electrical wiring and could not perform the task themselves. Their testimony is accepted as being more credible and it is found that Pollack, even though he was not licensed as an electrician, changed the electrical power source wiring. In addition, Pollack did all other electrical work required for the installation of the unit. In doing so, he made no provision for overload, left exposed wiring in the closet by the thermostat and failed to provide a service disconnection switch for the unit inside the home. Until these deficiencies were corrected several months later, the Swerdlens could smell a burning odor in their home. According to industry standards and local building code requirements, the unit should have been placed on a concrete slab. However, Pollack used two sets of concrete runners obtained from the unit manufacturer. He justified this on the ground that many other homes in the same subdivision did not have slabs under their units. Even so, this did not justify a deviation from code requirements. Because a slab was not used, the unit sank into the ground after the first rainfall. Pollack eventually installed a cement slab in November, 1986 after being ordered to do so by local building officials. The Swerdlens' floors began to buckle and ripple within a short time after the unit was installed. It began in the bathroom directly above the area where Pollack had penetrated the vapor barrier to install the supply duct and was exacerbated by the closure of one of the two vents under the floor when Pollack installed the unit. The damaged floor is memorialized in photographs received in evidence as petitioner's exhibit 14. Mrs. Swerdlen contacted respondent after the above problems began to occur. Other than adjusting the thermostat to get better cooling, Pollack did nothing since he did not think he was responsible for the other problems. He offered to make the other changes for additional compensation and if the Swerdlens would agree to release him from all liability. After declining Pollack's offer, Mrs. Swerdlen had other persons or companies make the needed repairs. Most of the costs were paid by her insurance company. She also contacted the Metropolitan Dade County Building and Zoning Department (Department) and the Board. The Department learned that no permit had been obtained by Pollack even though one was required and that no inspections had been made during and after the work. Pollack obtained an after-the-fact permit on November 24, 1986, after paying a double fee and a $100 violation fee for failing to timely obtain the permit. After being contacted by Mrs. Swerdlen, a Department mechanical inspector made an inspection of the Swerdlens' home on November 24, 1986. He found several violations of the local building code including (a) a failure to obtain a permit and have required inspections made, and (b) improper electrical work. A summons was issued against Pollack for these violations. The disposition of the summons is not of record. The inspector also noted that the vapor barrier around the closet supply duct had not been resealed, that the flooring was warped above the cut and that the unit was not on a concrete slab. Although the inspector suggested that Pollack correct these deficiencies, only the latter deficiency was corrected. The work never passed final inspection. The Board employed a Jacksonville residential contractor as its expert in this case. Although the expert did not personally inspect the property, he reviewed photographs of the site, respondent's deposition and the investigative file and spoke with the Swerdlens by telephone. According to the Board's expert, Pollack was guilty of gross negligence by performing work that exceeded the scope of his license, performing potentially hazardous electrical wiring, installing a non-efficient system in the Swerdlens' home, failing to follow accepted industry rules concerning static friction, velocities, noise levels and filtration, failing to properly inspect the home prior to installation, improperly installing the unit, damaging the vapor barrier, installing a large supply duct in the closet without obtaining the Swerdlens' approval and failing to use a cement slab to support a heavy unit. He further opined that respondent was deceitful by selling the system in the manner that he did, particularly since it was sold and installed within a four day period with no thought given to or preparation taken as to the problems that might be encountered. The expert agreed that the work was made more difficult by the position of the pier but stated that Pollack should have explained this problem to the Swerdlens and obtained their approval prior to cutting through their closet floor. Pollack has worked in the air-conditioning business for around 26 or 27 years, of which two were spent as a building inspector for Dade County in the late 1960s. He contended he warned Mrs. Swerdlen about the penetrated vapor barrier, the blocked air duct and the lack of a sufficient number of vents. Pollack also stated he advised Mrs. Swerdlen it was her responsibility to get an electrician to do all electrical work. However, these contentions are rejected as not being credible. Moreover, if there were special problems with the Swerdlens' home, it was respondent's responsibility to design and install a system that was compatible with those special needs. Pollack asserted that the Swerdlens' home was actually a mobile home, and he was under the impression that permits were not required for work on this type of home. However, this contention is irrelevant since Dade County has required permits for air conditioning work on both fixed and mobile homes for at least the last ten years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(d), (j), and (m), Florida Statutes (1985), that he pay a $3,000 civil fine within thirty days from date of a Final Order in this cause, and that his license be suspended for thirty days, or until the fine is paid if after the expiration of said thirty day period. DONE AND ORDERED this 3rd day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.
Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
The Issue The issues are whether the existing and proposed provisions of Florida Administrative Code Rule 61G4-15.005, as identified in the next paragraph, are invalid exercises of delegated legislative authority.
Findings Of Fact Petitioner Gold Coast School of Construction, Inc. (Gold Coast), engages in the business of offering courses to individuals who seek to become certified or registered contractors in Florida. Gold Coast offers prelicensing courses for prospective general contractors, building contractors, residential contractors, Class A air conditioning contractors, Class B air conditioning contractors, Class C air conditioning contractors, and roofing contractors. Enrollment in these classes ranges from 200-600 students annually. For the trades in which Gold Coast offers prelicensing courses, Gold Coast is substantially affected by the proposed rule, which would substantially raise the net-worth requirements imposed on prospective contractors, reduce the number of persons who could qualify for certification, and reduce the number of persons who would enroll in Gold Coast's prelicensing courses. Petitioner Douglas L. Gamester (Gamester) has passed the Construction Industry Licensing Board (Respondent) examination for certification as a general contractor. After he filed his rule challenge, Respondent granted him a general contractor's certificate and approved his qualification of a business entity. Gamester is not substantially affected by the rule or proposed changes to the rule. Although Gamester may, in the future, attempt to obtain other contracting certificates in other trades, any finding of such plans at present would be based entirely on speculation. Florida Administrative Code Rule 61G4-15.005 provides: 61G4-15.005 Requirements for Certification and Registration. In order that the Board may carry out its statutory duty to investigate the financial responsibility, credit, and business reputation of a new applicant for certification or registration or a change of status of a certification or registration, an applicant shall be required to forward the following to the Department for a review by the Board: A credit report from any nationally recognized credit agency as defined in subsections 61G4-12.011(13) and (14), F.A.C. A financial statement, not older than 12 months, which shall contain information indicating the current assets, current liabilities, total assets, total liabilities, and total net worth, and which shall report all material financial changes occurring between the date of the financial statement and the date of the application. As a prerequisite to issuance of a certificate, an applicant shall, in addition to the submissions required in subsections and (2) above, submit competent, substantial evidence to the Florida Construction Industry Licensing Board demonstrating the following: Net worth as listed below for the following categories of contractors: General Contractor, $20,000; Building Contractor, $20,000; Residential Contractor, $20,000; Sheet Metal Contractor, $10,000; Roofing Contractor, $10,000; Class A Air Conditioning Contractor, $10,000; Class B Air Conditioning Contractor, $10,000; Class C Air Conditioning Contractor, $10,000; Mechanical Contractor, $10,000; Commercial Pool/Spa Contractor, $10,000; Residential Pool/Spa Contractor, $10,000; Swimming Pool/Spa Servicing Contractor, $2,500; Plumbing Contractor, $10,000; Underground Utility and Excavation Contractor, $10,000; Solar Contractor, $10,000; Residential Solar Water Heating Specialty Contractor, $2,500; Specialty Structure Contractor, $10,000; Pollutant Storage System Specialty Contractor, $10,000; Gypsum Drywall Specialty Contractor, $2,500; Gas Line Specialty Contractor, $10,000; or Glass and Glazing Specialty Contractor, $10,000. Possession of either a letter of credit or a compliance bond established to reimburse the appropriate parties for diversion of funds, abandonment, and all other statutory violations, said instruments to be issued in the same license classification to dollar ratio listed in paragraph (a), above. The aforementioned instruments are not to be construed as performance bonds. Net worth shall be defined to require a showing for all contractor licensure categories that the applicant has a minimum of 50 percent (%) of the amount in cash. Cash shall be defined to include a line of credit. On February 6, 2004, Respondent published in the Florida Administrative Weekly, Volume 30, Number 6, proposed changes to Florida Administrative Code 61G4-15.005(3)(a), so that the new net-worth requirements would be as follows (new language is underlined and old language is stricken): Net worth as listed below for the following categories of contractors: General Contractor, $80,000 20,000; 20,000; 10,000; 10,000; Building Contractor, $40,000 Residential Contractor, $20,000; Sheet Metal Contractor, $20,000 Roofing Contractor, $20,000 Class A Air Conditioning Contractor, $20,000 10,000; Class B Air Conditioning Contractor, $20,000 10,000; Class C Air Conditioning Contractor, $20,000 10,000; Mechanical Contractor, $20,000 10,000; Commercial Pool/Spa Contractor, $20,000 10,000; Residential Pool/Spa Contractor, $20,000 10,000; Swimming Pool/Spa Servicing Contractor, $10,000 2,500; Plumbing Contractor, $20,000 10,000; Underground Utility and Excavation Contractor, $20,000 10,000; Solar Contractor, $20,000 10,000; Residential Solar Water Heating Specialty Contractor, $5,000 2,500; Specialty Structure Contractor, $20,000; 10,000; Pollutant Storage System Specialty Contractor, $20,000; 10,000; Gypsum Drywall Specialty Contractor, $5,000; 2,500; Gas Line Specialty Contractor, $20,000 10,000; or [sic]. Section 489.105(3), Florida Statutes, divides contractors into Division I and Division II. Division I contractors are general, building, and residential contractors. Division II contractors are all other contractors. Section 489.105(3), Florida Statutes, defines Division I contractors as follows: "General contractor" means a contractor whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part, except as otherwise expressly provided in s. 489.113. "Building contractor" means a contractor whose services are limited to construction of commercial buildings and single-dwelling or multiple-dwelling residential buildings, which commercial or residential buildings do not exceed three stories in height, and accessory use structures in connection therewith or a contractor whose services are limited to remodeling, repair, or improvement of any size building if the services do not affect the structural members of the building. "Residential contractor" means a contractor whose services are limited to construction, remodeling, repair, or improvement of one-family, two-family, or three-family residences not exceeding two habitable stories above no more than one uninhabitable story and accessory use structures in connection therewith. In contrast to building and residential contractors, a general contractor is unlimited in the scope of work that he or she may under take, subject to Section 489.113(3), Florida Statutes, which requires a contractor to subcontract out electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air conditioning work, unless the contractor is certified or registered in the particular trade. Building contractors may undertake work on residential or commercial structures not more than three stories high, and residential contractors may undertake work on limited residential structures not more than two stories high. Although Petitioners identify various small jobs that require a general contractor's certificate or registration, such as the construction of small communications towers, balcony repairs in parking garages, and door repairs in high-rise apartments, the record generally supports the finding that the scope of jobs undertaken by general contractors is more extensive than the scope of jobs undertaken by building contractors, and the scope of jobs undertaken by building contractors is more extensive than the scope of jobs undertaken by residential contractors. This case involves one of the requirements imposed on persons seeking to become certified as contractors in specific trades. Certification is distinct from registration. Section 489.105(7) and (8), Florida Statutes, defines "certificate" as a certificate of competency issued by Respondent and a "certified contractor" as a contractor who may practice anywhere in the state. Section 489.105(9) and (10), Florida Statutes, defines "registration" as registration with Respondent and a "registered contractor" as a contractor who may practice only in the local jurisdiction for which the registration is issued. Section 489.115(1), Florida Statutes, prohibits any person from engaging in the practice of contracting without first obtaining a certificate or registration in the appropriate trade. Section 489.115(5)(b) and (6), Florida Statutes, provides: (b) In addition to the affidavit of insurance, as a prerequisite to the initial issuance of a certificate, the applicant shall furnish a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant and evidence of financial responsibility, credit, and business reputation of either himself or herself or the business organization he or she desires to qualify. The board shall adopt rules defining financial responsibility based upon the applicant's credit history, ability to be bonded, and any history of bankruptcy or assignment of receivers. Such rules shall specify the financial responsibility grounds on which the board may refuse to qualify an applicant for certification. * * * (6) An initial applicant shall, along with the application, and a certificateholder or registrant shall, upon requesting a change of status, submit to the board a credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant or certificateholder or registrant. The credit report required for the initial applicant shall be considered the minimum evidence necessary to satisfy the board that he or she is financially responsible to be certified, has the necessary credit and business reputation to engage in contracting in the state, and has the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct. The board shall, by rule, adopt guidelines for determination of financial stability Although testimony at the hearing suggested that "history of bankruptcy" meant an inability to generate sufficient cash flow to pay debts owed, it is more likely that a "history of bankruptcy" is a record of filing for bankruptcy. Like the appointment of a receiver, the filing of a petition for bankruptcy is an action that is easily detected, as opposed to the inability to pay debts as they matured or the existence of liabilities in excess of assets--either of which, for most natural persons, is difficult to determine, especially historically. The "credit report" mentioned in Section 489.115(5)(b), Florida Statutes, and the "credit report" mentioned in Section 489.115(6), Florida Statutes, is the same credit report. Florida Administrative Code Rule 61G4-12.011(11) and (12) defines the credit report as follows: A “credit report from a nationally recognized credit agency that reflects the financial responsibility of the applicant, certificateholder or registrant”, shall for the purposes of Section 489.115(6), F.S., mean a credit report that provides full, accurate, current, and complete information on the following items in a manner which allows the Board to determine the credit worthiness of the applicant: Payment history; Credit rating; Public filings in county, state and federal courts; Bankruptcies, business history, suits, liens, and judgments, all on a nationwide basis; Location of business, number of years in business; Social security numbers, if available, of all corporate officers, owners and partners, and all federal employer identification numbers, if available, held by the applicant or any business entity that he currently qualifies or is applying to qualify; and UCC filings. A “nationally recognized credit agency” shall mean a credit agency that: Obtains credit information both within and outside the State of Florida; Validates, updates, and maintains the accuracy of credit information obtained; and Obtains credit reports from at least two (2) credit bureaus. The statutory requirement of a credit report focuses upon an individual's creditworthiness, based on his or her use or abuse of credit and payment history. The closest that these statutes come to specifying net worth as a criterion of certification are the requirements of "financial. . . responsib[ility]" and "the minimum financial stability necessary to avoid the problem of financial mismanagement or misconduct," which is the cause of about 70 percent of all disciplinary proceedings against contractors. However, these statutory references guide Respondent in the authorized use of the credit report, which does not warrant the imposition of a net-worth requirement. First, the credit report lacks net-worth information. Second, the credit report presents a subject's financial history--most of which is of no use in establishing the subject's present net worth. In contrast to these provisions in Section 489.115(5)(b) and (6), Florida Statutes, Section 489.1195(1)(d), Florida Statutes, expressly authorizes Respondent to adopt rules imposing "net worth" and "cash” requirements on individuals seeking to qualify as financially responsible officers (FROs) for construction businesses. The Legislature clearly evidenced its ability to require net worth as a condition to certification as an FRO, which are not involved in this case, and obviously elected not to impose as onerous a requirement upon contractors themselves. Respondent determined the new net-worth requirements in the proposed rule by two means. Respondent had not changed the net-worth requirements for Division II contractors for 20 years, so Respondent estimated that the effects of inflation justified the increases set forth in the proposed rule. Respondent had raised the net-worth requirements for Division I contractors from $10,000 to $20,000 in 1998. Respondent derived the new net-worth requirements for general and building contractors based on estimates of weekly salaries for these respective contractors, not inflation. The present record contains no evidence of the rate of inflation during any relevant period of time, nor any evidence of average weekly salaries paid by Division I contractors. Nor does it appear that Respondent considered such data when determining the new net-worth requirements in the proposed rule.
Findings Of Fact The Petitioner is be Department of Professional Regulation. The Respondent is John Anthony Fantasia, at all times pertinent to these proceedings holder of certified air conditioning contractor license number CA-C024378 and qualifying agent for Fantasia Air Conditioning Refrigeration Appliance Service. Nat Weintraub contracted with Respondent on or about June 25, 1986. Under terms of the contract, Weintraub gave Respondent a $2,500 down payment to have a central air conditioning system installed in the Weintraub home. Weintraub paid Respondent an additional $1,250 when the central air conditioning unit was delivered on or about July 1, 1986. A third and final payment of $1,250 due upon completion of the work set forth in the contract has not been made by Weintraub dub to difficulties he has encountered with the Respondent concerning the quality of work on the project. While he timely commenced work shortly after delivery of the central air unit and receipt of two monetary payments from Weintraub, Respondent damaged a screen covering an opening in an overhanging eave to the Weintraub's flat roofed house. This occurred when he inserted equipment into the opening of the eave in order to place additional insulation between the roof and the ceiling of the home. Weintraub later paid someone else $52 to repair the damage. Respondent made an opening in the roof through which he placed a ventilation pipe. The opening was too large and emitted daylight around the pipe into the closet where the air conditioning unit was installed. As a result, rainwater accumulated in the closet. Weintraub later paid repair costs of $185 to another contractor to seal the opening around the pipe and replace the closet door. While repair of the opening was not a part of the written contract, the Respondent had orally promised to make this correction. A noise problem associated with overly small grillwork on the main air outlet to the air conditioning unit was fixed by another contractor at a cost of $236 to Weintraub. Dry wall covering a soffit containing duct work in the Weintraub living room was not properly finished off. Weintraub has received estimates leading him to believe correction of this deficiency will cost him approximately $510 in repairs. During installation of the air conditioning unit, closure of an existing line supplying natural gas to a heat furnace was required. Respondent "pinched off" the line in an improper manner. Further, Respondent's license does not authorize him to engage in work on heating equipment gas lines. As a result of the manner in which Respondent installed the air conditioning unit, it is extremely inconvenient if not impossible to change the unit's air filters. The job at the Weintraub home was approximately eighty percent completed when the Respondent exhausted his supply of insulation. He left the job site at that time. Later he called Weintraub demanding additional funds. Weintraub refused to pay anything additional until, in accordance with the contract terms, the job was completed. Al Childress is an enforcement officer with the Metro-Dade County Building and Zoning Department. He went to the Weintraub home on December 3, 1986. He noted the air conditioning unit had been installed without a proper permit and issued a citation by certified mail to the Respondent. The Respondent subsequently paid a $50 civil penalty for the citation. William Huckstep was a mechanical inspector for the Metro-Dade County Building and Zoning Department when he was called to the Weintraub home on or about February 3, 1987. He observed the gas line which had been altered by the Respondent. Huckstep subsequently issued a Notice of Violation by certified mail to Respondent for performing such a task without a certificate of competency as required by the Dade County Building Code. On or about April 22, 1987, Huckstep issued a second notice of violation to Respondent for failure to have called for rough and final inspections of the air conditioner installation as required by the Dade County Building Code. To date, these inspections have not been performed by local authorities or requested by the Respondent. Considerably more than 90 days have elapsed since the fall of 1986 when Respondent left the Weintraub project, prior to its completion, without notification, and without just cause to depart. The improper installation of air conditioning equipment, insulation and duct work exhibited gross negligence by the Respondent in the performance of these tasks.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered in this cause assessing the Respondent a fine of $1,500 and placing him on probation for a period of two years upon terms and conditions to be determined by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 17th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5602 The following constitutes my specific ruling on the proposed findings of fact submitted by the Petitioner. Those proposed findings consisted of 18 paragraphs. Only the first five paragraphs were numbered. Numbers 6 through 18 were applied to the remaining paragraphs by the Hearing Officer. Included in finding number 2. Included in finding number 3. Included in finding number 12. Included in finding number 13. Rejected as unnecessary. Included in part in findings numbered 3 and 4. Included in findings numbered 13 and 14. Included in findings numbered 6 and 9. Included in finding number 11. Included as to the soffit in finding number 8. The remainder is rejected. Included in finding number 11. Included in finding number 12. Included in findings numbered 11 and 15. Rejected as unnecessary. Included in findings numbered 5, 6, 7, and 8. Included in finding number 13, with the exception of Petitioner's dates which are reflective of the deadline given Respondent on the citations. Included in finding number 13. Included in finding number 14, with exception of hearsay relating to testimony of Bob Wolf which is rejected. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John Anthony Fantasia 149-10 Northeast Eighth Avenue North Miami, Florida 33161 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 =================================================================
