The Issue Whether Respondent, a certified general contractor, violated the construction industry licensing law, by: (1) willfully or deliberately disregarding and violating the applicable building codes or laws of the State or any municipalities, cities or counties thereof; (2) diverting construction funds resulting in his unwillingness or inability to perform pursuant to a construction contract; and (3) abandoning a construction project; and if the Respondent is guilty of such violations, the appropriate disciplinary penalty which should be imposed by the Construction Industry Licensing Board.
Recommendation That Respondent's certified general contractor's license No. CGC005174 be suspended until such time as Respondent furnishes the Board satisfactory evidence of having made restitution to Simon H. and Alexandra U. Ramos in the amount of $2,515 for monies expended by them to pay for lumber, electric and plumbing charges arising out of their construction contract.
Findings Of Fact At all material times, Respondent has been a certified general contractor, holding license number CG CA19293. In September 1983, he was, according to a form filed with Petitioner, "legally appointed to act for [Ebbtide Construction & Development, Inc.] in all matters connected with its contracting business, and given authority to supervise construction undertaken by the business organization." Ebbtide was engaged in the home construction business. Paul Gregg purchased Ebbtide in 1988. Respondent still served as an employee and primary qualifying individual for the corporation. Erroneously believing that at least three persons were required by law to serve as officers of the corporation, Mr. Gregg appointed Respondent and a third person to serve as officers and directors with Mr. Gregg, who owned all of the stock of the company. On August 27, 1991, Mr. Gregg, on behalf of Ebbtide, entered into a construction contract with Richard and June Cote, who were neighbors of Mr. Gregg in Connecticut. The contract calls for the Ebbtide to construct a certain style of home for the Cotes. In return, the Cotes would pay Ebbtide a total of $72,500. The contract intentionally omits the location of the homesite because, at the time of the execution of the contract, neither party knew where the house would be built. The contract inadvertently fails to require Ebbtide to purchase a lot for the Cotes, but the total contract price was to include a lot. The contract was contingent on financing. If the Cotes failed to obtain financing, "either party may cancel this Contract." The contract does not provide that Ebbtide could retain any part of the money paid by the Cotes in the event of cancellation for the Cotes' failure to obtain financing, nor did the parties so intend. On November 1, 1991, the parties executed a new contract. The new contract was identical to the original contract, except that a $15,000 pool had been added and the cost of the house increased $5000. The total was now $92,500. The contract reflects the fact that the Cotes had now paid Ebbtide a total of $18,500 in deposits. At the time of the execution of the November 1 contract, the parties still had not identified a lot on which Ebbtide could build the home. Sometime in early 1992, the Cotes found a lot with Mr. Gregg's assistance. The Cotes applied for a mortgage loan, contemplating a closing during the summer. The Cotes were approved for the loan on April 27, 1992, but were unable to close due to a title problem with the lot. Respondent had nothing to do with the location of the lot. Mr. Gregg was the only person on behalf of Ebbtide involved with this aspect of the transaction. Later, Mr. Gregg, on behalf of Ebbtide, located another lot, in which he owned an interest. For some reason, however, this lot also proved unsuitable. When the second lot fell through in March 1993, the Cotes demanded of Mr. Gregg that Ebbtide return their money, which had been deposited in Ebbtide's general account and used for general overhead. Mr. Gregg did not do so, and months went by without any progress. Mr. Gregg showed real interest in the problem only after the Cotes complained to Petitioner. Without denying liability for the deposit, Mr. Gregg has not returned any of the money, nor has he worked out a repayment plan. Although Respondent was a signatory on the company's checking account, he only became involved in financial matters when a construction account was set up for a house for which construction had actually started. Otherwise, Respondent did not involve himself in financial matters and limited himself strictly to the supervision of construction. When Mr. Gregg purchased the company in 1988, Respondent was a salaried employee. Respondent remained a salaried employee, without commissions or bonuses, until he left the company. In fact, his salary was never increased. Worried about the financial condition of Ebbtide, Respondent withdrew his license from the company on December 9, 1993.
Recommendation It is RECOMMENDED that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint. ENTERED on March 27, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 27, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1: adopted or adopted in substance. 2: rejected as irrelevant. 3-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. 7-15: adopted or adopted in substance. 16-19: rejected as subordinate. 20: adopted or adopted in substance. 21-23: rejected as subordinate. 24-26: adopted or adopted in substance. 27: rejected as subordinate and irrelevant. 28-29: adopted or adopted in substance. 30-35: rejected as irrelevant. 36-37: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6-11: rejected as irrelevant. COPIES FURNISHED: Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kelly Anne Cruz Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 David J. Hayes 17131 Pleasure Rd. Cape Coral, FL 33909 Linda Goodgame, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Respondent, Decorative Concrete and Curbing, Inc. ("Decorative Concrete"), complied with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes (2008).1
Findings Of Fact The Department is the government agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. Decorative Concrete is a business, duly incorporated by the State of Florida, which is generally engaged in the construction industry. On September 17, 2008, Seidler, as an investigative analyst for the Department, visited a work site at 5423 Parker Drive in Ft. Myers, Florida, at approximately 8:30 a.m. She witnessed two men (later identified as Sam Gibson and Kevin Miller), doing some sort of concrete construction work.2 Seidler drove around to some other work sites and returned to the Parker Drive site around 10:00 a.m. Gibson and Miller were still engaged in their construction work at that time. Seidler approached the men and identified herself as a Department investigator and presented her credentials. Based on her questions to the men, she learned that they worked for Decorative Concrete. It was Miller's first day on the job, according to his statement. However, Clapper said Miller had never worked for Decorative Concrete. Rather, he and Gibson were "fishing buddies and drinking buddies," and Miller was simply helping Gibson get a small job done so they could go fishing. There is no other evidence that Miller was or ever had been employed by Decorative Concrete. Seidler then confirmed the identity and corporate status of Decorative Concrete using the Department of State, Division of Corporations website. Using a data base called the Coverage and Compliance Automated System, Seidler determined that there was no workers' compensation insurance coverage in place, nor were there any officer Certificates of Exemption for workers' compensation coverage for Decorative Concrete. She found that Decorative Concrete had previously had coverage through a Professional Employment Organization (PEO) called Decision HR. However, that insurance coverage had been terminated by Decision HR on July 27, 2008. Decorative Concrete had also had workers' compensation insurance coverage through another PEO, Southeast Personnel. However, Southeast Personnel had terminated their relationship with Decorative Concrete on August 11, 2008, approximately five weeks prior to Seilder's site visit. Seidler then met with Suzette Clapper, identified as the vice-president and registered agent for Decorative Concrete, and learned that Decorative Concrete was negotiating with Southeast Personnel for coverage, but they had not come to an agreement. Decorative Concrete had not had any concrete work for the period August 26 through September 17, 2008. As a result, Southeast Personnel had not issued any coverage. (It was the policy of Southeast Personnel to cancel coverage during times of inactivity, then reinstate the insurance--for a fee-- once work recommenced.) The Department requested certain business records from Decorative Concrete in order to assess the proper penalty for failure to have workers' compensation coverage. No business records were provided, so the Department was required to impute a penalty according to established Department policies and rules. In the absence of records, such as bank statements, cancelled checks, and general ledger books, the Department assesses a penalty on a structured formula. The Department uses the average weekly wage for the particular construction industry at issue (in this case Class Code 5221) as the imputed wage for the employees at issue. A factor of 1.5 is then added, wherein the imputed wage is multiplied by that number to obtain a gross imputed salary. The period of non-coverage is then determined, i.e., the number of weeks there was no workers' compensation coverage for each employee. The Department may impute income for workers for a period of up to three years. In the instant case, Decorative Concrete had only been incorporated since January 1, 2008, and so that date was used as the beginning date. The gross imputed salary is then multiplied by the number of uncovered work weeks. The workers' compensation rate for that particular classification code (in this case, $6.97) is then assigned to the calculation. This figure then results in a number equal to the actual amount of the premium that is due for the employee. In this case, the premium per employee was $2,885.79. That figure is then multiplied by 1.5 to determine the penalty ($4,328.68 per employee) to be assessed against the employer. The Department then issued an Amended Order of Penalty Assessment against Decorative Concrete with a total penalty amount of $8,657.38 (i.e., the calculated penalty times two employees). Decorative Concrete did not provide business records to the Department on the advice of counsel. That advice was clearly wrong, but Clapper relied upon the advice to his detriment. For example, business records would have verified workers' compensation coverage for part of the period in dispute, because Decorative Concrete was obviously covered for certain periods by two different PEOs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Financial Services, Division of Workers' Compensation, assessing a penalty against Respondent, Decorative Concrete and Curbing, Inc., in the amount of $4,328.68. DONE AND ENTERED this 20th day of March, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2009.
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: At all times relevant to the proceedings, the Respondent, David R. Decker, held a current general contractor's license issued by the State of Florida. David R. Decker & Associates, Inc., by its president, the Respondent herein, and Robert and Shirley Dyer, entered into a contract for the construction of a residence at 1240 Majestic Oak Drive, Apopka, Florida. This contract contained a draw schedule setting forth six "draws". The Respondent received draws 1 through 4 for a total of 75 percent of the loan proceeds held by the lender, Heritage Federal Savings and Loan Association. The Respondent had not been paid draw 5 entitled "trim out" and draw 6 entitled "completion, including landscaping". At the time when construction was discontinued by the Respondent, the performance was between 75 percent and 90 percent complete. At the time of discontinuance of performance by the Respondent, Hardware Products and Specialties, Inc., had outstanding invoices, bearing dates of May 6, 1981, May 7,1981 and May 22, 1981, for locksets, doors, escutcheons, locks, garage door, and garage door opener, totalling $849.47. These items are properly considered "trim items". When the Respondent discontinued construction, Fanning Lumber and Hardware Company, Inc., had outstanding invoices for purchases made during April through May of 1981, for a total amount of $2,152.61, for items which are also properly considered in the trade as "trim items". Upon receipt of the invoices from Panning Lumber and Hardware Company, Inc., the Respondent notified Panning that he could not make payment because he had not received the "trim draw" from the Complainants. At the time of discontinuance of performance by the Respondent, Schilke Enterprises, Inc., had an outstanding invoice in the amount of $1,766.62 for aluminum windows, patio sliding glass doors and screens, as well as installation charges. The Respondent made partial payment of $502.70 for windows and screens, and by letter informed Schilke Enterprises, Inc., that he has not been paid the "trim draw" to pay for the remaining items, the bulk of which were patio doors. The co-complainant, Shirley Dyer, informed Schilke Enterprises Inc., that in no way would Schilke be paid for the windows and patio doors sold by them. Disagreements and disputes as to construction arose, eventually culminating in a meeting between the Complainants and the Respondent on May 28, 1981. Mr. Dyer testified that the Respondent Decker stated "I quit". The Respondent testified that on a number of occassions disagreements had erupted, not only between himself and the Dyers but between the Dyers themselves, and that he had to remove himself from these discussions to permit Mr. and Mrs. Dyer to resolve their conflicts. Mr. Decker further testified that he again took this approach on May 28, 1981, when another disagreement arose. Mr. Decker denied having stated "I quit", but did state "We can't go on like this". It is unclear from the testimony whether or not Mr. Decker, in fact, abandoned the construction project on May 28, 1981, or whether he was forced to remove himself from the meeting with Mr. and Mrs. Dyer because of the disagreement. Subsequently, the Respondent did notify the complainants' that he sought to complete performance under the terms and conditions of the contract. In response, the complainants informed the Respondent that they were proceeding with the completion of the contract without him. The Respondent once again expressed his desire to continue, and requested a meeting to resolve their differences. Mr. Dyer responded through his attorney on June 29, 1981, refusing to permit the Respondent to continue with the contract. On or about June 23, 1981, the complainants, through their attorney, notified all subcontractors and suppliers that "Mr. and Mrs. Dyer have terminated their contract" with David R. Decker and Associates, Inc.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint, as amended, against David R. Decker, be dismissed. THIS RECOMMENDED ORDER entered this 4th day of October, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 4th day of October, 1982. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Michael E. Gray, Esquire Post Office Drawer Z Sanford, Florida 32771
The Issue This case arises on an amended administrative complaint filed by the Petitioner which seeks to have Respondent's contractor licenses disciplined for alleged violations of Chapter 489, Florida Statutes, incident to the construction of a residence near Melrose, Florida. The case originally was scheduled to be heard on July 10, 1987, but after the hearing was convened, Respondent's counsel sought a continuance based on Respondent's health problems which were supported by a doctor's statement. The motion was granted and the hearing was continued until August 25, 1987. At the hearing, Petitioner presented the testimony of Evans Starke, Marion Uhl, and Robert H. Adams. Petitioner submitted eight exhibits in evidence, including the depositions of Respondent and Matthew M. Gordon. Respondent testified in his own behalf and submitted three exhibits in evidence. However, Respondent's exhibit three, which was a house plan, was retained by Respondent and a copy thereof was to be filed within 10 days after the hearing. Additionally, Respondent was provided a period of 10 days after the hearing to submit a deposition of James A. Taylor However, the deposition was not filed within the required period nor was Respondent's exhibit three. Respondent's post-hearing motion to extend the time for filing the deposition was denied. The parties were provided a period of ten days from the filing of the hearing transcript in which to file proposed recommended orders. Neither party made a timely submission. However, Respondent's post-hearing motion to extend the time period was granted. The proposed Findings of Facts submitted by both parties were considered and substantially incorporated herein.
Findings Of Fact Respondent Joseph Rentz is licensed as a registered building contractor, roofing contractor, and mechanical contractor, and was so licensed at all times pertinent to this proceeding. In addition, he is the qualifying contractor for Alachua Association Builders. (Petitioner's exhibits 2-3) In March 1985, Evans Starke of Miami, Florida entered into an oral agreement with Respondent for the construction of a residence near Melrose, Florida. Respondent agreed to build the house on a cost-plus basis and estimated that the cost would be approximately $27.00 per square foot or less. Respondent told Starke that he would be satisfied with 10 percent of the cost of construction for his fee. The arrangement was that Starke would Periodically provide money to his aunt, Lenora Peterson, and that Respondent could make draws from that source as required to progress with construction. Starke also asked Respondent to open a checking account from which he would pay the bills for materials and labor. (Testimony of Starke) The original construction plans provided to the Respondent by Starke were for a house of approximately 4,000 square feet, but since Starke wished to expand the size of the house considerably, he informed Respondent of the various modifications which resulted in Respondent obtaining revised plans from a draftsman for a house of approximately 10,000 square feet. (Testimony of Starke, Respondent) Respondent obtained a building permit in his name and commenced construction. As work progressed, Respondent would inform Lenora Peterson of the need for progress payments for materials and labor on a weekly basis. She would then provide the necessary money in cash to Respondent and obtain a signed receipt from him. During the period March through September, 1985, Respondent signed receipts amounting to $121,360. Respondent had several checking accounts in the name of "J. & L. Properties", into which some of the draws were deposited and checks drawn thereupon to pay materialmen, subcontractors, and workmen. In other instances, Respondent paid cash to workmen, but obtained no receipts therefor. Starke visited the project site usually on a biweekly basis during the initial months of construction. On several occasions, he met Respondent midway between Gainesville and Miami to deliver cash for construction costs. Some of this money given to Respondent was not evidenced by a receipt of Respondent. Starke testified that on one occasion, he gave Respondent $3,000 to pay for the installation of a well, but Respondent had only given the well-digger $1,000, and Starke later found that he still owed the balance, plus a 25 percent rise in cost. Starke also claimed that he spent $1,000 to put a drain under the driveway to the basement because Respondent had forgotten to do so. He further stated that he had given Respondent $5,000 to purchase shingles for the house, but Respondent bought only enough to cover the garage. Consequently, Starke was obliged to expend further sums to obtain the remaining shingles. (Testimony of Starke, Respondent, exhibits to deposition of Rentz (Petitioner's Exhibit 2), (Petitioner's composite Exhibit 6) During Starke's periodic visits to the job site, he requested that Respondent show him the bills and receipts for the purchase of construction material and labor payments, but Respondent evaded such request by saying that his wife was handling the business matters, and that she was ill and unable to show him the records. Eventually, Starke became more concerned because of the discrepancies in the expenditures of funds, and therefore made a special trip in October 1985 to meet with Respondent and go over the project accounts. At that meeting, Respondent's wife provided Starke with a number of canceled checks on the J. & L. Properties account, which failed to identify any specific payments for the Starke project, but which consisted mostly of apparent payments of Respondent's personal bills. (Testimony of Starke, Respondent, Petitioner's Exhibits 2,6) Subsequent to the October meeting, Respondent asked Starke for the sum of $1,500 for his own services, which was paid. This was the last payment made by Starke to Respondent and the last contact that he had with him. Respondent performed no further work and left the project about the third week of November 1985. Although Starke attempted to get in touch with him during the intervening period, he was unsuccessful in doing so. (Testimony of Starke, Respondent, Petitioner's Exhibit 2) On January 31, 1986, Starke obtained a new building permit to complete his residence, and hired Marion C. Uhl, a certified residential contractor, at an hourly rate to supervise the remaining work. Uhl found at that time that the house consisted of a shell with some interior partitions erected and doors in place, but without any electrical or plumbing work, except for a garage bathroom. It took him approximately ninety days to correct previous construction errors before it was ready for subcontractor work. Specifically, he found that the partition walls were out of plumb and that some of the doors were not framed properly. It was necessary for him to tear them out and redo the work. He found no backing (dead wood) for the ceilings and walls which should have been in place before the roof was sheathed. He had to take out all the windows which were out of plumb and reinstall them. It was necessary to frame out the gables of the house in order that water wouldn't accumulate in vacant areas. Water had accumulated in the garage basement due to a failure to install proper drain fields under the house. Additionally, it was discovered that there was no concrete in the tie beams which supported the floor above and could cause it to sag eventually. In Uhl's opinion, which is accepted, these problems would not have occurred if the job had been properly supervised. (Testimony of Starke, Uhl) Robert H. Adams, an expert in the residential contracting field, who owns a building inspection firm, inspected the Starke premises on May 18, 1987 at the request of Petitioner. Based upon his examination of the house, he found the following deficiencies, which had existed at the time Respondent left the project: In some areas, the brick veneer exterior walls were not properly supported on the footing in that the brick veneer protruded beyond the outside edge of the footing. Also the footing was at grade rather than being below grade. Failure to utilize solid concrete walls or pouring of concrete into concrete blocks which formed walls supporting a steel I-beam. This deviation from the plans could result in failure of the foundation walls. Improper splicing of girders under the house. Girders were butt-spliced rather than spliced with either a shep or a diagonal cut. The joints were not over a supporting pier. Settling from the floor above could cause the house floor to sag. The exterior brick roll-out window sills were level instead of being at a slight angle to permit water to flow away from the bottom of windows, thus causing the potential of water intrusion into the house. Front entry brick steps were not centered with the door opening by approximately 18 inches. An exterior garden hose bib Produced hot water instead of cold at left front of the garage. This was caused by "mis- plumbing" the cold and hot water lines. Block wall of the garage was out of plumb approximately 7/8 of an inch over a 4 foot vertical distance. One of the garage roll doors had only 9 foot, 3 inch clearance instead of 10 feet as called for by the plans. Uneven coursing of brick veneer at the ceiling of the right rear porch. Waferboard was used on roof decking rather than plywood as called for by the plans. Waferboard is not as strong as plywood. Water intrusion into the garage- basement. In Adams' opinion, which is accepted, the deficiencies noted by his inspection reflected very poor workmanship and gross negligence, in that the fundamentals of construction as practiced in the construction trade were not observed by Respondent in major areas. They were gross deviations from good building practices and a competent contractor properly supervising the job would have been aware of the deviations from good contracting practice. In addition, it is incumbent upon a contractor to keep accurate and complete financial records for a particular project. (Testimony of Adams, Petitioner's Exhibit 7) In January 1986, Starke employed Universal Engineering Testing Company, a structural engineering firm, to ascertain the cause of groundwater leaking into the garage-basement of his house and to provide remedial recommendations. Professional engineers of the firm inspected the premises and observed that groundwater was leaking at the wall-floor joint around most of the garage. They found that although a drainage system had been installed during construction, soil and groundwater conditions at the site limited the effectiveness of the existing system, due to hydrostatic pressure build up under the garage floor. It was determined that, unless the pressure was dissipated with under-slab drainage, the slab would heave, crack, and leak at the wall-slab joint They found that the situation could only be remedied by installing an under drain grid after removal of the existing slab. In their professional opinion, which is accepted, the failure of the existing slab had been caused by excessive water pressure build up and improper construction techniques. (Testimony of Gordon, Petitioner's Exhibit 1) At the hearing, Respondent admitted that he had never constructed a house of the scope and size of the Starke residence, but that he had attempted to build what Starke desired in accordance with the plans and numerous changes required by Starke during the course of construction. Such changes, in his view, caused the difficulty in centering the brick work at the front of the house since this work was called for after the front door had already been installed. He claimed that he had waterproofed the garage-basement and put in French drains, but that water couldn't go out, and it was necessary to install a tank under the driveway to pump the water from the basement. Respondent also conceded that he did not maintain continuing records during the course of construction as to the financial aspects of the project, but intended to recapitulate all costs and payments when construction was completed. He acknowledged that receipts from the project were commingled with other funds in his bank accounts and he was unable to show the disposition of proceeds from the project. As to leaving the job, Respondent said that he left because he was threatened by Starke and also because of ill health caused by the stressful situation which came from continuing complaints by Starke concerning the workmanship, and also by the numerous changes to the construction plans. Although Respondent claimed that he notified Starke by letter of January 14, 1986, that he intended to remove his permit no later than January 27, 1986, because it appeared that Starke had decided to take charge of completing the construction, Starke denied receiving such a letter and there is no credible evidence that it was delivered. (Testimony of Respondent, Petitioner's Exhibit 2, Respondent's Exhibit 1) On two prior occasions in 1985 and 1986, Respondent was disciplined by the Construction Industry Licensing Board pursuant to settlement stipulations of administrative complaints filed by Petitioner against Respondent. In those stipulations, Respondent admitted violations of Chapter 489, Florida Statutes, as alleged in the complaints, and administrative fines of $250 and $400 were imposed. (Petitioner's Exhibits 4-5)
The Issue Whether petitioner was required or entitled to enroll in the Florida Retirement System at any time prior to March of 1989?
Findings Of Fact In the winter of 1979, petitioner DeWayne Manuel began performing building inspection services for Gulf County. He had responded to a newspaper advertisement entitled "JOB OPPORTUNITY," which stated, "Work will be under supervision of Building Inspector . . . Equal Opportunity Employer." Respondent's Exhibit No. 9. On the recommendation of E. F. "Red" Gunn, then head of Gulf County's Building Department, the Board of County Commissioners engaged him "temporarily" as a building inspector on March 13, 1979. Testimony of Manuel and Gortman. In the view of Commissioner Jimmy O. Gortman, Mr. Manuel was treated no differently than any other county employee. But Gulf County's Building Department was funded from permit fees, rather than from general county revenues. The building department was not "on the ad valorem tax budget." Testimony of Gortman; Stipulation. For the period March 13, 1979, to September 30, 1979, Gulf County paid petitioner $1,525.52. For the fiscal year ended September 30, 1980, Gulf County paid petitioner $3,840.83. Effective December 1, 1980, petitioner became responsible for all building inspections in Gulf County, not just those on projects north of the intracoastal canal. Petitioner's Exhibit No. 1A, Book 11, pp. 366-7. For the fiscal year ended September 30, 1981, Gulf County paid petitioner $13,319.83. For the fiscal year ended September 30, 1982, Gulf County paid petitioner $22,188.00, which represented permit fees from which a telephone expense of $24.00 a month, aggregating $288.00, had been deducted. Before the fiscal year ended September 30, 1982, Gulf County had deducted no expenses from permit fees, in calculating petitioner's compensation. Deposition of McCroan. At a county commission meeting on January 11, 1983, Mr. Gunn gave "an oral report on . . . problems" "with Building Inspector DeWayne Manuel's job performance," "fired Building Inspector Manuel and then resigned himself." Petitioner's Exhibit No. 1A, Book 12, p. 305. But, before the meeting concluded, "Mr. Gunn agreed to continue working as Building Official . . . and he then rehired Mr. Manuel as Building Inspector." Id., p. 306. When the county commission met on May 24, 1983, Mr. Gunn resigned, effective June 1, 1983, and "recommended the Board hire DeWayne Manuel as the Building Official." Petitioner's Exhibit No. 1A, Book 12, p. 381. At the same meeting, the Board voted unanimously to accept this recommendation. Id. For the fiscal year ended September 30, 1983, Gulf County paid petitioner $18,894.40. At its meeting on September 13, 1983, the "Board agreed to pay DeWayne Manuel . . . $1,130 per month as long as funds are available from the Building Permit Revenues," Petitioner's Exhibit No. 1A, Book 12, p. 447, thereby "capping" his compensation from the Building Department for the first time. Perhaps because he also served an eight- or nine- month stint as acting mosquito control director, however, Gulf County paid petitioner $41,985.28 during the fiscal year ended September 30, 1984. Testimony of Manuel; Deposition of McCroan. On November 13, 1984, the Board voted to pay "DeWayne Manuel $35,540 per year on a contract basis." Petitioner's Exhibit No. 1A, Book 13, p. 215. Although the Board voted changes in his rate of compensation thereafter, his income no longer depended on Building Department collections. For the fiscal year ended September 30, 1985, Gulf County paid petitioner $36,532.01; and for the fiscal year ended September 30, 1986, Gulf County paid petitioner $39,011.98. McCroan Deposition. During calendar year 1986, Gulf County paid petitioner $39,315.91. During calendar year 1987, Gulf County paid petitioner $41,929.77. During calendar year 1988, Gulf County paid petitioner $44,891.75. Respondent's Exhibit No. 6 to Deposition of Lister. On May 24, 1988, in response to audit criticisms, the Board entered into its first written contract with petitioner, which provided: Revenue source - All monies received from the sale of all types of building permits and interest earned on funds received from the sale of building permits in Gulf County shall be the revenue source for all costs and expenses of the Building Inspection Department. Separation of Costs and Expenses The Board of County Commissioners (Gulf County) shall pay or provide the following expenses or resources out of the above mentioned revenue source: secretary, office space, office supplies, administrative costs for operation of department utilities, telephone expenses (except for telephone expenses listed in Section II. B. 1. below) errors and omissions insurance coverage and a contract price of $40,905.00 to the Building Official for FY 87-88 (paid monthly). Contract price is calculated in the following manner. A $40,000.00 figure was established by the Board of County Commissioners for FY 86-87 (Book 14 Page 119). The contract price was increased for FY 87-88 by the same amount that all other Court House employees received, $455.00. In FY 87-88 the contract price was increased by $405.00 represents 2% of $22,500.00 which was estimated to be the salary after the deduction of expenses (listed in section B. 1., 2., 3., and 4. below). Building Official - Out of the $40,905.00 contract price, the Building Official is to pay the following: Basic (monthly) mobile telephone expenses In-county travel expenses All benefits (i.e. F.I.C.A., retire-ment, vacation, health and life insurance) All income tax withholdings Contracted services to be performed by the Building Official Be available (in office, on inspections, in meetings, or etc.) a minimum of 40 hours per week. Be responsible for the operations of the Building Department. Be responsible for all inspections required by the Standard Building, Plumbing, Mechanical, Gas, Swimming Pool, and the National Electric Codes, as well as such other codes which may be adopted in Gulf County. Be responsible for the duties of the Local Administrator as defined in the Gulf County Flood Ordinance. Such other duties as may be directed by the Board of County Commissioners of Gulf County. This agreement shall expire September 30, 1988 and may be cancelled at an earlier date by either party for good cause, by giving thirty (30) days notice. Respondent's Exhibit No. 8 to Lister Deposition. The contract provisions reflected the relationship that had existed between petitioner and Gulf County for some time before it was actually signed. Later the same year, petitioner's status was called into question. On September 27, 1988, Mr. Manuel was a topic of discussion at the County Commission meeting. Chairman Birmingham stated that he is satisfied with the present system, and stated that if the Building Department contract is not valid, he will vote to hire Mr. Manuel as a full-time County employee. Commissioner Branch stated that he has no problem with Mr. Manuel, and stated that he is very dedicated to Gulf County. Commissioner Traylor also stated that Mr. Manuel has done a fine job. After discussion, Chairman Birmingham requested that Attorney Rish check to see if different arrangements need to be made concerning this position (make him a permanent County employee, etc.). Upon inquiry by Ms. Arnold about the contract ending on September 30, 1988, and about being able to apply for the job, Attorney Rish stated that anyone could apply at any time. Upon further inquiry by Ms. Arnold about Mr. Manuel having a life-time contract, Chairman Birmingham stated that, as far as he is concerned, Mr. Manuel has the job unless he messes up. Petitioner's Exhibit No. 1A, Book 15, pp. 698-9. Two additional entries in board minutes reflect pertinent developments on February 14 and 28, 1989, respectively: Commissioner Gortman moved that the Board hire Building Inspector Manuel as a permanent County employee, under the direction of the Board (to negotiate salary, travel, etc.), effective March 1, 1989. Chairman Birmingham gave the Chair to Vice Chairman Peters, and seconded the motion. After discussion about the history and the financial situation of the Building Department, Commissioner Creamer stated that he would like an opportunity to discuss this matter with Mr. Manuel before making a decision. Chairman Peters stated that he is under the same impression as Commissioner Creamer, and he is also concerned about whether or not the job should be advertised. Upon inquiry by Commissioner Gortman, Attorney Rish reported that it would be legal for the Board to hire Mr. Manuel as a regular County employee, if Mr. Manuel is agreeable (he also stated that he will need to read the existing contract). After discussion, the motion passed with the following vote: Commissioners Birmingham, Creamer Gortman, and Parker voted yes. Chairman Peters voted no. Chairman Peters returned the Chair to Commissioner Birmingham. Chairman Birmingham then requested that Commissioner Gortman and Commissioner Parker work out the details of Mr. Manuel's duties and his salary, travel, etc., and report back to the Board at the next regular meeting. Upon inquiry by Commissioner Gortman, Attorney Rish reported that the Board has no problem with breaking the contract, if Mr. Manuel has no problem with it. . . . Commissioner Gortman moved that the Board hire DeWayne Manuel as a County employee with duties as Building/Fire Official (putting the Building Department under the direction of the Board) for the remainder of this fiscal year at $16,380.00 - salary, $1,230.00 - social security, and $2,356.00 - retirement, which totals $19,966.00 plus $.17 per mile for in-County travel not to exceed $4,760.00, which will give a grand total of $24,726.00 (to re-negotiate next fiscal year). He also included in his motion that Mr. Manuel will work 40 hours per week (and on weekends, if needed) under this salary, doing the Building Department work plus anything the Board directs him to do. Commissioner Gortman stated that Mr. Manuel is to have 10 years seniority, and is to be allowed to participate in the State retirement program (he will have to pay any back retirement). Upon inquiry by Commissioner Creamer and after discussion about the rate per mile for other County employees. Commissioner Gortman also included in his motion that the Board pay all County employees $.17 per mile for in-County travel and that the revenue from the inspections will go into the Building Inspector's budget. Commissioner Parker seconded the motion. Commissioner Peters stated that he feels this job should be advertised. Commissioner Parker stated that Mr. Manuel has been working without a contract since September and if he has worked this long without a contract, he should have the benefit of the doubt. The motion then passed with the following vote: Chairman Birmingham and Commissioners Creamer, Gortman, and Parker voted yes. Commissioner Peters voted no. Jean Arnold discussed that she is opposed to the Building Department funds not being controlled in the past, and is opposed to Mr. Manuel being the Building Inspector. . . . On March 1, 1988, there was no change in petitioner's hours, duties, job description or the number of people working in the Gulf County Building Department. The separate fund containing building permit fees was abolished, and petitioner began to be paid from general revenues, including ad valorem taxes. He also enrolled as a regular member of the Florida Retirement System on March 1, 1989. Testimony of Gortman and Birmingham. Gulf county prepared and filed 1099 forms reflecting moneys paid petitioner for the years 1985 through 1988, and for the first two months of 1989. Before 1985, the county did not prepare either a W-2 form or a 1099 form or otherwise report petitioner's income to the Internal Revenue Service. The only W- 2 form the county produced for him covered the period from March 1, 1989, until he left Gulf County's employ on September 30, 1989. Asked why she had not produced W-2 forms for petitioner before March 1, 1989, Donna R. McCroan, the county payroll clerk, explained that "[h]e had not gone through my payroll system, and that unless you run them through - - put his figures through my payroll system, my figures wouldn't balance." Deposition of McCroan, pages 14 and 15. At different times, Gulf County paid petitioner weekly, bi-weekly and monthly. Petitioner was listed as a vendor, rather than as an employee, for some time before March 1, 1989. At first, petitioner received compensation equivalent to the building permit fees Gulf County took in, during the pertinent period, on account of construction permitted in Gulf County, north of the intracoastal canal. Eventually added to this sum was a fraction of the fees Gulf County collected on behalf of Wewahitchka and Ward Ridge; and fees from permits issued for Gulf County south of the canal. Originally, petitioner's compensation was never based on invoices he submitted. For each pay period, the county clerk's office prepared a voucher listing the building permits that issued during that pay period. Petitioner's Exhibits Nos. 6 and 7. Because applicants for building permits paid fees as or before permits issued, before inspection services were needed, petitioner's compensation varied from period to period, not with the number of inspections or other work that he performed, but with the number of building permits "pulled." At no time was he paid for inspections as piecework. At county expense, petitioner was trained as a building inspector. He performed building inspection services under Mr. Gunn's supervision until the latter's retirement. Petitioner was obliged to follow the methods of inspection prescribed by the building code, but free to determine whether or not code requirements were met in a particular case. He had to use certain receipt and other forms, and keep records in a prescribed fashion to facilitate audits. No written job descriptions defined the duties of Building Department employees. Even when petitioner answered to Mr. Gunn, the Board of County Commissioners sometimes assigned him tasks directly, in areas unrelated to the building department. Petitioner helped obtain a permit from the state Department of Environmental Regulation for the county landfill, dealt with the state Department of Transportation on questions concerning bridges, dealt with the state Department of Corrections in connection with the county jail, secured a mosquito control grant and various other grants for Gulf County, and performed other jobs as directed. When working on things other than building inspections, the county commissioners often told him "exactly what to do." Testimony of Birmingham. When Gulf County hired him, Mr. Manuel sold his Western Auto Store and, beginning in April of 1979, devoted 40 hours or more a week to county duties. He never took vacations. His compensation was not reduced the only time he missed work for illness. Except for time in the field, he did all his work on Gulf County's "premises," in an office the county supplied. Gulf County provided not only an office but, eventually, a secretary and other building inspectors. Petitioner supervised these county employees. The county paid workmen's compensation premiums for petitioner, furnished office supplies and equipment, including a computer; and equipment for use in the field, including piling boring equipment and an electrical inspection tool known as a Megger. Until petitioner acquired a mobile telephone, Gulf County paid all telephone expenses the Building Department incurred. Afterwards, it paid telephone expenses except for the basic mobile telephone charge. Gulf County reimbursed petitioner for travel out of the county on the same basis that it reimbursed all county employees. Building inspection services petitioner or county employees under his supervision performed for Wewahitchka or Ward Ridge occurred under the terms of intergovernmental agreements, and on behalf of Gulf County. Otherwise, petitioner performed no building inspection or other services for any person or entity other than Gulf County while he worked for the county. Upon Mr. Gunn's departure, petitioner assumed supervisory responsibilities for the Gulf County Building Department, and served as department head.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner regular membership in the Florida Retirement System for the period April 1, 1979, to February 28, 1989. DONE and ENTERED this 1st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 3, 4, 5, 6, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 1 and 2 refer to a county ordinance not in evidence. Petitioner's proposed finding of fact No. 9 pertains to a subordinate matter. Respondent's proposed findings of fact Nos. 1, 4 through 8 and 10 through 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 2, the fees were for building permits, not for inspections as such. With respect to respondent's proposed finding of fact No. 3, the evidence showed he took sick leave. With respect to respondent's proposed finding of fact No. 9, there was testimony that the County's payroll clerk prepared the vouchers. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 De Wayne Manuel P.O. Box 7593 Daytona Beach, FL 32116 De Wayne Manuel 212 Tapper Drive P.O. Box 305 Port St. Joe, FL 32456 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The basic issue in this case is whether the Respondent's license as a certified general contractor should be revoked or suspended, or some other discipline imposed, for the reasons alleged in a multi-count Administrative Complaint. The essential allegations of the Administrative Complaint may be summarized as follows: Count One--failure to properly qualify a company under which Respondent was doing business and acting in a name other than that on his license; Count Two--abandoning a construction project without just cause and willful or deliberate disregard and violation of applicable local building codes; Count Three-- diverting funds received for the completion of a specified construction project when as a result of the diversion the contractor is unable to fulfill the terms of his contract.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on matters officially recognized, I make the following findings of fact: Admitted and stipulated facts The Respondent is a certified general contractor, having been issued license number CG C007067. The Respondent's last known address is DeMaria & Sons Construction Company, Inc., 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334. On July 14, 1982, Respondent, doing business as Big D Construction, contracted with Jolly Libo-on of 312 S.E. 22nd Street, Fort Lauderdale, Florida, to build an addition to Libo- on's house for a contract price of $17,500.00. At all times material herein, Respondent qualified DeMaria & Sons Construction Company, Inc. At no time did Respondent properly qualify, nor did any licensed contractor properly qualify, Big D Construction. The Respondent began work on Libo-on's house on August 23, 1982, and continued construction until at least the last week of September of 1982. Libo-on has paid the Respondent $13,500.00 as called for by their contract. The following subcontractors or suppliers filed claims of lien against Libo-on's property because of Respondent's failure to pay them for services or supplies: Minute Men Associates, Inc. $1,752.47 Apachee Roofing 885.00 Meekins, Inc. 439.53 Greenlee Plumbing Service, Inc. 795.00 Total liens $3,862.00 7. The Respondent has not satisfied the liens filed against Libo-on's property, but the liens were later satisfied by Libo- on. Other relevant facts established by the evidence of record After September 27, 1982, the only work performed by or on behalf of the Respondent at the Libo-on residence was by employee Shawn Brannigan on November 16, 1982, and by employee Bob Walters on November 21, 1982. The work performed by Brannigan and Walters in November was de minimis in nature and did not significantly advance the completion of the contract. From September 27 through November 25, 1982, Libo-on called the Respondent by telephone on a daily basis to inquire about why no work was being done on the project. The Respondent would promise that someone would come the next day, but with the exception of the de minimis efforts on November 16 and 21, no work was done on the project after September 27, 1982, by or on behalf of the Respondent. Libo-on quit trying to make telephone calls to the Respondent after the Respondent told Libo-on on the telephone that he had reached a wrong number. The Respondent's services were terminated on December 7, 1982, via letter from Libo-on's attorney, Linn Brett. At no time prior to the termination of his services did the Respondent inform the Libo-ons that he could not do any more work nor did the Libo-ons dismiss him from the work at any earlier date. At the time Respondent's services were terminated, the addition was approximately 75 per cent completed. In addition to the subcontractors and suppliers listed in paragraph 6 above, the Respondent also failed to pay the sum of $2,393.00 which was due to International Drywall Systems, a subcontractor who provided services and supplies on the Libo-on project. Abandonment of a construction project constitutes a violation of Broward County Ordinance 78-9, Section 9-14(b)(8). Libo-on paid the lienors $3,441.00 in satisfaction of the liens. Libo-on contracted with Robert Hobart to finish the construction, at an additional cost of $4,000.00. Libo-on paid $2,200.00 for lawyers fees, $3,441.00 for liens, and $4,000.00 to Mr. Hobart. These costs minus the $4,000.00 remaining under the Respondent's contract resulted in Libo-on expending $5,641.00 above the original contract price. Of the $13,500.00 which was paid to him by Libo-on, the Respondent can establish that he spent only approximately $9,000.00 on the project. The Respondent was unable to complete the project because he did not have on hand the money to pay the subcontractors and suppliers.
Recommendation On the basis of all of the foregoing, it is recommended that the Construction Industry Licensing Board issue a Final Order suspending the Respondent's license for a period of five years and providing further that the suspension will be reduced to one year upon the Respondent's demonstrating to the Board that he has made restitution to Libo-on in the amount of $5,641.00. DONE AND ORDERED this 30th day of October, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 30th day of October, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4450 The following are my specific rulings on the proposed findings of fact submitted by both parties to this case. Rulings on proposed findings of fact submitted by the Petitioner: The findings of fact included in this Recommended Order include the substance of all of the proposed findings of fact submitted by the Petitioner with certain minor modifications and additions in the interest of clarity and accuracy. Rulings on proposed findings of fact submitted by the Respondent: The unnumbered paragraphs of the Respondent's letter of October 22, 1985, have comments, arguments, legal conclusions, and factual assertions all interspersed. Nothing in the letter constitutes a proposed finding of fact per se. Were it not for the fact that the Respondent is unrepresented by counsel, I would decline to attempt to address the issues raised in the Respondent's letter of October 22, 1985, due to both its tardiness and its failure to separately state proposed findings and proposed conclusions. Nevertheless, giving the Respondent more process than is perhaps his due, I have specifically ruled on each of the contentions which relates to factual matters and have also attempted to address his legal contentions. In the rulings below I have referred to the unnumbered paragraphs in the order in which they appear on each page of the letter. Page one, first paragraph: No ruling required. Page one, second paragraph: No ruling required. Page one, third paragraph: Respondent's version of the facts on this issue is rejected for several reasons, including the following: (1) competent substantial evidence supports the finding that from September 27 until December 7, 1982, only "token" or "de minimis" work was performed on the Libo-on project, and (2) the Respondent did not offer into evidence the documentation mentioned in this paragraph. Page one, fourth paragraph: There is competent substantial evidence for the Petitioner's version of the finding addressed by this paragraph. The Libo- on testimony on this subject is not hearsay. Page one, fifth paragraph: To the extent that in this paragraph the Respondent attempts to dispute the fact that he abandoned the Libo-on project, such a finding is rejected because the persuasive competent substantial evidence compels an opposite finding. Page one, sixth paragraph: With regard to the issue of the percentage of completion of the project at the time the Respondent abandoned it, there is conflicting evidence. The more persuasive evidence is that the project was approximately 75 percent completed. Page one, seventh paragraph (which also continues at top of page two): This paragraph contains a mixture of legal and factual contentions. With regard to the factual contentions it is sufficient to note that the greater weight of the evidence supports a finding that the amount paid to Hobart to finish the work on the Libo-on project was a reasonable amount because, in fact, it was exactly the same amount that remained to be paid to the Respondent on his unfinished contract. No one is trying to charge the Respondent for additional work that was not in his contract. The amount to which the Libo-ons are entitled in restitution is the sum of their expenses incurred for legal fees and for obtaining satisfaction of liens placed against their property because of the Respondent's failure to pay subcontractors and suppliers. Page two, first full paragraph: The Respondent's contentions in this paragraph are contrary to the persuasive competent substantial evidence. These contentions are also contrary to Respondent's admission at hearing that he could account for only approximately $9,000.00 of the $13,500.00 he was paid by the Libo-ons. Page two, second full paragraph: This paragraph requires no comment other than to note that there is a significant difference between imposing a fine and providing for a reduced suspension in the event of restitution. Page two, third full paragraph: Contrary to the Respondent's assertion, there is persuasive competent substantial evidence to establish the amount of the financial injury suffered by the Libo-ons as a result of the Respondent's misconduct. Page two, last paragraph: No ruling required. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Vincent A. DeMaria 4451 N.E. 16th Avenue Fort Lauderdale, Florida 33334 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
