Findings Of Fact Mr. Richard Hughes, investigator for the Department, received approximately twelve complaints from various citizens in the Broward County area based on alleged faulty workmanship by the Petitioner. (See State's Composite Exhibit No. 2.) Customer invoice receipts reveal that Petitioner used State Registration No. 2739 on all customer invoice receipts. Evidence reveals further that Petitioner was at one time, the President of King Television, Inc., which was assigned State Registration No. 2739, but that registration expired some time during 1974. William C. Kimberl, Jr. the Division's Director, by sworn affidavit dated December 7, 1976, stated that he, as custodian of the records for the Bureau of Electronic Repair Dealer Registrations, made a search of such records and found no record that Petitioner's business, which is located at 1107 N.W. 15th Place in Ft. Lauderdale, Florida, was registered. See State's Exhibit No. 1. During August of 1976, Petitioner was charged with operating a business without a registration and for obtaining property in return for worthless checks and that he pleaded nolo contendre to the charge of operating a business without a registration and adjudication was withheld on the charges of obtaining property in return for worthless checks. Petitioner was placed on probation for eleven months. Additionally, the court required that Petitioner check all TV sets involving the complaints which had been received by the state agent (Mr. Hughes) and repair them to the customers' satisfaction. Thereafter and subsequent to repair, Petitioner was to receive a signed invoice from all disgruntled customers stating in essence that they were satisfied with the TV set as repaired. As to those complainants who refused to sign such an invoice, Petitioner was required to contact Mr. Hughes who would in turn independently check the set to determine whether or not it was operating properly and that, if such was the case, Petitioner would not be required to make further repairs to the set. With the exception of approximately two complainants, it suffices to say that Petitioner complied with the court's ruling regarding the repair of the TV sets. One complainant, Mrs. George Pollack of Hallendale, testified that she had made repeated calls to Petitioner in an effort to obtain her remote control selector to no avail. Petitioner testified credibly that he had ordered the part to repair the remote control selector from the manufacturer and that as soon as such parts were received, he would repair and return the selector to Mrs. Pollack. Shirley Herbstman of Hollywood, contacted Petitioner during April, 1976, to have her set repaired. She paid approximately $102.00 to have tubes, transformer, and a remote control repaired, and when the set was returned, she contends that the same problem existed. Thereafter she called Ace TV and a yoke was replaced at her home for a cost of approximately $75.00. See Respondent's Exhibits No. 3 and No. 4. The Petitioner's Defense. Petitioner testified that he received assurances from investigator Hughes that it was proper for him to operate under his old registration number i.e., No. 2739 until such time as he obtained his new registration. According to the evidence, it appears that this assurance was given during late 1975 at which time Hughes furnished Petitioner with an application form and instructed him to immediately file it with the Division. Evidence also reveals that Petitioner did not submit his application to the Department until August 9, 1976. By letter dated August 10, 1976, the Bureau Chief of Electronic Repair Dealer Registration advised Petitioner that his application for registration was being returned because of certain omissions on his application including his failure to tender the $30 application fee, the sales tax permit number or a receipt for such payment and a certification from the Secretary of State's office that the corporation was in good standing. Thereafter by letter dated October 15, 1976, Petitioner was further advised that after a review of all available facts known to the Division, his registration was not being validated pursuant to Chapter 468.155 and 468.159(1)(a), Florida Statutes. Petitioner testified further that he had not operated as a TV repairman other than to repairs sets per the terms of a court order and that subsequent to August, 1976, he had not, in any manner, held himself out as a registered repairman. He testified that once his license was rejected, he had all phones disconnected and that he was led to believe that his son would take over the business. As events developed, however, his son left the state.
Recommendation Based on the above findings of fact and conclusions of law I recommend that the allegation that the Petitioner violated his probationary status by operating without being registered be dismissed. Based on the remaining violations as found above, I recommend that the Respondent's action in denying Petitioner his registration certificate as an electronic service dealer be sustained. DONE and ENTERED this 18th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Staff Attorney Department of Business Regulations Division of General Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Gerald H. Birnesser, Esquire 2119 Hollywood Boulevard Hollywood, Florida 33020
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In response to an invitation to bid issued by the Department of Corrections (Department) for the construction of Phase II, Part I of the Tomoka Correctional Institution in Volusia County, the petitioner Ajax Construction Company, Inc. (Ajax) and the respondent Dyson & Company (Dyson), along with others, submitted bid proposals on December 22, 1981. The bidders were instructed to submit a base bid for the construction of Building 14 and an alternate bid for the construction of Building 15. The ultimate scope of the project was dependent upon funding available to the Department for the construction of prison facilities. The contract terms and conditions governing the preparation and delivery of bids are contained in a Project Manual prepared jointly by the project architects, KBJ Architects, Inc., and the Department. (Petitioner's Exhibit 6) Each bidder is required to prequalify (Exhibit 6, Section B-2), and In order that the owner may be assured only qualified and competent subcontractors will be employed on the project, each bidder shall submit with his Proposal a list of the subcontractors who will perform the work for each Division of the Specifications as indicated by the `List of Subcontractors' form contained in these specifications. The bidder shall have determined to his own complete satisfaction that a listed sub- contractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. Only one subcontractor shall be listed for each phase of the work. * * * The Owner reserves the right to reject the bid of any contractor who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if such certification or registration is required for the trade by Florida Laws. After public opening and reading of proposals, the listing of subcontractors submitted by the apparent low bidder will be read publicly. The listings of other bidders will be returned. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. (Exhibit 6, Section B-15) The form provided for the List of Subcontractors indicates that the list is "attached to, and is an integral part of the bid submitted by" the bidder and requires the bidder to list the "names of the subcontractors who will perform the phases of the work indicated." Among the six areas of work indicated are security hardware" and "security equipment." (Exhibit 6, Section D) A listing of a subcontractor was not required for the "locking system control console." The bidding documents furnished the bidder for his use in preparing a bid contain technical architectural and structural specifications for various divisions of the project. Very technical requirements are set forth for security hardware (Division 875), security equipment (Division 1188) and the locking systems control console (Division 1190). The specifications for the security hardware division in a section entitled "prequalification of manufacturer," require that all bidding manufacturers of security hardware, with the exception of those contained in a listing of approved manufacturers, must submit a request for approval by the architect fifteen days prior to bid opening. If the manufacturer is approved, an addendum to the approved listing of manufacturers is to be issued to all bidding general contractors of record. The specifications for security hardware further provide that the locking devices "shall be installed either directly by or under the direct supervisory control of the manufacturer of the device," and that Manufacturer's representative shall visit project three (3) times; (1) when hardware is delivered (to consult with Contractor's representative regarding installation), (2) during installation (to check on proper installation), and (3) when installation is complete (to check on proper functioning and instruct Owner's representative in operation). (Exhibit 6, Division 875, Section 1.6) The specifications for security equipment (Division 1188) contain the following general requirement: 1.1 Qualifications of Suppliers: Five (5) years experience fabricating and installing security and detention equipment of the types specified and a reputation for prompt work and service. Acceptable: Folger-Adams; Sesco; Roanoke Iron and Bridge. The locking systems control console division (Division 1190) specifications contain an identical requirement for the "qualification of supplier," but do not include a listing of approved suppliers. The areas of security hardware, equipment and controls are interfaced and function as a related system. Coordination between the manufacturer and the installer of this equipment is important, as the existence of a fragmenting of responsibility in this area has created past problems for the Department and project architect. The bids for the subject project were opened on December 22, 1981. Ajax submitted a proposal containing a base bid of $1,852,342 for Building 14 and an alternate bid of $1,744,951 for Building 15. Dyson submitted a proposal of $1,861,590 as a base bid and $1,729,610 as an alternate bid. Both submitted with their bids the list of subcontractors required by Sections B-15 and D of the specifications. The names of the subcontractors provided by Ajax and by Dyson were identical except with regard to the areas of security hardware, security equipment and lathing and stucco. In those three areas, Dyson named itself as subcontractor and Ajax named SESCO, a division of Norment Industries, as a subcontractor for security hardware and security equipment and another entity for lathing and stucco. (Petitioner's Exhibit 7 and Dyson's Exhibit 1). While SESCO was identified as an acceptable qualified supplier in the bid specifications regarding security equipment (Division 1188) neither SESCO nor Norment Industries (of which SESCO is a division) was listed as an approved, qualified manufacturer in the specifications relating to security hardware (Division 875). Believing that a contract was to be awarded for Building 14 (the base bid) only due to the availability of funds, the project architect's representative, Al Petty, determined that Ajax appeared to be the lowest bidder on the base bid. The subcontractors' list of Ajax was accordingly opened and read publicly. On December 28, 1981, Mr. Petty certified the bid tabulation and recommended a contract award to Ajax. After being informed by the Department, in early January, 1982, that funds had been secured for the construction of Buildings 14 and 15, Mr. Petty telephoned the Department architect's secretary and requested that she open and publish to him Dyson's list of subcontractors. Upon learning that Dyson had listed itself as the subcontractor in three areas, Mr. Petty spoke with Mr. McClane, the Department's architect, and expressed his view that Dyson's failure to list subcontractors was a material omission which failed to meet bid requirements and that Dyson's bid should be disqualified. Subsequent to the opening of Dyson's list of subcontractors, there ensued a series of telephone conversations between Mr. Petty and Mr. Allah Rakha, the authorized representative of Dyson, and between Mr. McClane and Mr. Rakha. A review of the testimony of these three witnesses regarding their conversations concerning the listing of subcontractors for the areas of security hardware and security equipment leads to the finding that Dyson intended to purchase the hardware and equipment from a supplier or manufacturer and to personally perform a majority of the actual work of installing these materials. This finding is also substantiated by a review of the scope sheet or bid proposals submitted to Dyson by various suppliers and manufacturers. In some instances, the manufacturers and suppliers intended to perform or furnish no labor and installation work. In the case of the bid proposals submitted by SESCO prior to the bid opening date of December 22, 1981, nine of the seventeen categories of equipment were to be furnished only, and not installed by SESCO. A breakdown of the labor costs as between Dyson and SESCO illustrates that Dyson intended to furnish $21,496 worth of the installation work while SESCO would provide only $5,940 worth of the installation work. The only difference between SESCO's (Norment Industries) bids submitted prior to and after the bid opening was a deletion or deduction for the price of control wiring due to an overlap or duplication of that item in the electrical subcontractor sections of the specifications. Subsequent to his telephone conversations with Mr. McClane and Mr. Petty, Mr. Rakha sent a letter dated January 12, 1982, to the Department stating: Following is the list of suppliers and installers of security hardware and security equipment. Security Hardware by Brinks and Folger-Adams, installation by Normant [sic] Industries. Security Equipment by Folger- Adams, installation by Normant [sic] Industries. Dyson & Company has had experience in providing labor and installation for security hardware and equipment in other prison facilities and detention centers in Florida and Alabama. These include the Escambia County jail in Pensacola, a receiving and classification center in Wetumpka, Alabama, a maximum security prison in Atmore, Alabama, and a brig at the Naval Air Station in Pensacola. Within the construction industry and trade, the terms "subcontractor," "manufacturer" and "supplier" have separate, distinct and individual meanings and definitions. Generally speaking, a manufacturer builds or constructs the material, a supplier furnishes or delivers that material to another person or entity and a subcontractor furnishes and installs the material for the contractor. The definition of a "subcontractor" contained in the American Institute of Architects Document A201, a part of the bidding document in this case, reads in part as follows: 5.1.1 A Subcontractor is a person or organization who has a direct contract with the Contractor to perform any of the Work at the site.
Recommendation Based upon the foregoing findings of fact and conclusions of law recited herein, it is RECOMMENDED that the construction contract for the Tomoka Correctional Institution, Phase II, Part I, Project No. DC-8130, be awarded to Dyson & Company and that the petition of Ajax Construction Company be DISMISSED. Respectfully submitted and entered this 11th day of June, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1982.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the application of Petitioner for registration as an electronic repair dealer should be denied.
Findings Of Fact Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact: Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not. Arthur Resnick had been asked to disclose on his application for registration whether he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania. The Hearing Officer concluded that: The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.
Recommendation Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent. DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Alexander M. Siegel, Esquire 1303 North State Road 7 Margate, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF GENERAL REGULATION DEPARTMENT OF BUSINESS REGULATION JACK RESNICK and SMART SERVICE, Petitioner, vs. CASE NO. 78-1687 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION, Respondent. /
The Issue Whether TestCorp's bid was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp's offer of a 12-month cost-free warranty was contingent on DHSMV's entering into a maintenance and service contract with TestCorp? Whether TestCorp failed to offer a 12-month warranty at no charge? Whether DHSMV impermissibly proposes to consider the cost of maintenance in awarding the bid? Whether TestCorp's failure to register to do business in Florida until June 20, 1986 precludes an award to TestCorp? Whether TestCorp's failure to offer all right, title and interest in and to its system renders its bid unresponsive? Whether TestCorp failed to provide sufficient technical information to show that its system would meet specifications? Whether TestCorp failed to furnish the names of three customers with like or similar equipment? Whether TestCorp failed clearly and concisely to describe variances between its bid and the specifications set out in the ITB? Whether Juno's proposal has bilingual capability consistent with clearly visible images even on handicap display units?
Findings Of Fact ITB No. 2887-85 (Rebid) is in evidence as Joint Exhibit No. 1. The parties stipulated that pages 26 through 34 of Joint Exhibit No. 3, which replace two of the original ITB pages and consist otherwise of bidders' questions about the ITB and DHSMV's answers, also constitute part of the invitation to bid, whose purpose "is to secure Automated Driver Testing Equipment for the Florida Division of Driver Licenses." Joint Exhibit No. 1, p. 2. ITB No. 2887-85 (Rebid) calls for ten testing machines to be tied to an examiner's console in each of five systems, and specifies that the testing systems have both "English and foreign language capability," Joint Exhibit No. 1, p. 13, 3.3.02, that they "function in such a manner that controls and operations for both examiner and examinee are minimal," Joint Exhibit No. 1, p. 14, 3.4, and that they be "capable of presenting a visual question test" to all examinees, including handicapped (seated) examinees. With each system, ITB No. 2887-85 (Rebid) as modified in response to questions from TTSS, Inc., calls for 80 questions, consisting of "30 operator questions, 30 chauffeur questions, and 20 road signs." Joint Exhibit No. 3, p. DHSMV would administer 40-question tests to applicants for operator's licenses and to applicants for chauffeur's licenses, each consisting of "20 written questions and 20 road signs." Joint Exhibit No. 3, p. 34. The specifications also call for "the highest quality professional duplicating film" and specify that "[n]o visible deterioration . . . be noticeable in the quality of the projected image during the warranty period." Joint Exhibit No. 1, p. 23, 4.6.2(c). ITB No. 2887-85 (Rebid) calls for "[c]omplete product information, including technical and descriptive literature sufficiently detailed to substantiate [that] the system offered meet[s] or exceed[s] the specifications." Joint Exhibit No 1, p. 3. ITB No. 2887-85 (Rebid) requires that each bidder use the "bid forms furnished by this Department," Joint Exhibit No. 1, p. 5, 2.21A, see Joint Exhibit No. 1, p. 1, which both TestCorp and Juno did. While warning that "[b]ids containing terms and conditions conflicting with those contained in this Invitation to Bid shall be rejected," Joint Exhibit No. 1, p. 6, 2.24, the ITB also reserves to DHSMV the right to waive "minor deviations or exceptions . . . defined as those that have no adverse effect upon the State's interest and would not affect the amount of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders." Joint Exhibit No. 1, p. 5, 2.18. In a related provision, the ITB requires that any nonconformity "be clearly and concisely described with a request for variance . . . accompanied by a full explanation as to the advantages and/or disadvantages." Joint Exhibit No. 1, p. 5, 2.19. Bids Submitted DHSMV received four bids in response to ITB No. 2887-85 (Rebid). Low at $94,470.00 was Computer Specialties, Inc., but DHSMV deemed this bid unresponsive and Computer Specialties, Inc., filed no notice of protest. Second low was Juno's alternate bid of $237,795.00, which tracked the bid DHSMV now proposes to accept, except that the alternate bid did not provide for a performance bond. DHSMV rejected Juno's alternate bid as unresponsive, and Juno has not questioned this determination. Third low was TestCorp's bid at $242,000, and Juno's bid was high at $246,795.00. Juno's Bid The parties stipulated that the lack of bilingual capability would be material, but did not agree that Juno's system was deficient in that respect (T.73). Juno's bid states that each display unit "shall utilize an unnotified Kodak Ektagraphic Slide Projector Model E-2 . . . [and] shall be capable of displaying up to eighty (80) separate question slides." Joint Exhibit No. 3, p. The sample slide representations Juno furnished with its bid depicted traffic scenes and accompanying questions in English only. Joint Exhibit No. 3, pp. 111, 111a. Foreign language capability would require either separate slides with foreign language questions or the same slides with questions in English as well as in foreign language(s). In the event of separate slides, one machine of the ten called for (in each of the five systems specified) could be dedicated to each foreign language in which the tests were to be administered, or foreign language slide trays could be substituted as needed. TestCorp's Bid Set out as a general condition in ITB No. 2887-85 (Rebid) was the following: SERVICE AND WARRANTY: Unless otherwise specified, the bidder shall define any warranty service and replacements that will be provided during and subsequent to this contract. Bidders must explain on an attached sheet to what extent warranty and service facilities are provided. Joint Exhibit No. 1. In the event of a conflict between a general condition and a specification, the ITB states that the specification is to take precedence. Among the specifications included in ITB No. 2887-85 (Rebid) were these: 2.1 Bidder must submit copy of maintenance and service contract and costs with bid. (Informa- tion on maintenance during warranty and after warranty expires). Joint Exhibit No. 1, p. 4 2.27.2 If maintenance of the equipment is to be the responsibility of the State, training necessary to properly maintain the equipment must also be provided. Joint Exhibit No. 3, p.27 2.30 Warranty - Service - Mai[n]tenance Parts Replacement: Parts determined to be defective must be repaired or replaced at no charge to this Department for a period of twelve (12) months. Labor must be furnished (normal working hours) at no charge to this Department for a period of twelve (12) months. EXCEPTION: It is understood that warranty does not include consumable parts/ supplies. Joint Exhibit No. 3, p.27. 2.31. If a defect in the equipment occurs because of obvious misuse or after expiration of the warranty, vendor or his authorized service representative will make repairs promptly for a period of five years from date of acceptance at a reasonable cost to the purchaser. Joint Exhibit No. 3, p. 28. Maintenance Bidder shall submit a maintenance plan with his bid response. Maintenance should be outlined in a schedule or table showing how and when it is to be performed. If the State must perform its own maintenance, this must be specified. Any replacement parts required to be installed under normal main- tenance procedures must be listed, along with cost, method of delivery, and how installation is to be performed. Bid Award - Special Conditions Cost of maintenance, if applicable, will not considered in award of bid . . . Joint Exhibit No. 3, p. 28. Finally, the specifications provided that the "complete system cost" included a year's spare parts and required each bidder to attach "a list of all equipment, service and spare parts included in his bid for each location." Joint Exhibit No. 1, p. 25. Maintenance and Warranty Tied 11. With reference to specification 2.27.2, TestCorp's bid states, "Maintenance will be the responsibility of TestCorp." Joint Exhibit No. 2, p. Otherwise TestCorp's bid responds to maintenance and service specifications by reference to and inclusion of a form "TestCorp Warranty and PerTest Maintenance Agreement." Joint Exhibit No. 2, pp. 34 through 38. On TestCorp's bid sheet is written, "PLEASE SEE REQUIRED MAINTENANCE AGREEMENT ATTACHED." Joint Exhibit No. 2, p. 25. With reference to specification 2.12, TestCorp's bid states, "Warranty and PerTest Maintenance contract is enclosed." Joint Exhibit No. 2, p. 31. Among the provisions of the form contract are the following: This agreement shall be in effect for 5 years from the date of purchase of the system. Service as described below will be provided at no charge during the "Warranty Period," which is the first year following installation. Joint Exhibit No. 2, p. 34. There is no charge for service under this agreement during the 12 month Warranty Period. During the 48-month pre-test maintenance period . . . you will be charged at the rate of $0.48 per test. Joint Exhibit No. 2, p. 35. Variance from the terms and conditions of this agreement in any order or other written notification from you will be of no effect. Joint Exhibit No. 2, p. 38. DHSMV originally determined TestCorp's bid to be responsive to ITB No. 2887-85 (Rebid) and proposed to award to TestCorp on June 23, 1986. Another Look During the pendency of Juno's ensuing protest, DHSMV staff changed their minds. In their prehearing stipulation, the parties set out the following sequence: On July 14, 1986, Merelyn Grubbs, Chief of the Bureau of General Services of the Department, placed a phone call to Ken Muir, Vice President of Sales and Marketing for TestCorp, in order to clarify questions that had arisen with regard to TestCorp's bid. As a result of the July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get TestCorp's 12-month cost-free warranty, the Department would be required to sign the maintenance and service agreement with TestCorp. As a result of tube July 14 telephone conversation and reexamination of TestCrop's bid, the Department concluded that in order to get the TestCorp equipment at the bid price, the Department would be required to sign the maintenance and service agreement with TestCorp. On July 15, 1986, Ken Muir called Merelyn Grubbs to discuss TestCorp's position with regard to the maintenance and service contract. On July 15, 1986, Merelyn Grubbs sent a letter informing TestCorp that its bid had been rejected as nonresponsive because the "bid for equipment was predicated upon the Department agreeing to enter into the four- year maintenance contract." On July 15, 1986, C. W. Keith, Director of the Division of Driver Licenses, sent a memorandum to Fred O. Dickinson, III, Deputy Executive Director of the Department, which said, in relevant part: In view of the recent discovery of the main- tenance contract on TestCorp's bid which would in effect cost our Department approximately $300,000 for a four year period, which we obviously cannot afford and was not listed in the bid, we recommend that TestCorp be notified that they are nonresponsive to the bid and that they be disqualified. Ms. Grubbs verified on July 14 with TestCorp [sic] that their bid was invalid unless we also accepted their maintenance contract at a price of 49 cents per examination administered. ([sic] and 49 in original) In short, DHSMV reconsidered, decided that TestCorp's bid was unresponsive, and proposed to award to Juno, on that account. This is DHSMV's current position. The form contract TestCorp attached to its bid, entitled "TestCorp Warranty and Per-Test Maintenance Agreement," covers five years. After the initial year in which there were to be no maintenance charges, the contract specifies maintenance charges "at a rate of $0.48 per test . . . based on the estimated number of tests given in Addenda #1 to this bid, ITB-DHSMV-2887-85 (Rebid)." Joint Exhibit No. 2, p. 35. The estimated number of tests to which the form contract refers amounted to 950 daily in January of 1986. Joint Exhibit No. 3, p. 33. For years two through five, TestCorp's annual revenues from DHSMV under the maintenance contract can be calculated at $114,000, by multiplying 950 times $0.48 times 250 working days (approximate). If January is an unusually busy month or if the testing centers are not open fully 250 days a year, the figure would be less. Registration At the time TestCorp submitted its bid in response to ITB No. 2887-85 (Rebid), on May 16, 1986, it had not registered with Florida's Department of State as a foreign corporation doing business in Florida. Among the special conditions set out in ITB No. 2887-85 (Rebid) was the following. 2.1 All corporations seeking to do business with the State shall, at the time of submitting a bid in response hereto, be on file with the Department of State in accordance with the Provisions of Chapter 607, Florida Statutes; Chapter 607, Florida Statutes; TestCorp registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes (1985) on June 20, 1986, three days before the original tabulation on the rebid was posted. When TestCorp originally applied for registration is not clear from the record. Purchase Contemplated The ITB No 2887-85 (Rebid) announces DHSMV's intention to purchase five complete systems, and defined purchase as "acquisition of all rights, titles and interest in the systems in exchange for payment . . . ." Joint Exhibit No. 1, p. 2, 1.3. With reference to the bidder's use of any patented or copyrighted "design, device or materials" the specifications provide that "bid prices shall include all royalties . . . . " Joint Exhibit No. 1, p. 12. TestCorp conditioned its bid by stating The Department will acquire all rights, titles and interest in the systems purchased save and except the department shall not sell, lease, transfer, duplicate or copy the TestCorp hardware configuration, software, or video disc for any purpose whatsoever. In using this language, the drafter of TestCorp's bid referred by section number, 1.3, to that part of the ITB calling far sale outright. Product Information TestCorp's bid represents that all components of the systems it offers "are of standard manufacture." Joint Exhibit No. 2, p. 31. It proposes touch screens in lieu of keyboards. Included in its bid are technical specifications for the touch screens, as well as for the Hitachi video disc player, the multi- user host adapter and the monitor components. Technical specifications for the cable, the Roland printer, the TestCorp housing and the IBM-compatible microcomputer components are not included in the bid, which describes the software and video disc components only as "proprietary." A narrative description of how the system works is also included with TestCorp's bid, however, and the bid recites that the software for the examiner's station "controls all Testing/Information stations and saves all the answers given during each test." Joint Exhibit No. 2, p 29. TestCorp's substitution of touch screens for keyboards, while not framed as a request for variance, was clearly and concisely described. An explanation of the perceived advantages of touch screens accompanied the description. Right and Wrong ITB No. 2887-85 (Rebid) calls for "correct answer feedback," Joint Exhibit No. 1, p. 13, 3.3.05, which the specifications describe in some detail, after first making clear that "wording and procedures . . . serve only as a guideline [and that d]ifferent procedures, wording or indications will be acceptable." Joint Exhibit No. 1, p. 16. "WHEN SURE PUSH SCORE" should be an indicator and shall come on after an answer choice has been made to advise the applicant to depress the "SCORE" selection device. "RIGHT" [or] "WRONG" will appear after the "SCORE" selection device has been depressed and will indicate the correctness of the applicant's answer choice. Joint Exhibit No. 1, pp. 16 and 17, 3.9.5 3. 9.5 3.9.7 The final answer selection device, when activated by the applicant, shall cause the selected answer to be recorded and the correct or incorrect indicator to be activated. It shall not be possible to activate the final answer selection device until an answer selection has been made. Joint Exhibit No. 1. p. TestCorp's bid, which states, "The test can be presented as specified in this proposal," Joint Exhibit No. 2, p. 29, indicates that the "TestCorp method uses an answer until correct procedure for administering tests." Joint Exhibit No. 2, p. 30. "The computer does the scoring . . . . Examinees know the correct answer to each question at the end of the test." Joint Exhibit No. 2, p. 30. TestCorp's bid also includes the following description: When the test begins, the software chooses a question at random and presents it to the examinee. The examinee touches a key to register the answer of his choice. If it is wrong, the computer tells him to try again until he gets the right answer . . . Joint Exhibit No. 2, p. 71. Apparently TestCorp's system would cause a "Try Again" panel rather than a "Wrong" panel to light up, but this difference is not material, as Section 3.9.5 explicitly states. Cabinetry ITB No. 2887-85 (Rebid) requires that the cabinet for the "handicapped display unit . . . be so constructed as to permit an applicant for a driver's license test to remain seated while taking the test," Joint Exhibit No. 1, p. 15, 3.8.1; and requires that the examiner's console cabinet "be a small desk top unit with a sloping panel for ease of operation and readout viewing." Joint Exhibit No. 1, p. 19, 8.14. TestCorp's bid does not explicitly address the cabinetry either for the handicapped display unit or for the examiner's station. TestCorp's bid does say, "Any testing station can be used as an alternate Examiner's Station." Joint Exhibit No. 2, p. 27. TestCorp's bid also states, however that the "Examiner's Station consist[s] of the same components [as make up an examinee's station, viz., housing, cables, a microcomputer, a monitor, a touchscreen and a video disc player] with the exception of the video player, which is replaced by a printer," Joint Exhibit No. 2, p. 29, and that the "Examiner's Console also includes the local area network hardware that controls the Testing/Information Stations." Joint Exhibit No. 2, p. 29. The latter statements raise some question about the asserted interchangeability. In context, the claims that the different types of stations are similar or interchangeable must relate to their technical construction, and not to the cabinets in which the working components would be housed. References ITB No. 2887-85 (Rebid) calls for a "list of three (3) customers having equipment like or similar to that being bid." Joint Exhibit No. 1, p 4, 2.17. TestCorp supplied the names of four customers, for only two of whom, however, TestCorp had installed automated driver testing systems. TestCorp furnished the other two customers hardware identical to that called for by ITB No. 2887-85 (Rebid), albeit "not all tied together to a command console or master console as" (T.63) called for by ITB No. 2887-85 (Rebid). As for the software TestCorp furnished these other two customers, "[t]here are some differences in terms of commands, but the program, software program, is not a dissimilar program" (T. 64) even though these customers use the systems for purposes other than testing drivers, purposes requiring the input of different data.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. Respondent does business under the name South Florida Construction Group. At no time relevant to this proceeding has Respondent or his business entity been registered or certified to perform electrical contracting or any other contracting in the State of Florida. Respondent holds only an occupational license from the City of North Miami. The residence owned by the homeowners (the subject property) sustained roof damage as a result of Hurricane Wilma in October 2005. The homeowners planned to replace their damaged roof after their insurance claim had been processed. In the interim, temporary repairs were made to the roof by a roofing contractor the homeowners located through a local Home Depot, Inc., store. This roofing contractor was identified only as the Home Depot roofing contractor. The homeowners were dissatisfied with the work of the Home Depot roofing contractor. In early August 2006, Mrs. Ugokwe mentioned at a beauty salon that the Home Depot roofing contractor had failed to prevent her roof from leaking. Shortly thereafter, Respondent learned of the homeowners’ dissatisfaction with the Home Depot roofing contractor. On August 9, 2006, Respondent visited the subject property and told the homeowners that he was a general contractor. Respondent gave them his business card that contained Respondent’s name, address, telephone number, and fax number. In addition, the business card contained the name “South Florida Construction Group” underneath which were the words “State Certified General Contractors” and the following license number “CGC 1510133.” The business card advertised the following services: “Home Improvement & Repairs, New Building Construction, Residential & Commercial Pools, Asphalt Paving & Sealcoating [sic], Site Development & Drainage, and Notary Public Service.” The homeowners believed Respondent to be a licensed general contractor. Respondent and the homeowners discussed Respondent performing work on the damaged roof, including placing blue tarp on the roof (the tarp work) to prevent further leaks until the re-roofing could be completed. They also discussed the subsequent re-roofing of the property. Respondent estimated that the re-roofing would be between $30,000.00 and $33,000.00. After inspecting the subject property, Respondent told the homeowners, among other things, that an electrical connection to a pump on their drain field needed to be repaired. Respondent testified that the electrical connection had been damaged when he backed his truck up while attempting to remove some debris from the subject property. At the meeting on August 9, 2006, Respondent and the homeowners agreed that Respondent would perform the tarp work. On August 11, 2006, the homeowners paid Respondent a down- payment of $50.00 cash for the tarp work. On August 12, 2006, Respondent’s crew completed the tarp work. On August 13, 2006, the homeowners paid Respondent the sum of $659.28 for the balance of the materials and labor for the tarp work. The total amount paid for the tarp work was $709.28. On August 13, 2006, after he received payment for the tarp work, Respondent produced a building permit application, which he had Mrs. Ogokwe sign in blank. Respondent explained that he had not finished his proposal for the complete re- roofing and that he wanted her to execute a blank permit to expedite the permitting process. On August 14, 2006, Respondent presented a signed permit application to the building department of Miami-Dade County, Florida, pertaining to the re-roofing of the subject property. Ms. Ugowke’s signature had been notarized. When Respondent presented the permit application to the building department, the contractor’s name was listed as F L Construction, Inc. The qualifying contractor’s name was listed as being Charles Lennox with the contracting licensing number CGC 1510133. That was the same number listed on Respondent’s business card. The value of the work was listed as being $6,200.00. On the morning of August 15, 2006, Respondent returned to the subject property with a person Respondent told the homeowners was an electrician. Mrs. Ugokwe asked Respondent how much the repair of the electrical connection would cost before the purported electrician started to work. Respondent told her not to worry since he would add the cost of the electrical work to the cost of re-roofing the subject property. The electrical repair had been made by the time Mrs. Ugokwe returned to the subject property after work that evening. On August 16, 2006, Respondent informed the homeowners that he had secured a building permit and that he had his proposal for the re-roofing. On August 17, 2006, Respondent delivered a package to the homeowners that contained his proposal and the building permit. Respondent’s proposal for the re-roofing was in the total amount of $39,672.92. The homeowners considered this proposal to be unacceptable. On the building permit Respondent gave to the homeowners, the name of the contractor (F L Construction, Inc.) had been covered with white-out and the name South Florida Construction Group had been inserted as the name of the contractor. The building permit was not otherwise altered. On August 19, 2006, Respondent presented the homeowners with a revised contract for the total price of $33,000.00. Mrs. Ugowke confronted Respondent about the discrepancy between the revised proposal ($33,000.00) and the value of the work reflected on the building permit ($6,200.00). Mrs. Ugowke also confronted Respondent about the white-out on the building permit. The homeowners refused to sign the second proposal. Respondent became angry and demanded immediate payment of $750.00 for the repair of the drain field electrical connection. Mrs. Ugokwe counter-offered to pay $150.00, a sum she believed to be fair after her husband priced the cost of the materials used in the repair. Respondent refused to take the counter-offer. By invoices dated August 22 and September 4, 2006, Respondent billed the homeowners for work that included the electrical work. Each invoice was on South Florida Construction Group’s form invoice. Each invoice reflected the general contractor’s license number CGC 1510133, which is Mr. Lennox’s number. Both invoices included a charge of $1,209.28 for installation of “new blue top, nails and labor” although the homeowners had already paid Respondent $709.28 for the same job. The homeowners refused to pay the invoices. Respondent sued them and placed a lien on the subject property in the amount of $3,839.82. In his claim of lien, Respondent affirmed under oath that he furnished the following services to the homeowners: re-roofing, electrical, and repairs. Respondent’s civil suit was dismissed on the merits. Even after that action, Respondent refused the homeowners’ request to remove the lien from their property. On September 15, 2006, Mr. Lennox sent all his sub- contractors a letter asking them to immediately stop using his contractor license number without his express permission. Respondent signed the bottom of the letter acknowledging receipt thereof, even though Respondent was not a sub-contractor. Respondent’s business primarily consists of finding customers for contractors. He deals with a customer, but has a contractor, such as Mr. Lennox, perform the work Respondent’s company has contracted to do. Had the contract with the homeowners in this proceeding gone through, Respondent intended to obtain payment from them, by having F L Construction, Inc., do the actual work. Petitioner has incurred investigative costs in the amount of $277.52. This figure excludes any costs associated with attorney’s time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order that finds Respondent guilty of having violated Section 489.531(1), Florida Statutes (2006). It is further RECOMMENDED that Respondent impose an administrative fine against Respondent in the amount of $1,000.00 and assess investigative costs against Respondent in the amount of $277.52. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 4th day of April, 2008.
Findings Of Fact The Petitioner, Tony Meehan's Auto Repair, Inc., is a Florida corporation doing business as Burnie's Auto Service. Essentially, it is the family business of a man and woman who are husband and wife, Anthony and Cheryl Meehan. Before moving to Florida to begin doing business as Burnie's Auto Service, the Meehans lived in New Jersey. In New Jersey, Anthony Meehan worked as an auto mechanic for approximately 15 years. He is an ASE-certified master mechanic and also holds several other auto mechanic and repair competency certifications. Prior to leaving New Jersey, he was half owner of a small auto repair business. He and his partner did all of the work in the two-bay shop. Over the years, he built up a $15,000 equity in the business. In addition, he had an auto repair manual worth about $30, which he planned to contribute to the new business, and he had his own personal tool box worth about $10,000 to $15,000, which he planned to use in connection with the operation of the business. Cheryl Meehan was not in the auto repair business in New Jersey. She worked for several different employers in an office administrator capacity. In her most responsible position, she essentially reported to a business executive daily and received daily assignments. During her employment, the company grew. Cheryl was exposed to, and gained valuable experience, in several areas of bookkeeping, accounting, banking, finance and personnel matters. Burnie's Auto Service was a relatively large ongoing auto repair business in Tampa, Florida. It had five employees and 14 work bays. In approximately September, 1989, the Meehans negotiated to buy the business for $275,000, $50,000 down and the balance amortized over a period of years at ten percent interest. The seller took back a purchase money mortgage on the business property to secure payment of the balance. Both of the Meehans are liable, jointly and severally, on the note and mortgage to the seller. The Meehans used the $15,000 Tony got for the sale of his interest in his New Jersey auto repair business as part of the down payment. In addition, they used a certificate of deposit in the amount of approximately $30,000. The CD had been obtained by use of funds that had been paid to Cheryl before their marriage as a result of a personal injury lawsuit. It is not clear whether the CD was held solely in Cheryl's name or in the names of both of the Meehans. In addition, $10,000 from the sale of Cheryl's automobile also went towards the purchase of the business. It was not clear from the evidence whether the automobile was titled in the name of Cheryl only, or in the name of both of the Meehans. Nor is it clear whether the automobile was purchased by Cheryl before the marriage. The purchase of the business was to close in November, 1989, but the closing was postponed to January, 1990. The Meehans incorporated Tony Meehan's Auto Repair, Inc., as a Florida corporation on or about December 20, 1989. The Meehans were named as the sole members of the initial board of directors of the corporation. The Meehans moved to Tampa on Christmas day, 1989. The initial meeting of the board of directors of Tony Meehan's Auto Repair, Inc., was held on December 28, 1989. At the meeting, the Meehans were confirmed as the sole members of the board of directors. Tony was named chairman of the board, and Cheryl was named secretary. 500 shares of stock were issued, all to "Anthony R. Meehan and Cheryl A. Meehan, husband and wife." In addition, Tony was made president of the corporation, and Cheryl was made secretary/treasurer. When the Meehans took over the business, they decided to keep the shop foreman, master mechanic and two auto mechanics already employed there. They decided to use suppliers Tony had used when he was in business in New Jersey. They decided to contract out towing and transmission service to companies in Land O' Lakes, Florida. These were joint decisions based in large part on Tony's expertise. Cheryl has practically no training or experience in auto mechanics or auto repairs. She has no auto mechanic certifications. She has only recently begun to learn something about auto mechanics and about how to do certain auto repairs. Hiring and firing continued to be joint decisions made by the two of them. To the extent that they were made based on an evaluation of the employee's skills in auto mechanics, they were based in large part on Tony's expertise. Since the beginning of the business, they have had to fire one employee, and they have hired two. Tony's primary role in the daily operations of the business is to generally supervise the quality and efficiency of the auto repair work. He also sometimes diagnoses (or helps diagnose) mechanical problems, directs (or helps direct) the performance of repairs, and test drives vehicles after repairs are done. In connection with these functions, he sometimes orders (or directs the ordering of) parts. Sometimes, he will estimate repair costs. Cheryl is the office administrator for the business. In this role, she handles all bookkeeping, accounting, banking, payroll and personnel matter details. She often bills jobs and operates the business cash register. She physically places orders for parts, at the direction of Tony or the employees, and pays for them. She generally will not countermand a parts order but may ask her husband or, if he is not there, the master mechanic to verify an order if she questions it. She makes sure parts get billed. As she became more familiar with the auto repair business, she began to estimate some jobs by reference to standard estimates manuals and was able to say which parts would have to be ordered for some jobs. The corporation opened a business bank account with a local bank. Both Cheryl and Tony have signature authority on the account. Cheryl writes virtually all checks on the account and does all the banking. Tony only writes a check on the account on the rare occasions when Cheryl is not available when one has to be written. Initially, the Meehans decided that Tony would be paid approximately $700 a week and that Cheryl would be paid approximately $300 to $350 a week. Tony did not have as much Social Security credit as Cheryl from their work in New Jersey, and they wanted to try to equalize their credits. Otherwise, as a practical matter, the relative size of their salaries did not matter to the Meehans. Cheryl deposited both checks into their joint personal bank account for the use of both of them, as needed. The business pays for a $200,000 whole life insurance policy on the life of Cheryl, and one on the life of Tony. It is not clear from the evidence who are the beneficiaries under those policies. The business also pays for a $2 million major medical insurance policy for Cheryl, and one for Tony. As the business continued, Cheryl assumed increasing duties and responsibilities, and Tony assumed fewer. Cheryl worked harder, and Tony worked less. Also, Cheryl's mother persuaded Cheryl that she should have a greater share of the equity in the business to reflect her greater initial financial contribution. Tony agreed. In January, 1991, additional stock in the company was issued. 135 shares went to Cheryl and 65 went to Tony. No changes were made in the constitution of the board of directors or in the officers of the corporation at that time. Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, applied to the Department 3/ for certification as a minority business enterprise on or about May 13, 1992. By letter dated September 16, 1992, the Department denied the application. The denial was based, in part, on the Department's determinations (1) that Cheryl's compensation was not commensurate with her ownership interest in the business and (2) that minorities (i.e., Cheryl) did not make up more than 50 percent of the board of directors. In reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans decided to alter their respective salaries. Starting no earlier than December, 1992, Cheryl has been paid $725 a week, and Tony has been paid $450 a week. As before, as a practical matter, except for the Social Security credit, the relative size of their salaries does not matter to the Meehans. Cheryl deposits both checks into their joint personal bank account for the use of both of them, as needed. Also in reaction to the denial letter, and to improve their company's chances of being certified as a minority business enterprise, the Meehans met as the board of directors on or about March 18, 1993, to change the constitution of the board of directors and to change the officers of the corporation. They made Cheryl the chairman and sole member of the board of directors, and the president of the corporation. They made Tony the vice-president, secretary, and treasurer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Management Services enter a final order denying the application of Tony Meehan's Auto Repair, Inc., d/b/a Burnie's Auto Service, for certification as a minority business enterprise. RECOMMENDED this 13th day of May, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1993.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
