Findings Of Fact Respondent is a registered specialty contractor having been issued license number RX0032228, which he holds in the name of Larry T. Huston, Huston Awning Co. On May 29, 1980, Frank Cornelius, on behalf of Hurst Awning Aluminum Company, Inc., went to the mobile home of Mr. and Mrs. Fred Olzak located in Broward County, Florida, where he met with Mrs. Olzak. By the conclusion of that meeting, Cornelius and Mrs. Olzak had entered into two separate contracts whereby Hurst was to construct a screened enclosure at her mobile home. Both contracts were fully executed and were for the same work, although they varied in price by almost $2,000. No credible explanation was offered as to why Mrs. Olzak entered into two separate contracts. Approximately a month later, three men arrived at the Olzaks' mobile home with materials bearing the Hurst logo in a truck bearing the Hurst name. They returned a day or two later and started the construction work contracted for by Mrs. Olzak. At the beginning of July 1980, when the work was almost completed, an inspector for the Broward County Building Department came to the job site and stopped the work for the reason that no permit had been obtained from Broward County. Shortly thereafter, Respondent telephoned Mrs. Olzak and explained that he had been requested by Frank Cornelius at Hurst to do the necessary engineering work for them. He requested permission to come to the Olzaks' mobile home to take the measurements necessary to prepare engineered sealed plans for the job. That evening, Respondent visited the Olzak job site and took the measurements necessary to prepare the plans in order to comply with Broward County requirements. While there, he only spoke with Mr. Olzak. He told Olzak that he had his own company, Huston Awning Company, and that he was working with Hurst so that a building permit could be obtained. He advised Olzak where he could be reached at Huston Awning Company in Broward County. Respondent filed a building permit application with the Broward County Building and Zoning Enforcement Division for the Olzak job. He made application in the name of his company, Huston Awning Company, and signed the application as the contractor. A building permit was issued. After issuance of the permit, two men came to the Olzaks' mobile home in a truck bearing no company name. They came to continue or complete the Olzak construction. Mrs. Olzak decided she did not like them and issued instructions that they would not be permitted to work on the project. No evidence was presented as to whether those men were employed by Hurst or by Huston. Thereafter, Mrs. Olzak refused to allow any further work to be done in completion of the contract. No final inspection has ever been made, since Mrs. Olzak has also denied access to the project to the inspector from Broward County. At no time has Respondent qualified Hurst Awning Aluminum Company, Inc., although no competent evidence was introduced to show that Respondent was employed by Hurst or had an interest in Hurst which might enable him to qualify that company. At the formal hearing, Mr. Olzak admitted Respondent told him he was with Huston Awning Company in Broward County, and Mrs. Olzak admitted Respondent told her he purchases all of the awnings he uses in his business from Hurst Awning Company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. DONE and RECOMMENDED this 3rd day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 3rd day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Justin E. Beals, Esquire Forte Plaza, Suite 808 1401 Brickell Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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.
Findings Of Fact Background On January 18, 1985, respondents Department of Transportation (DOT), gave notice through the Florida Administrative Weekly to qualified and interested engineering firms that it desired "letters of interest" from firms interested in providing construction, engineering and inspection (CEI) services on State Job Nos. 87170-3525 through 871703530. 1/ Those jobs related to the construction of two major double leaf bascule bridges across the Intracoastal Waterway "flyover" bridge connecting State Road 826 (N.E. 163rd Street), A1A and continuous roadway sections in northern Dade County, Florida. The project is more commonly known as the Sunny Isles Causeway project. After receiving and evaluating ten letters of interest, a DOT selection committee compiled a "short-list" of the four engineering firms considered most qualified and capable of performing the job. The short-list included petitioner, Craig A. Smith and Associates (petitioner or CAS), Beiswenger Hoch and Associates (BHA), Post, Buckley, Schuh and Jernigan (PBSJ), and Reynolds Smith and Hill (RSH). The four consulting firms were invited to a scope of services meeting on October 14, 1985. At that meeting DOT discussed in detail the services required on the project, answered all inquiries by the firms' representatives, and provided each firm with the scope of services package, which contains the technical specifications and plans. The firms were also given DOT's recommended staffing chart which identified the individuals required on the job and the anticipated man-months required from those personnel. According to DOT's recommended staffing plane the project would require approximately 105,070 man hours. It was emphasized that this staff chart would be used as a "critical" measuring tool to evaluate the proposed staffing plans submitted by the firms, but that the firms would have an opportunity to change the number of man hours if such were necessary. The four firms were told to review the specifications and plans and to submit separate technical and price proposals with DOT no later than November 12, 1985. As a part of the technical proposals the firms were required to estimate the man hours to be provided on the project, keeping in mind the 105,070 figure utilized by DOT in its plans and specifications. The man-hour estimates submitted by the four firms were as follows: BHA 66,011 CAS 74,800 RSH 83,214 PBSJ 97,328 After receiving the technical and price proposals an evaluation of the technical proposals was begun by personnel at both the Miami district office and the Tallahassee central office. The two reviews were conducted independently and without the benefit of the price proposal. The district review committee was made up of three district employees while the central office review was made by a construction engineer. Each firm was numerically ranked based upon the firm's (a) technical plan, (b) management plan, (c) project schedule, and (d) "other" factors. In determining the scores, the Miami and Tallahassee offices used an internal written DOT "procedure" which provides guidelines for evaluating a CEI technical proposal. After the grades were assigned, they were totaled and the firms were ranked according to their scores. The two grades were then averaged on a weighted average basis by DOT's Bureau of Contractual Services. The districts central office and weighted average scores were as follows: Firm District Central Office Average RSH 71 74 74 PBSJ 72 54 63 BHA 62 59 62 CAS 61 57 59 The firms were also ranked in accordance with their price proposals. The following price bids were made by the four firms: CAS $2,129,105 BHA 2,136,417 PBSJ 2,862,929 RSH 2,978,462 It is noted that DOT initially estimated its cost for the CEI services to be $3,033,873. All firms were below this estimate. The grades and comments were forwarded to the office of the state construction engineer. Under his supervision, the two sets of comments and scores were "merged" together into a single recommendation as to which firm was the most qualified to perform the work. This recommendation, which was in the form of a memorandum was then forwarded to the chief of the Bureau of Contractual Services on January 9, 1986. In his memorandum the state construction engineer pointed out that although RSH and PBSJ were both technically qualified, he favored RSH for the project. The memorandum also recommended that neither CAS or BHA "be considered" for the work. The adverse recommendation for CAS was based upon its "inadequate staffing" estimates (some 30,000 man hours less than the DOT estimate), and its proposed resident engineer not being registered as a professional engineer in Florida. A selection committee made up of DOT's secretary, assistant secretary and deputy assistant secretary met on February 10, 1986, to make a final selection. The state director of construction (Murray Yates) was also present for the purpose of giving his recommendation to the committee. In preparing his recommendations Yates reviewed public hearing documents and studies relating to the project, and analyzed the DOT evaluation data and the CEI proposals. He also had discussions with both the district and central office personnel who originally evaluated the proposals. Finally, he relied upon his own experience as the DOT design engineer for the project. Prior to their meeting the members were furnished copies of the staff comments and the technical and price proposals of the four firms. At the first meeting, it was agreed to postpone the decision until February 17, 1986, so that the staff could reevaluate the number of man hours needed on the project. As a result of the further staff study, DOT revised its estimated man hours required on the job from 105,000 to approximately 95,000. At the second meeting PBSJ was tentatively selected as the successful firm subject to the Federal Highway Administration's (FHA) approval. The latter approval was necessary since the project is federally funded and PBSJ did not have the lowest price proposal. According to committee notes, PBSJ was selected because of its "sound technical plan for the project," its familiarity "with basculate construction, having provided similar services on the Miami River crossing," "inadequate" staffing requirements having been proposed by CAS and BHA and their lack of experience on bascule construction, and because the top technical firm, RSH, did not propose a fee acceptable to the selection committee." On February 18, 1986, DOT advised petitioner by letter that it "was not selected to provide engineering services on the above referenced project." No reason was given for rejecting petitioner's proposal. However, DOT orally advised CAS that its rejection was based upon inadequate man hours and the lack of qualifications of CAS personnel. Further, in a letter to the FHA dated February 19, 1986, DOT noted that CAS had been rejected because (a) CAS "did not propose adequate manpower to satisfactorily perform the services," (b) its "staffing plan did not provide the expertise desired" for the project, and (c) CAS has no "demonstrated proven ability in the performance of CEI services for the construction of bascule bridges in Florida." The federal agency gave its approval of PBSJ's selection on a later undisclosed date. There was no published notice of the meetings on February 10 and 17, 1986, nor was specific notice given to the four firms. However, there was no intent to bar any persons from attending the meetings, and had any appeared, they would have been permitted to observe the meetings. There is no indication of record that CAS made any inquiry to DOT as to when such meetings would take place, or that it be given notice of any meetings. No formal minutes of the meetings were kept. In accordance with DOT procedures, CAS was allowed to attend a "settlement meeting" with DOT personnel after the bid protest was filed. Such a meeting gave CAS the opportunity to discuss its proposal and presumably to seek DOT to change its mind. However, DOT did not change its position, and this proceeding followed. The Project Requirements DOT required an outside consultant on this project for additional expertise and manpower. The CEI contract calls for the consultant to administer construction activity by inspecting the work of the contractor. By having the work inspected DOT insures that it will receive the type and quality of work necessary to satisfactorily complete the job. The Sunny Isles Causeway project is considered to be a major project by DOT and was characterized by its state director of construction as being an "extremely complex project." Among other things, it involves the construction of two bascule bridges. A bascule bridge is one that can be raised or lowered to allow boat traffic to pass underneath. The total project cost is approximately $24.4 millions and will require 1,365 calendar days (or almost four years) for completion. The six jobs and their respective contract numbers are the west bound roadway and approach (87170-3525), Casino Canal work (87170- 3526), fly over bridge and roadway (87170-3527), east bound roadway and approach (87170-3528), west bound bascule bridge (87170-3529), and east bound bascule bridge (87170-3530). Despite some assertions to the contrary, it is found that the construction of a bascule bridge is indeed complex in nature. In addition, the Sunny Isles project is unique in the sense that the contract calls for the existing bridge to be demolished and removed, and the new bridge to be placed in the same location. The existing foundation will be widened and incorporated into the foundation of the replacement bridge. Further some of the major utilities crossing the intracoastal waterway, such as the 48 inch force main, will remain in place during construction and cannot be disturbed or damaged. Finally the project is located in an affluent area of Dade County, and the contractor must be careful not to infringe upon adjacent private properties. Because of these features, the successful firm would be expected to have an experienced resident engineer, and other key personnel, who was familiar not only with bascule bridge construction, but also with DOT procedures regarding contractual claims, utility problems maintenance of traffic, and interfacing with the community on any other problems that might arise. DOT's Selection Process DOT is required by state law to "adopt administrative procedures for the evaluation of professional services, including, but not limited to capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business . . . and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with the foregoing legislative mandated DOT has informally adopted a document known as "Guidelines and Philosophy on Consultant Selections." These guidelines are set forth in an agency memorandum dated January 29, 1985, prepared by its then chief of Bureau of Contractual Services, John S. Berry, III. This memorandum has been disseminated to all district consultant coordinators. In general terms, the memorandum provides district personnel with guidelines to be used in grading the short-list firms in the various technical non-technical and management categories. More specifically, the graders are given factors to be considered and scores to be given when assessing a firm's technical ability and capability to meet time and budget requirements. Specific guidelines are also given for non-technical and non- management factors such as workload and past performance. Further guidelines are given to assess the firms' managerial skills. On October 20, 1983, DOT adopted Procedure No. 146-002 which governs the selection process for engineering consulting firms. However, the procedure has not been formally adopted as a rule. It covers everything from the initial DOT decision to use an outside consultant through the execution of the final contract. Among other things, the procedure sets forth in detail guidelines for (a) initial selection evaluation, including the duties of the requesting unit, contractual services officer and selection committee, (b) scope of services meeting, (c) technical review committee evaluations and (d) final selection evaluation. Once the proposals have reached the final selection stage, DOT procedure No. 146-002 requires that the contractual services office provide the final selection committee with a summary of all evaluations and grade point averages and the volume of work previously awarded to each firm. The committee must then review these summaries; the volume of work previously awarded the firms, the price proposals, and assign a rating factor to each firm. Although the contents of the memorandum and procedure have not been "formally" adopted as rules, there was testimony from DOT personnel explaining the purpose, meaning and contents of both. In the case at bar the agency adhered to its January 29, 1985 memorandum and procedure No. 146-002 in evaluating the various technical proposals. More specifically, the evaluation process considered each firm's capabilities personnel past record experience and other relevant factors. Prior to the selection of the successful firm DOT met with each firm including petitioner, at the scope of services meeting on October 14, 1985. At that meeting each firm was given the opportunity to ask questions, seek clarification on any ambiguous matter, and learn the specific needs of DOT. In addition it was emphasized to each firm that DOT placed special significance on the staffing plan that would be submitted by each firm. Finally, each step in the review and selection process was documented in writing by DOT, and such documents have been made available to petitioner and all other interested parties. These documents have been amplified on by DOT personnel through discovery and oral testimony at final hearing. DOT Concerns With CAS's Proposals DOT expressed several concerns with CAS's technical proposal, two of which were valid. First DOT was concerned that CAS did not propose adequate staffing and manpower for the jobs. This concern was based on staffing problems CAS is now experiencing on another pending CEI project, and the inadequate number of hours (74,800) proposed in CAS's technical plan for the Sunny Isles project. A failure to provide adequate staffing can create serious potential problems. These include inaccurate recordkeeping, loss of federal funding, contractual claims, insufficient personnel to perform all necessary tasks, a failure to adhere to public concerns, and the possibility of having to obtain another consulting firm to finish the job. In preparing the job specifications, DOT estimated that 105,070 man hours would be required from the CEI firm during the life of the project. After further evaluations this was reduced to approximately 95,000 man hours to eliminate around 10 percent of "fat" in the estimate. CAS estimated that only 74,800 man hours would be required, which was some 21 percent below DOT's revised estimate. Although the DOT resident engineer who initially prepared the 105,070 man hours estimate did not have the plans and specifications for the project when his original estimate was made, he relied upon his extensive experience and familiarity with CEI contracts in preparing his estimate. The engineer had estimated man hours on twelve other CEI contracts, utilized information from the project manager, reviewed available design data, and made a visit to the job site. These calculations were not subsequently reviewed in detail by any other DOT employee. However, the same procedure was followed by the engineer who prepared the estimate for PBSJ and he reached a comparable figure. The methodology and results thereof were not shown to be unreasonable or unreliable, and it is found that the estimates by DOT and PBSJ were both reasonable and appropriate. Three experienced CAS personnel were involved in preparing that firm's estimate, and they had the benefit of the plans and specifications in doing so. In contrast to the 173 hour manmonths used by DOT and PBSJ in their calculations, CAS "absorbed" 13 hours into its overhead and accordingly used a 160 hour man month in its calculation. It also included the project directors' man hours in its overhead cost. This results in CAS having a lower man-hour estimate for its staffing plan. Even so, CAS made no effort to determine the DOT methodology at the scope of services meeting, or to advise DOT that it was calculating man hours in a different manner. Given the low number of man hours, and CAS's problems on another pending job, DOT's concern was well- founded. DOT also expressed concern over the expertise of CAS's staff to be assigned to the job. Although the resident engineer had many years of experience as an engineer, he had just moved to Florida and had no prior construction experience in the State. There was no evidence that he was familiar with DOT procedures, which is of particular importance where a complex and sensitive project is involved. Moreover, the firm itself has never constructed a bascule bridge. Given these considerations, DOT properly found the expertise and qualifications to be less than that of the successful firm. Finally, at the initial stage of the review process, DOT personnel were concerned that CAS's proposed resident engineer was not a registered professional engineer in the State of Florida. However, this concern was unfounded since the engineer in question was granted his registration on February 4, 1986, which was prior to the final selection. The Successful Firm PBSJ is currently working on three CEI contracts for DOT. It has just successfully completed a CEI contract on a major bascule bridge project in downtown Miami which is comparable to the Sunny Isles project. The firm's proposed resident engineer has been involved on five bascule bridge projects in prior years. The firm's man-hour estimate of 97,328 was in line with DOT's revised estimate, and was prepared by the proposed resident engineer in a manner consistent with that used by DOT's estimator. Given the type and amount of experience on the part of PBSJ, and its adequate staffing plan DOT properly selected PBSJ as the consulting engineer on the project.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that a final order be entered awarding the contract on State Job Nos. 87170-3525--87170-3530 to Port, Buckley, Schuh and Jernigan, Inc., and that Craig A. Smith's bid protest be DENIED. DONE and ORDERED this 14th day of May 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of May, 1986.
Findings Of Fact The Petitioner, Eric M. George, was first hired by the Respondent on November 14, 1977 as an apprentice oiler on one of Respondent's cranes. The Respondent, Sims Crane Service, Inc., sells construction cranes and rents cranes and operators. On October 10, 1980, the Respondent terminated the Petitioner for refusal to put wax on a truck. The Petitioner was still an apprentice oiler at the time. At that time, Gene Hinson was equipment foreman. Petitioner admitted that he refused to wax the truck and admitted that Hinson was supervisor on the job. The reason that the Petitioner gave for refusing to wax the truck was that he had never worked on that truck and it was not "his" truck. The truck was, however, a truck owned by Petitioner's employer, Sims Crane Service, Inc. and Petitioner was being paid for waiting. There was no testimony that Petitioner had any other reason for refusal to do this work, except Petitioner's claim that Hinson had "singled him out." Hinson claimed that the Petitioner was to wax the truck and another employee was to polish it. Petitioner provided no other evidence for refusal to do the work he was ordered to do. Two days later, on October 12, 1980, Petitioner was rehired by the Respondent. On August 13, 1983, the Petitioner was again terminated by the Respondent. The Petitioner was terminated for failure at the end of the day to clean and grease the crane to which he had been assigned. Petitioner went to Thomas Sims to complain, stating that he had worked on three cranes that week. Ultimately, the Respondent rehired the Petitioner. The Respondent requires that crane operators grease and clean cranes before taking them out, or when returned at the end of a job. In 1983, the Respondent laid off a number of crane operators. A total of 14 crane operators were terminated in 1983. On December 6, 1983, seven crane operators, including the Petitioner, were laid off for lack of work. At the time of the December 1983 lay offs, Walter Mayhall was dispatcher for the Respondent, Gene Hinson was equipment foreman, and Thomas Sims was Chairman of the Board of Directors of Respondent. Sims, Mayhall, and Hinson met together to decide who should be laid off. A list of candidates for lay off was brought to Sims by Mayhall and Hinson. The list was determined by selecting those crane operators who were least dependable, had the poorest job performance, and who had the poorest record of maintaining equipment. Walter Mayhall, the dispatcher, recommended the Petitioner for lay off due to a number of work performance problems that he perceived. Mayhall received numerous phone calls from customers complaining about the quality of the Petitioner's work as a crane operator. Mayhall also observed that the Petitioner did not report for work on time in the morning, but was often late. Further, although most crane jobs were assigned in the morning, on those afternoons when Mayhall needed to contact the Petitioner by telephone to assign him to work for the next morning, Mayhall had difficulty reaching Petitioner. Gene Hinson, the equipment foreman, recommended the Petitioner for lay off primarily because he had perceived that Petitioner failed to regularly keep the cranes assigned to him clean, repaired, and lubricated. Seniority was not considered in determining who to lay off. There is no provision in any labor bargaining agreement pertaining to the Respondent and its crane operators that requires that seniority be considered in lay offs or recall from lay off. Of the seven persons laid off on December 6, 1983, three (Webb, Wooten, and Dixon) had been originally hired before the Petitioner, and three had been hired after the Petitioner. Respondent's Exhibit 3. All except Petitioner were white. Of the seven persons who were laid off on December 6, 1983, four (including the Petitioner) were subsequently reemployed in some capacity. For example, Wooten was rehired as a truck driver. The Petitioner asserts that he was not reemployed by the Respondent in February 1984 in Bradenton on a job for McCartney Masonry, Inc., and asserts that he worked for McCartney on September 1, 1983, as shown by Petitioner's Exhibit 4. However, Petitioners Exhibit 2, which is the union record, shows that the Petitioner worked in Bradenton on or about February 14, 1984. (The Petitioner presented no evidence to explain what the columns marked "in" and "out" mean on Exhibit 2, and the Hearing Officer cannot tell whether the exhibit shows the Petitioner at work on a job when he was marked "out" or "in"). From Petitioner's own Exhibit 2, however, it is clear that the Petitioner did work for Sims Crane Service in Bradenton in February 1984, and the relevant times in question seems to be the time marked on exhibit 2 where the Petitioner operated a "90T" crane for 4 hours as what appears to be "relief." The date of such work is unclear from other evidence as well. Respondent's Exhibit 1 places the date as February 10, 1984, and Respondent's own payroll records, Respondent's Exhibit 6, shows that Petitioner worked 3.5 hours in the week of February 14, 1984, and worked 15.0 hours the next week. While assigned to the job in Bradenton, the Petitioner bent the block forks on the crane and dropped a load of concrete blocks from the third floor of the building under construction. As a result of the accident involving the bent block forks, the Respondent terminated the Petitioner on February 17, 1984. The Petitioner admits that he bent the block forks, but claims that the bend was not enough to stop the job. The Petitioner also admits that Kuffermann brought new forks out to the job site, but says that that was not needed. Kuffermann testified that the Petitioner was forced to work too slow using the bent forks, and that the bent forks made his work unsafe due to spilling concrete blocks from a high level. During the time that Petitioner worked for the Respondent, he did not have a telephone number in his own name. He testified that he gave the telephone numbers of his 78 year old uncle and his 73 year old grandmother (two separate telephone numbers), and testified that they were normally home to answer their telephones. The Petitioner did not provide credible evidence to show that he received telephone messages from his uncle or grandmother or that he returned telephone calls immediately. Walter Mayhall, the dispatcher for Sims Crane Service, testified that he had continuous problems reaching the Petitioner by telephone. He did not testify that the persons mentioned above did not answer the telephone, but only that the delays in relaying messages to the Petitioner made it impossible for him to reach the Petitioner in the afternoons to schedule work for the next morning. The Petitioner testified that he was never assigned a crane on a long- term basis, and that white persons were given such favorable assignments. The Petitioner did not present comparative evidence of who such persons were. Mayhall testified that the Petitioner was difficult to reach by telephone and could not be relied upon to come to work on time. Although he tried to give the Petitioner a crane on a longer-term basis, ultimately the Petitioner was so unreliable that he could only assign the Petitioner to short jobs. The Petitioner testified that he was given less work than white crane operators. The Petitioner did not present evidence to support this testimony. Mayhall testified that the reason Petitioner worked less was because he was unavailable as described above. At the time of the hearing, the Petitioner stated that he had four homes, and resided at 1910 North Cypress and in Lakeland, at various times. He testified that he has no phone at 1910 North Cypress. The Petitioner made approximately $8,917 in 1982 and $14,204 in 1983 from Respondent. Sims Crane Service has experienced a loss of business in the last few years. It has reduced the number of cranes from 440 to 210, and the weekly payroll has been reduced from $300,000.00 to $70,000.00. In 1983, Sims Crane Service had about 100 employees in the Tampa branch of its operations, and had about 40 crane operators. In the southeastern portion of the United States where Sims Crane Service operates, it had about 250 employees and 115-120 crane operators in 1983. Except for the Petitioner, the Respondent apparently had perhaps one other black crane operator in 1983, and has no black crane operators now. The Respondent hires its crane operators through the union, and the union has about 1 percent of its members who are black, or about 15-20 out of 1500 members. The Chairman of the Board of Directors of Sims Crane Service, Inc., who was also the founder of the company, Thomas Sims, Sr., in front of other employees of the company, on one occasion said to the Petitioner: "You are the only nigger working for me." Sims admitted he said this to the Petitioner, but claimed he was only kidding. The Petitioner admitted that he had had to repay unemployment compensation previously paid to him during periods of time that he generally had been a crane operator for the Respondent. However, Respondent's proposed finding of fact that the Petitioner had applied for unemployment compensation for specific days in which he was actually employed by the Respondent must be rejected since the Respondent presented no evidence to correlate or explain the meaning of Respondent's Exhibit 6 and 7.
Recommendation For the reasons discussed above, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order that the Petitioner has failed to establish that the Respondent violated section 760.10(1), Florida Statutes, with respect to his lay off in December, 1983 and his termination in February, 1984. Respectfully submitted and entered this 23rd day of July, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. 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 23rd day of July, 1985. COPIES FURNISHED: William J. Corda, Esquire 620 Twiggs Street Tampa, Florida 33607 Eric M. George 1910 Cypress Street Tampa, Florida 33607 Donald A. Griffin Executive Director 325 John Knox Road Bldg., F - Suite 240 Tallahassee, Florida 32303
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative 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 this 23rd day of May, 1997
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact In response to petitioner's first request for admissions, respondent conceded that he has been licensed at all pertinent times as a registered general contractor, and that he now holds license No. RG 0016059. New Veep At one time, Alachua County building officials allowed Donald Russell, who owns Gator Aluminum, Inc. and serves as its president, to secure building permits for aluminum carport roofs and similar jobs that Gator Aluminum, Inc. performed in the county. Mr. Russell holds an aluminum specialty contractor's license. After June 5, 1986, however, the Alachua County authorities no longer allowed Mr. Russell's license to qualify his company for this work. As a result of this change, Mr. Russell sought out respondent Bruce Kirby, whom he had known for some 15 years. Mr. Kirby had spent "20 years around the aluminum business," but he worked for the University of Florida as a refrigerator mechanic at the time. Mr. Kirby became vice-president of Gator Aluminum, Inc., while continuing his employment with the University. He agreed to work for the company by reviewing applications for building permits; alerting Mr. Russell or Bob Baxter, another Gator Aluminum, Inc. employee, to any problems he saw with the plans; applying or authorizing his wife to apply and secure a building permit; and by looking over the work after it was done, before calling for inspection by a building official. For these services he was paid $50 to $100 for each job. Remodeling On March 12, 1987, Arthur and Doris Jones signed a contract with Gator Aluminum, Inc. to pour a concrete slab, install a carport roof, hang awnings, cover the roof of the main house with aluminum, and do miscellaneous other work at the Jones' residence in Archer, which is in Alachua County. Petitioner's Exhibit No. 1. Work began a week later. No building permit was posted before the concrete was poured, and none was obtained until April 6, 1987, five days after Bruce Kirby's wife applied for the permit on his behalf. Petitioner's Exhibit No. 2. Pouring the concrete slab before posting a building permit did not violate the building code, which requires no permit for such work. Only after the permit was posted did aluminum work begin. On May 11, 1987, construction completed, the Jones paid the balance due under the contract. Dry Clothes Wet Mrs. Jones was folding clothes in the new carport on May 18, 1987, when it began raining. Her husband had hardly finished remarking on the fact that none of the rainwater collecting on the carport roof was flowing through the downspouts when the roof creaked, then buckled, spilling gallons of water and damaging vehicles, lawn chairs and clay pots. Mrs. Jones escaped unscathed, but part of the roof hit Mr. Jones a glancing blow on the shoulder. The rain on the 18th was the first that anybody recalled since the carport's completion a week earlier. Experts agreed that the weight of the rainwater brought the roof down; water weighs eight pounds a gallon. But the evidence did not show why such a quantity of water accumulated on the roof. Perhaps the roof was installed without the requisite pitch, although a preponderance of the credible evidence put the vertical drop at nearly a half inch for every horizontal foot, which should have been sufficient. Debris left by workmen may have clogged the drains. No trees stood nearby. In the collapse, the carport roof pulled away from the fascia board to which it had been attached. In keeping with industry standards, the workmen had used three-inch screws in the rafter tails and three one-inch screws per pan elsewhere along the fascia board. The fascia board itself was old and riddled with dry rot, which careful inspection might have revealed, but the significance of this is unclear. Apparently, the three-inch screws pulled out of the rafters, which were sound. When Mr. Russell heard what had happened, he came promptly, and offered to replace the roof. Mr. and Mrs. Jones turned him down, however, and instructed him and all other employees of Gator Aluminum, Inc. to stay off the premises. Eventually, Gator Aluminum's insurer paid to replace the roof and for the damages the collapse had occasioned. Inspection and Supervision In the spring of 1987, Mr. Kirby's father-in-law was dying of leukemia up the country, and his own mother, who also lived out of state, had a heart attack. Even when he was in town, moreover, he was not accustomed to look over the work Gator Aluminum, Inc., performed under the authority of permits he obtained until aluminum mechanics, many of whom he had known for several years and in all of whom he had confidence, had finished the project. At no time before the roof collapsed had respondent Bruce Kirby ever set foot on the Jones job site. He never talked to Mr. Russell or anybody else about the job while it was in progress. Whether this lack of supervision contributed to the untimely demise of the carport roof was not clear from the evidence. In Mr. Kirby's experience and in the industry generally, a delay of a week or even much longer between completion of a job and the contractor's call for final inspection is not uncommon. Many jobs, including the job Gator Aluminum, Inc. undertook for the Jones, require only a final inspection. Nobody told Mr. Kirby that work at the Jones' house had finished. After Mr. and Mrs. Jones barred Gator Aluminum, Inc.'s employees from the premises, Mr. Kirby was no longer in a position to inspect the work to determine whether the job met building code requirements. He never called for a final inspection by the building official, although Mr. Russell asked that the roof be inspected, in December of 1987.
Findings Of Fact 8. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 25, 2010; the Amended Order of Penalty Assessment issued on May 24, 2010; the 2nd Amended Order of Penalty Assessment issued on August 6, 2010, and the Order Closing File issued on March 29, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Petition for administrative proceeding, the 2nd Amended Order of Penalty Assessment, and the Order Closing File served in Division of Workers’ Compensation Case No. 10-092-D1, and being otherwise fully advised in the premises, hereby finds that: 1, On March 25, 2010, the Department issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-092-D1 to LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION. 2. On May 10, 2010, the Stop-Work Order and Order of Penalty Assessment was served by certified mail on LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On May 24, 2010, the Department issued an Amended Order of Penalty Assessment. The Amended Order of Penalty Assessment assessed a total penalty of $247,379.84 against LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION. The Amended Order of Penalty Assessment included a Notice of Rights wherein LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On May 27, 2010, the Amended Order of Penalty Assessment was served by certified mail on LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On June 17, 2010, LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION filed a request for Administrative Review (“Petition”), requesting review of the Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on July 9, 2010, and the matter was assigned DOAH Case No. 10-4977. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On August 6, 2010, the Department issued a 2nd Amended Order of Penalty Assessment. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $235,761.76 against LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein LEWIS ARMSTRONG, D/B/A LEWIS ARMSTRONG CONSTRUCTION was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. A copy of the 2" Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 7. On March 29, 2011, the Administrative Law Judge issued an Order Closing File. The Order Closing File was issued in response to a Motion to Deem Matters Admitted for failure to answer discovery requests, and a Renewed Motion to Deem Matters Admitted. A copy of the Order Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue The issue in this case is whether Respondent, Frank J. Polacek, V, committed the violations alleged in an Administrative Complaint filed with Petitioner March 15, 2006, DBPR Case Nos. 2005-036101, 2005-035843, 2004-056690, 2005- 045647, and 2005-034560, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Ch. 689, Fla. Stat. Respondent, Frank J. Polacek, V, is and has been at all times material hereto a licensed certified general contractor in Florida. Mr. Polacek's license number is CG C059603. At all times material hereto, the status of his license has been "Current, Active." At all times material, Mr. Polacek was certified as doing business as Endeavor Development, Inc (hereinafter referred to as "Endeavor"), a Florida corporation. Endeavor possessed a certificate of authority as a qualified business organization. The Department has jurisdiction over Mr. Polacek's license. Dalton Design, Inc.; Department Case No. 2004-056690. On June 29, 2004, Terri Ferrando, owner of Dalton Design, Inc. (hereinafter referred to as "Dalton Design"), entered into a contract with Mr. Polacek, acting as Endeavor (hereinafter referred to as the "Dalton Design Contract"). Pursuant to the Dalton Design Contract, Mr. Polacek agreed to renovate a bathroom of an apartment owned by a client of Dalton. The apartment is located in Delray Beach, Florida. Dalton Design agreed to pay Mr. Polacek $15,871.00 in exchange for his services. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Dalton Design Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Dalton Design Contract, Dalton Design paid $7,935.50, or 50 percent of the total contract price, to Mr. Polacek as a deposit. The deposit was paid via check dated June 29, 2004. A small of amount of work, consisting of demolition, was commenced on the Dalton Design Contract by Mr. Polacek. The demolition work was the only work performed by Mr. Polacek. The work performed by Mr. Polacek was significantly less than the amount he had been paid by Dalton Design. On or about May 16, 2005, Mr. Polacek abandoned the Dalton Design Contract when he wrote a letter to Ms. Ferrando and Dalton Design. Mr. Polacek stated the following in the letter: Please acknowledge this written notice that as a result of hurricane frances we will be unable to provide Dalton designs [sic] or their related customers with construction services this will be effective immediately and a partial refund of construction moneys will be refunded within one week. The refund was never made, despite efforts of Ms. Ferrando to contact Mr. Polacek by telephone, in writing, and in person. The Dalton Design Contract provided that "August 20, 2004, is the last day for work, and everything must be completed at that time." Because Mr. Polacek failed to perform work on the project and in light of his termination letter, Ms. Ferrando arranged to have the project completed by another contractor. That contractor performed the same work formerly agreed to by Mr. Polacek. The total costs of completing the Dalton Design Contract work was $16,877.33 and was paid by Dalton Design. Damages sustained by Dalton Design as a result of Mr. Polacek's abandonment of the Dalton Design Contract include the $7,935.50 deposit plus the amount of $1,006.33 paid to complete the project in excess of the original contract price ($16,877.33 minus $15,871.00) or a total of $8,941.83. The Department incurred costs investigating Case No. 2004-056690 of $616.88. The evidence failed to prove that Mr. Polacek failed to obtain the necessary permits or inspections for the work performed on the Dalton Design Contract. Palm Beach Biltmore Condominium Association; Department Case No. 2005-045647. In August 2004, Richard Brooks, the manager of the Palm Beach Biltmore Condominium Association (hereinafter referred to as the "Biltmore"), entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Biltmore Contract"). The Biltmore Contract provided, in pertinent part, that Mr. Polacek would provide the following services to Biltmore: Propose to remove and replace two matching exterior access ladders to elevator service shafts. Remove all existing steel support brackets and prepare new surface for the installation of the new aluminum ladders. . . . Provide and install new 16' custom fabricated alluminum [sic] ladders same locations with no powder coated finish. In exchange for the foregoing services, Biltmore agreed to pay Mr. Polacek $5,000.00, "50% of the total sum due upon agreement; 50% of total sum due promptly upon completion." Biltmore paid Mr. Polacek $2,500.00 via check on August 18, 2004. Despite having been paid half the Biltmore Contract price, Mr. Polacek performed none of the services he had agreed to perform. Mr. Brooks made several efforts to communicate with Mr. Polacek by telephone and mail, but was unsuccessful. Mr. Polacek abandoned the Biltmore Contract for well in excess of 90 days. Mr. Polacek failed to refund any amount of the $2,500.00 down-payment paid to him by Biltmore. Thus Biltmore suffered damages of $2,500.00. The Department incurred costs investigating Case No. 2005-045647 of $266.33. A. Carter Pottash; Department Case No. 2005-034560. On August 9, 2004, A. Carter Pottash, M.D., entered into a contract with Dr. Polacek, doing business as Endeavor (hereinafter referred to as the "Pottash Contract"). The Pottash Contract provided, in pertinent part, that Mr. Polacek would remodel three condominium apartments owned by Dr. Pottash, converting the three apartments into one living space. In exchange for his services Mr. Polacek agreed to provide under the Pottash Contract, Dr. Pottash agreed to pay Mr. Polacek $170,821.00, "50% of the total due upon agreement; 35% of total sum due at 50% of completion; 15% of total sum due upon completion." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Pottash Contract. See § 489.1425(a), Fla. Stat. As contemplated by the Pottash Contract, Dr. Pottash paid Mr. Polacek a total of $155,322.50, or 90 percent of the total contract price, between August 19, 2004, and October 22, 2004. The payments were made via check and wire transfer. Mr. Polacek commenced work on the Pottash Contract by performing demolition work, installing drywall, and performing some but not all of the finishing work. After November 1, 2004, no work was performed on the Pottash Contract by Mr. Polacek. Between November 1, 2004, and January 5, 2005, having invested a significant amount of money in the project, Dr. Pottash made numerous unsuccessful attempts via telephone, personal visits, and in writing to contact Mr. Polacek. As a result of the work Mr. Polacek did perform, he incurred financial obligations to sub-contractors. Some of the obligations were not paid by Mr. Polacek, resulting in three Claims of Liens being filed against Dr. Pottash's property. The liens, each one for $2,166.50, were filed by T & F General Contracting, Inc. (hereinafter referred to as "T & F"). T & F had performed some of the finishing work on the project. On or about March 22, 2005, Mr. Polacek abandoned the Pottash Contract when he wrote a letter to Dr. Pottash, in which he stated the following: Please acknowledge this written notice that ENDEAVOR DEV. INC. will no longer be performing any construction related services to you at the Palm Bch. Biltmore. By law I am bound to cancel all my permits or transfer them to your new contractor. I will inform the Palm Bch. Bldg. Dept. in writing. I am truley [sic] sorry for the problems we have had between us. I want to do whatever is possible to resolve this situation in your favor. Please respond if you are willing. Mr. Polacek did nothing to resolve his failure to perform. Nor did he make any refund of the moneys paid to him under the Pottash Contract, which exceeded the amount paid by Dr. Pottash to Mr. Polacek. Due to Mr. Polacek's failure to perform, Dr. Pottash had to hire other contractors to complete the project. He did so, acting as his own general contractor, completing the project in essentially the same manner contemplated by the Pottash Contract. Dr. Pottash incurred costs to complete the Pottash Contract totaling $90,280.77. These costs were paid by checks ($58,716.48) and credit card ($31,564.29). Dr. Pottash also paid a total of $3,653.50 to remove one of the three T & F liens. The total cost of completing the Pottash Contract incurred by Dr. Pottash was $93,934.27. Damages sustained by Dr. Pottash as a result of Mr. Polacek's abandonment of the Pottash Contract total $78,435.77, calculated as follows: Total Contract Price: $170,821.00 Amount Paid: 155,322.50 Amount To Be Paid: $ 15,498.50 Amount Paid To Complete: $ 93,934,27 Amount To Be Paid: 15,498.50 Total Financial Harm: $ 78,435.77 The Department incurred costs investigating Case No. 2005-034560 of $565.61. Alexander Rentz and Diane Jackson; Department Case No. 2005-036101. On January 13, 2005, Alexander Rentz and Diane Jackson, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Rentz/Jackson Contract"). The Rentz/Jackson Contract provided, in pertinent part, that Mr. Polacek would make repairs to their Lake Park, Florida, home caused by hurricane damage. In exchange for Mr. Polacek's services, Mr. Rentz and Ms. Jackson agreed to pay him $26,346.10, "1/3 upon agreement/ 1/3 at 50%/ 1/3 at complete." On January 14, 2005, an addendum to the Rentz/Jackson Contract was executed by Mr. Polacek whereby he agreed to remove and replace carpeting and padding. In exchange for these services, Mr. Rentz and Ms. Jackson agreed to pay an additional $1,520.00. Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Rentz/Jackson Contract. See § 489.1425(a), Fla. Stat. Mr. Rentz and Ms. Jackson paid Mr. Polacek a total of $13,933.05 via three checks issued on January 13, 2005, February 1, 2005, and February 11, 2005. Mr. Polacek commenced work on the Rentz/Jackson Contract by partially taking down a wooden fence on the property. After taking down the fence, no work, not even the removal of the fencing material, was performed on the Rentz/Jackson Contract by Mr. Polacek. On February 22, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Mr. Rentz and Ms. Jackson in which he abandoned the Rentz/Jackson Contract, stating: Please acknowledge this written notice. Since we have not heard from you w/ a decision on whether to proceed w/your job we can only assume you want to terminate the contract. Out last conversation on 2-15-05 Ms. Jackson was irate and threatened to sue our Co. if we could not produce roofing shingles. All supply Co's are on a back log and shingles are being allocated. We do not controll [sic] the production of shingles and we warned you of this problem at the start of our engagement. Fax us a letter of termination and the total of all $ will be returned in 30 days. Mr. Polacek's explanation concerning the unavailability of shingles, even if it had been supported by evidence at the final hearing, which it was not, fails to explain why none of the other work called for in the Rentz/Jackson Contract was performed. Mr. Rentz and Ms. Jackson did not at anytime terminate their contract. Instead, they made numerous efforts to get Mr. Polacek to carry out the terms of their agreement. Efforts to discuss the matter with Mr. Polacek were ultimately unsuccessful. Due to Mr. Polacek's failure to perform, Mr. Rentz and Ms. Jackson were required to hire another contractor, Built Right Construction, Inc. (hereinafter referred to as "Built Right"), to complete the project. The same services contemplated by the Rentz/Jackson Contract were ultimately performed by Built Right. The contract price for Built Right's services, including contract addendums, totaled $33,293.95. This amount was paid via checks by Mr. Rentz and Ms. Jackson. Damages sustained by Mr. Rentz and Ms. Jackson as a result of Mr. Polacek's abandonment of the Rentz/Jackson Contract totaled $19,360.90, calculated as follows: Total Contract Price: $27,866.10 Amount Paid: 13,933.05 Amount To Be Paid: $13,933.05 Amount Paid To Complete $33,293.95 Amount To Be Paid: 13,933.05 Total Financial Harm: $19,360.90 54. The Department incurred costs investigating Case No. 2005-036101 of $457.00. The evidence failed to prove that Mr. Polacek failed to apply for any permits required by the Rentz/Jackson Contract or that Endeavor was not in compliance with fictitious-name statutes. Nancy Sarro; Department Case No. 2005-035843. On April 17, 2005, Nancy Sarro, entered into a contract with Mr. Polacek, doing business as Endeavor (hereinafter referred to as the "Sarro Contract"). The Sarro Contract provided, in pertinent part, that Mr. Polacek would remodel the Sarro residence located in Jupiter, Florida. In exchange for Mr. Polacek's services, the Sarros agreed to pay Mr. Polacek $23,919.75, "50% of total sum upon agreement; 25% of total sum at 50% complete; 15% of total sum at 75% complete; 10% of total sum at 100% complete." Mr. Polacek failed to include notification of the existence and availability of the Construction Industry Recovery Fund in the Sarro Contract. See § 489.1425(a), Fla. Stat. Ms. Sarro paid Mr. Polacek a total of $11,039.87, or 46 percent of the total contract price, via check issued April 17, 2005. Mr. Polacek commenced work on the Sarro Contract by demolishing a small wooden deck at the rear of the Sarro residence and removing the front door of the residence, leaving the residence without a front door. After taking performing the foregoing work, no further work was performed on the Sarro Contract by Mr. Polacek. On May 16, 2005, after efforts to get Mr. Polacek to return to the job failed, Mr. Polacek wrote a letter to Ms. Sarro in which he abandoned the Sarro Contract, stating: Please acknowledge this written notice that Endeavor Dev. Inc. will no longer be providing construction services to you at . . . . My attorney will contact you to discuss the matter of our deposit. Do not attempt to contact Ms. Jessica Jolley or her family members regarding this matter. They are going to press charges against you for harassment. Endeavor Dev. Ind. Has had no in-tent [sic] to defraud or abandone [sic] your job and Ms. Jolley is not an employee of the Co. nor did she recieve [sic] anymoneys from you so please leave my girlfriend out of this matter. I will be contacting you via my attorney. Ms. Sarro made attempts to contact Mr. Polacek, but was unsuccessful. At no time, however, did Ms. Sarro abandon or otherwise attempt to terminate the Sarro Contract. Mr. Polacek subsequently sent a second letter to Ms. Sarro promising that the money paid as a deposit on the Sarro Contract would be refunded. Mr. Polacek did not, however, return any moneys to Ms. Sarro or complete any further work on the Sarro Contract. Damages sustained by Ms. Sarro as a result of Mr. Polacek's abandonment of the Sarro Contract totaled $11,039.87. The Department incurred costs investigating Case No. 2005-035843 of $368.76. Incompetency or Mismanagement in the Practice of Contracting. Mr. Polacek caused damages on the five contracts at issue in this case totaling $120,278.37. He did so without explanation to the individuals for whom he had contracted with.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Frank Joseph Polacek, V, committed the violations alleged in Counts I, IV through VII, IX through XII, and XV through XXV of the Administrative Complaint; Dismissing Counts II, III, VIII, XIII, and XIV of the Administrative Complaint; and Imposing an administrative fine in the total amount of $26,000.00; requiring that Mr. Polacek pay restitution on the five contracts equal to the amount of damages found in this Recommended Order; requiring that Mr. Polacek pay $2,275.58 as the costs of the investigation and prosecution of this matter; and that his license be permanently revoked. DONE AND ENTERED this 20th day of September, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 20th day of September, 2006. COPIES FURNISHED: Jeffrey J. Kelly, Esquire Department of Business and Professional Regulation Post Office Box 1489 Tallahassee, Florida 32302 Frank Joseph Polacek, V 5245 Center Street Jupiter, Florida 33401 G. W. Harrell, Executive Director Construction Industry Licensing Board 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 32399-2202
Findings Of Fact At all times relevant hereto, respondent, Raymond T. Grady, Jr., held registered specialty contractor license number RX DO32138 issued by petitioner, Department of Profession Regulation, Florida Construction Industry Licensing Board. 1/ According to the official records of petitioner, Grady was first licensed in 1977. He later qualified F & L Contracting, Inc., a contracting company doing business in Palm Bay, Florida, in February, 1982. The 1983 annual report filed by F & L Contracting, Inc., with the Department of State reflected that Grady was secretary-treasurer and resident agent of the corporation while a Fred James Henderson served as president. Grady continued to qualify F & L Contracting, Inc. until February 27, 1984, when he notified petitioner that he was no longer its qualifying agent. Presently, his license is on an inactive status. Fred James Henderson did business under the name of F & L Contracting, Inc., F & L Contractors, Inc. and F & L Construction, Inc. All had the same street address and telephone number and were the same for all practical purposes. Only F & L Contracting, Inc. was qualified by Grady with the State. On or about August 25, 1983, Lyman and Dawn Crowshaw of 356 Holiday Park, Palm Bay Florida, entered into a contract with F & L Contractors, Inc., to have a utility room added to their residence for a price of $5,835. The contract was negotiated by Henderson. When the contract was signed, Henderson gave the Crowshaws his business card which reflected the name "F & L Contracting, Inc.," and had the same telephone number and address as F & L Contractors, Inc. Under the agreement, Lyman Crowshaw gave F & L Contractors, Inc. a check in the amount of $1,945 as the first of three payments for the work. The check was deposited into the bank account of F & L Contracting, Inc., the company which Grady had qualified. Because Henderson held no license from the State, he could not pull job permits in the City of Palm Bay. Therefore, it was necessary for Grady to sign all applications and pick up the permits on behalf of Henderson. In this regard, the city building officials perceived Grady to be the individual who qualified Henderson to do business as a contractor. For this reason, the official notified Grady that no permit could be pulled on the Crowshaw job because of a setback restriction on Crowshaw's property. When Crowshaw learned of this, he immediately requested a refund of his money, but Henderson did not oblige. After the Crowshaws sent a letter to F & L Contracting, Inc. on November 18, 1983 demanding payment, and their attorney did the same on January 4, 1984, Henderson and his wife finally executed a promissory note on January 11, 1984 promising to pay the Crowshaws $500 per month plus 18 percent interest until the $1,945 was repaid. Henderson signed the note individually and as president of F & L Contractors, Inc. Mr. Crowshaw received one $500 payment on January 21, 1984 from Henderson. After he received no other payments, Crowshaw filed a complaint against Grady in an effort to recover his money. That prompted the instant proceeding. The Crowshaws and Grady had never seen each other prior to the final hearing. The Crowshaws did have two telephone conversations with someone who represented himself to be Grady in late 1983 and early 1984, and in those conversations, Grady assured them that he would get Henderson to repay the money owed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(g), Florida Statutes, and that his license be suspended for one year, unless Grady obtains a signed release from the Crowshaws indicating restitution has been made. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DOANLD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
