The Issue The issues for determination are whether Respondent, by holding himself out as an expert witness and testifying as an expert witness, engaged in the unlicensed practice of engineering.
Findings Of Fact Respondent is a 1993 graduate of the University of Florida with a Bachelor of Science in electrical and computer engineering and is pursuing a Ph.D. in safety engineering from Kennedy Western University. Respondent is not a licensed professional engineer in Florida. Respondent is a member of three professional organizations: 1) Institute of Electrical and Electronic Engineers (IEEE); 2) Society of Automotive Engineers (SAE); and 3) Accident Reconstruction Network (ARC). IEEE and SAE require a degree in engineering for membership, but do not require professional licensure. Generally, professional organizations for engineers require an engineering degree from an accredited engineering program, but do not require licensure as a condition of membership. Thus, membership in a professional organization such as IEEE does not tend to indicate that a member holds a license to practice engineering. No competent evidence was presented that Respondent uses engineering designations, titles and devices tending to indicate that Respondent holds an active license as an engineer in Florida. Respondent has gained experience in the areas of mechanical and electrical engineering through education, and training. He holds himself out as experienced and qualified to provide expert witness services in many fields related to engineering basic principles. Respondent gained much of his engineering experience in positions that are exempt from the licensure requirement. Respondent does not hold himself out as a professional, or licensed engineer. Graduates of accredited engineering programs are commonly referred to as “engineers” by universities and potential employers. Respondent purports to possess expertise as a forensic consultant, accident reconstructionist, and forensic computer expert. Respondent does not hold himself out as an “engineer” or a “licensed” or “professional” engineer. Attorney Debra Wall (“Wall”) retained Respondent to provide expert witness services in the Tennessee Case. In providing such services, Respondent never held himself out as a licensed engineer or as a professional engineer. In seeking to obtain an expert witness, Wall did not initially put any weight on professional licensure as a requirement to provide expert testimony. Respondent generated two written reports and was deposed regarding these reports in the Tennessee Case. Respondent’s expert witness testimony consisted only of giving opinions based on observation, not on engineering theory or testing. Respondent performed no calculations in support of his opinions in the Tennessee Case. Respondent’s opinions were directed to a discrete litigation event – the Tennessee Case - and do not implicate the health, safety, or welfare of the public in general, or to the citizens of Florida in particular. Engineering analysis consists of complex scientific analysis of collected data or material. In a case like the Tennessee Case, engineering analysis would consist of the performance of scientific discovery based upon mathematics, physics, or engineering and/or a statistical evaluation of seatbelts for the make and model of automobile in question to determine seatbelt-related failure modes and rates. Respondent’s written reports in the Tennessee Case do not contain engineering analysis; rather, they are based only upon observation and opinion. Respondent’s opinions in the Tennessee Case do not constitute engineering analysis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 29th day of March, 2006. COPIES FURNISHED: Bruce A. Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 William H. Hollimon, Esquire Moyle, Flanigan, Katz, Raymond, White and Krasker, P.A. The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267
Findings Of Fact The Respondent is an agency of the State of Florida. The Respondent has adopted a "Departmental Forms Index", which, if it ultimately becomes effective, would be codified into Chapter 10-2.80, Florida Administrative Code. The proposed rule purports to set out a list of all forms used by the Respondent in its dealings with the public. By its terms, the rule will not be published in the Florida Administrative Code. Instead, the index would be referenced in the Code as follows: The Departmental Forms Index is hereby incorporated by this rule and made a part of the rules of the Department. Copies of this document and any amendments thereto are available at no more than cost pursuant to the Florida Administrative Code 10-2 and may be obtained from the Office of Assistant Secretary for Administrative Services. The complete Departmental Forms Index would thus not appear in the Florida Administrative Coda. Copies of the index could be obtained from the Department by request at a cost of ten cents per page. The Index would not otherwise be available to members of the public, and no general distribution of the proposed rule will be made. The Petitioner, Norma Richardson, is a recipient of benefits under the "Aid to Families with Dependent Children" program and the food stamp program. Both of these programs are administered by the Respondent. Forms are routinely used in the Respondent's dealings with the Petitioner Richardson. Forms are utilized to advise her of any action intended by the Respondent, to solicit information, to apply for further benefits, and for many other purposes. As a recipient of benefits under the programs, the Petitioner Richardson has an interest in having the Forms Index available to her. If the Forms Index were published in the Florida Administrative Code she could obtain access to it at various libraries. If the Index is published by reference, obtaining access to it would be more difficult, and, could cost her ten cents per page. The Petitioner Florida Project Directors Association is an association composed of the directors of legal services programs in Florida. The Association has represented its members in this proceeding. The Association, and its members, are subscribers to the Florida Administrative Code. The Association's members represent many persons in connection with welfare disputes with the Respondent. The Departmental Forms Index contains forms which the Association's members would need to utilize in representing its clients. If the Index were published in the Florida Administrative Code, the Association's members would have the Index available to it, and any amendments to the Index would regularly be distributed. If the Index is published only by reference, the Associations members would need to purchase copies from the Respondent, and would not regularly receive amendments without making specific requests therefor and paying for them. It is not a matter of mere speculation that the Association's members will be representing clients who have disputes with the Respondent. One of the Association's members, Legal Services of Greater Miami, Inc., employs forty lawyers and several paralegals, and has represented welfare recipients in many cases.
The Issue Whether Respondent violated Section 112.3143(3), Florida Statutes, by voting on September 7, 2000, September 21, 2000, October 19, 2000, November 30, 2000, and December 21, 2000, as a member of the Palm Beach Gardens City Council on certain matters affecting the Mirasol development project when Respondent's homebuilding company was engaged in discussions with the master developer of the project concerning the company's participation in the project, as alleged in the Order Finding Probable Cause, and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Joint Prehearing Stipulation5: Each of the "Sabatello companies" referred to in the parties' Stipulation of Fact 3 was wholly owned by Respondent and his brothers Paul, Theodore, and Michael Sabatello, with each of the four brothers owning an equal (25%) share of the company. Of these companies, only one, Sabatello Development Corporation IV (SD IV) was involved in the Mirasol Project. SD IV has been in continuous existence since its formation in or around the 1980's. It is a Subchapter S corporation. As such, its profits are passed through to its four shareholders, Respondent and his three business associate- brothers, in equal amounts. As president of SD IV, Respondent "oversees all [of its] functions." Craig Perna, the Taylor Woodrow "representative" mentioned in the parties' Stipulation of Fact 5, had "overall responsibility for every aspect of the [Mirasol] development" project, including the "selection of builders." The builder selection process started with Mr. Perna getting the names of "prominent builders in the Palm Beach Gardens market" having "excellent reputation[s]" and then contacting them to inquire as to their interest in participating in the Mirasol Project. Respondent was among those Mr. Perna contacted. He was contacted (by telephone) in mid-May of 2000. At that time, he advised Mr. Perna he was "very interested" in having his company considered for selection as a builder in Mirasol. As a member of the Palm Beach Gardens City Council, Respondent had reviewed documents submitted by Taylor Woodrow to obtain PCD approval for the Mirasol Project. As a result, he was familiar with the project and recognized its potential. At the time, residential "golf developments," like the Mirasol Project, sold out quickly and were "very profitable." Builders competed vigorously for the relatively limited opportunities that were available to build in these developments. Having the upper hand over builders because of this competitive landscape, Taylor Woodrow, as the master developer of the Mirasol Project, did not have to engage in "give [and] take with any builder" concerning contractual matters. As Mr. Perna put it in his deposition testimony, "You either wanted to participate or you didn't under my terms, period, the end." Respondent's company, SD IV, was one of at least ten or builders vying to be selected to participate in the Mirasol Project. Over a period of approximately eight months (from mid- May 2000, to mid-January 2001), Taylor Woodrow requested and obtained from SD IV and from the other would-be participants in the project (Other Builders) information and documents in order to evaluate these builders' qualifications for selection. The requests directed to SD IV were extensive and concerned such matters as the company's financials, products, pricing, form contracts, sales operations, customer service department, past accomplishments, current capacity, and "appetite for future work." Taylor Woodrow also wanted to see floor plans and architectural drawings. These requests were made both in writing and verbally. Wanting to maximize its chances of being selected, SD IV provided Taylor Woodrow with "whatever [was] ask[ed] for." Initially, Respondent was SD IV's "sole contact person" in its dealings with Taylor Woodrow. In this capacity, he engaged in "numerous discussions" with Taylor Woodrow representatives regarding SD IV's possible participation in the Mirasol Project. On or about May 17, 2000, Taylor Woodrow sent to Respondent and the Other Builders copies of "artist's drawings of potential elevations of homes that would be built in Mirasol," accompanied by a cover letter requesting feedback from the would-be project participants in the form of "more specific" drawings, consistent with the renderings, showing what they would build if selected. These "more specific" drawings were to be reviewed by the Mirasol Architectural Review Committee to determine whether or not they were acceptable. In a conversation that Respondent had with Mr. Perna following his receipt of this May 17, 2000, correspondence, Respondent stated, in reference to the elevations depicted in the "artist's drawings" Taylor Woodrow had provided, that "they were within the basic parameters" of what SD IV intended to build if selected. SD IV subsequently prepared and submitted to Taylor Woodrow the "more specific" drawings that had been requested. "[M]ost of the drawings" were "very similar" to drawings that SD IV had used in other developments. The first vote that Respondent allegedly unlawfully cast was on Resolution 71, 2000 at the Palm Beach Gardens City Council September 7, 2000, meeting. As the summary statement on its first page reflects, Resolution 71, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels 1 through 5 with a total of 114 zero lot line single-family home lots and 85 single-family custom home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date. The minutes of the September 7, 2000, Palm Beach Gardens City Council meeting reflect that Respondent and City Attorney Rubin, among others, were present and that, with respect to Resolution 71, 2000, in pertinent part, the following occurred: Resolution 71, 2000- Principal Planner Jim Norquest presented the project. The City Council was assured by the petitioner [Taylor Woodrow] that an architectural committee with proper requirements had been established. Ann Booth, Urban Design Studio, agent for the petitioner, described the project. Landscaping themes for different parcels were described by the landscape architect. Councilman Clark made a motion to approve Resolution 71, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. The next allegedly unlawful votes that Respondent cast were on Resolutions 72, 2000 and 73, 2000 at the Palm Beach Gardens City Council September 21, 2000, meeting. As the summary statement on its first page reflects, Resolution 72, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels E, F and G with 35, 39, and 67 zero lot line single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for five waivers to allow for reductions in the side interior setback, an increase in lot coverage, the placement of pools, screen enclosures and accessory structures within the side interior and rear setbacks, and a reduction in the minimum lot width requirement; providing for conditions of approval; and providing for an effective date. As the summary statement on its first page reflects, Resolution 73, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan of development for Parcels H and I with 56 single-family custom home lots and 79 zero lot line single-family home lots within the Golf Digest (Mirasol) PCD, located along PGA Boulevard and as more particularly described herein; providing for six waivers to allow for reductions in the side interior setback, street side setback, an increase in lot coverage, a reduction of lot width, and the placement of pools, screen enclosures, and accessory structures within the side interior and rear setbacks; providing for conditions of approval; and providing for an effective date. The minutes of the September 21, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among others, was present and that, with respect to Resolution 72, 2000 and Resolution 73, 2000, in pertinent part, the following occurred: Resolution 72, 2000- Principal Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described recreational open space proposed by the petitioner. Petitioner was requested to include in the design a tot lot, pool, two tennis courts, and a building, for which staff was directed to draft language for a condition of approval. The language was read into the record during consideration of Resolution 73, 2000: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 72, 2000 with the additional condition as read into the record by petitioner. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. Resolution 73, 2000- Principal Planner Jim Norquest presented the project. Ann Booth, Urban Design Studio, agent for the petitioner [Taylor Woodrow], described the proposed homes and landscaping. Petitioner agreed to provide a gazebo or tot lot on Parcel H, and to allow continued access to the open space at the entrances by residents on both sides of the road. Petitioner and staff agreed to the following condition of approval, which was read into the record by petitioner: The recreation center south of parcel F shall include a swimming pool, two tennis courts, a tot lot, and a recreation building unless different amenities are approved by City Council at site plan review. Councilman Clark made a motion to approve Resolution 73, 2000 with the additional condition as read into the record by petitioner and with the understanding placed on the record by petitioner regarding the open space at the entrances to parcels H and I. Vice Mayor Jablin seconded the motion, which carried by unanimous 5-0 vote. The "waivers" that were granted by Resolutions 71, 2000, 72, 2000, and 73, 2000 were from the requirements of the Palm Beach Gardens Code that Taylor Woodrow, or whichever builder(s) it subsequently selected to build on the affected parcels, would otherwise have to meet. The next vote of Respondent's that has been called into question is his vote at the October 19, 2000, Palm Beach Gardens City Council meeting on Resolution 92, 2000. As the summary statement on its first page reflects, Resolution 92, 2000 was: A resolution of the City Council of the City of Palm Beach Gardens, Florida, providing for approval of a site plan for a[n] 8,046 square foot fire rescue and police substation within the Golf Digest (Mirasol) PCD, located 1/4 mile north of PGA Boulevard on the east side of Jog Road and as more particularly described herein; providing for waivers; providing for conditions of approval; and providing for an effective date. This "site [had to] be completed and dedicated prior to the issuance of [any] certificate of occupancy for any dwelling units in the Golf Digest [Mirasol] PCD" or the "opening of a golf course" in the PCD. The minutes of the October 19, 2000, Palm Beach Gardens City Council meeting reflect that Respondent, among others, was present and that, with respect to Resolution 92, 2000, in pertinent part, the following occurred: Resolution 92, 2000- . . . . Senior Planner Ed Tombari reviewed the petition. A representative of Gee & Jenson answered questions regarding the project and Ann Booth, Urban Design Studio, spoke on behalf of the petitioner [Taylor Woodrow]. Councilman Clark made a motion to approve Resolution 92, 2000. Vice Mayor Jablin seconded the motion, which carried by unanimous 3-0 vote. On November 3, 2000, Elaine Appleyard, a legal assistant with Taylor Woodrow, sent the following e-mail to Taylor Woodrow's Aaron Chorost, who was the chief financial officer for the Mirasol Project: Good morning Aaron - we're finalizing a redline on the Builder Agreement and need two items clarified: Is the intention to have just one closing on all of the lots? Will this particular builder be building anywhere else on the property other than Parcel 4? Mr. Chorost responded within the half hour by sending Ms. Appleyard the following e-mail: I cannot guarantee that Sabatello will purchase beyond parcel 4. It is likely that he will look to do all the 60' wide lots which means he could also purchase parcels 7 and 16 in the future. Likewise for Kenco, buying parcel 5 plus in the future could be doing parcel 12 also. Kenco may also be a builder in the custom builder program but not Sabatello. Yes, there will be only one closing for each parcel containing all the lots in the parcel. These were "completely internal" e-mail communications to which no one outside of Taylor Woodrow, including Respondent and the Other Builders, were privy. No decision had yet been made as to who would be building on Mirasol Parcel 4.6 Taylor Woodrow was even seriously considering keeping the parcel so that it could build on the property itself. At the November 30, 2000, Palm Beach Gardens City Council meeting, Respondent and the other four members of the City Council present voted in favor of Resolution 115, 2000, a consent agenda item which "approv[ed] the Golf Digest-Jog Road (AKA Mirasol Plat One) Plat." The land that was the subject of this resolution had to be platted and dedicated to Palm Beach County before any building permits could be issued for residential construction in Mirasol. On December 4, 2000, Mr. Perna sent Respondent a memorandum requesting certain information that would be needed in the event SD IV was selected to build on Mirasol Parcel 4. The memorandum read as follows: Please forward the list of your Officers and Directors for your parcel immediately. Sabatello - Parcel 4 ("Paradisio") We will be preparing the documents this week for your review. Respondent subsequently provided the requested information. The December 5, 2000, memorandum authored by City Attorney Rubin, which is referenced in the parties' Stipulation of Fact 10, was provided to all members of the Palm Beach Gardens City Council, including Respondent, as well as to the Interim City Manager. The memorandum read as follows: You have indicated that the Sabatello Companies, of which you are a principal, is currently in negotiations with the developers of the Mirasol Planned Community District ("PCD") to become a builder of homes within that community.[7] Your activities as a builder would be limited to specific parcels or pods within the PCD. You asked this office to provide a legal opinion as to your obligation to abstain from voting in your official capacity on matters relating to Mirasol that come before the City Council. Voting conflicts for members of the City Council are governed by section 112.3143, Florida Statutes. Subsection (3)(a) provides that a municipal officer shall not vote in an official capacity on any measure that "would inure to the special gain" of the officer, a principal by whom the officer is retained, or a relative or business associate of the officer. According to the state Ethics Commission, the determination of whether the officer receives a special private gain is based upon the size of the class of persons affected by the vote at issue. The Mirasol PCD encompasses a variety of residential, commercial, recreational and community uses. The residential uses range from low density single family homes to high density multi-family apartments. It is anticipated that your company's activities will be limited to the construction of single family dwellings within a specific, identifiable parcel for which a site plan has already been approved. Because of this limited involvement, there does not appear to be any requirement that you abstain from every vote relating to the approval of plats, parcels and site plans within the entire Mirasol PCD. See CEO 85-62 (city council member not prohibited from voting on rezoning of property within a large redevelopment area where member's corporation owns a parcel of land within the same area). By way of example, the City Council's approval of the site plan for the fire station or the plat for Jog Road in no way inures to your or your company's special private gain. You would, however, be required to abstain from any additional votes relating to the specific parcels or pods within the community in which your company possesses or acquires an interest by virtue of a contractual relationship with the master developer. Where a conflict of interest exists, you are required to state the nature of your interest prior to the vote and file a voting conflict memorandum with the City Clerk, within 15 days. The existence of a voting conflict does not necessarily require you to abstain from all discussion relating to the matter (although you are free to do so). If you plan to participate in discussion of a matter in which you know you have a conflict, you must file a written conflict memorandum before the public meeting. You have also expressed concern that upon learning that your company will be building homes within Mirasol, members of the public may perceive a conflict of interest in all matters relating to Mirasol. To avoid the appearance of impropriety, it would be appropriate to make the following disclos[ure] prior to any vote: "While it is anticipated that the Sabatello Companies will be building homes within Mirasol, the matter before the City Council does not concern the areas in which such construction will take place and is wholly unrelated to any interest held by me or my corporations." Should you have any questions or be in need of additional information, please do not hesitate to contact this office. In a December 8, 2000, letter to Respondent's brother and business associate, Paul Sabatello, Taylor Woodrow's James Harvey, the Mirasol Architectural Review Committee project development manager, wrote: Please accept this letter as our approval of the following items that will require administrative modification of the City of Palm Beach Gardens Parcel Four site plan: We have no objection to modifying the side yard setbacks to 3'1" and 6'11" with a minimum of 10' separation between buildings. All other approved setbacks must be met. We have no objection to moving the zero side of the lot (now 3'1" per your request) on lots 10 thru 38 to the opposite lot line. We have no objection to building the models on lots #40, #39, #7, #8, and #9. We have no objection to modifying the roof tile, body and trim, and paver colors to those submitted with your A.R.C. submission dated November 22, 2000. In addition, the Rafael, Michelangelo, Dante and Be[rn]in[i] models have been reviewed and meet the Design Guidelines established for this parcel.[8] If you should need any further information feel free to give me a call. Those of the Other Builders "being considered for [Mirasol] Parcel 4" were sent similar letters advising them of the Mirasol Architectural Review Committee's action on the plans and drawings that they had submitted. On December 11, 2000, Ms. Appleyard sent the following e-mail to Mr. Perna: Attached are redlined and clean copies of the most recent versions of the Parcel Builder Agr. and Brokerage Agr. Marc asks that you stamp these draft before sending to Carl. [T]hanks. Although it was Mr. Perna's intention that copies of these "draft" agreements be sent to all those "in the mix to become a builder" in Mirasol, including Respondent's company, for their review and comments, Respondent never received any agreement marked "draft" from Taylor Woodrow. Respondent, however, did receive the following letter, dated December 18, 2000, from Mr. Perna: Please find attached the matrix regarding your price lot in Paradisio[9] with corresponding square footage. You can see that it will be necessary to reduce your 2 story to 4,000 square feet in order to fit into the overall structure. You can split up your premiums but standard options and upgrades must stay within the box. Please do not hesitate to give me a call if you have any questions. The "Mirasol Housing Price Matrix," a copy of which was enclosed with the letter, provided that the "base lot price charged to [the selected] builder" for the 46 lots in Mirasol Parcel 4 would be $139,000 per lot. "That would be the deal" for whoever was selected to build on that parcel. There was no room for negotiation. Copies of the "Mirasol Housing Price Matrix" were also sent to the Other Builders. Taylor Woodrow advised SD IV, as well as the Other Builders, that, if selected, they would be expected to start construction of their model homes as soon as possible so that the homes could be completed before the last day of March when the "season" ended. It therefore encouraged them to take such preliminary steps as might be necessary for them to "be ready to pull a building permit" upon the conclusion of the builder selection process.10 This included filing paperwork to obtain City of Palm Beach Gardens administrative (staff) approval of site plan modifications endorsed by the Mirasol Architectural Review Committee.11 Any builder wanting to file such pre- selection paperwork had the permission of Taylor Woodrow (the property owner) to do so (as Taylor Woodrow's agent). SD IV, through Paul Sabatello, filed such paperwork, along with a $150.00 check (for the filing fee),12 with the Palm Beach Gardens Planning and Zoning Division on December 18, 2000. In doing so, SD IV was seeking approval of the modifications to the Mirasol Parcel 4 site plan referenced in Mr. Harvey's December 8, 2000, letter to Paul Sabatello. SD IV's submission was accompanied by a cover letter, dated December 18, 2000, from Paul Sabatello to Steve Cramer, the Palm Beach Gardens' Interim Growth Management Director, which read as follows: Please find enclosed architectural drawings, exterior colors and site plans for your review and approval for Parcel 4 (Paradisio) Mirasol. The floor plan and building colors vary slightly from the prototypical plans previously submitted. We are requesting at this time an approval for the ability to use 3'-1" + 6'11" side yard set backs instead of the usual 0 + 10'. These set back conditions provide the required 10' building separation while according to Table 600 of the Standard Building Code allowing us to include some glass on what would be the zero side. The enclosed site plans show this clearly for the proposed models on specific lots. This set-back condition would apply to all lots in Parcel 4. One additional request for approval. The original site plan indicated zero side of lots with the "zero flip" occurring on lots 9, 10 and 38, 39. [T]his is not possible with the new set back[] conditions. Therefore, we are requesting that the zero side 3'-1" set back side be as follows: Lots 1-23 "Zero" on Right Lots 24-46 "Zero" on Left The enclosed site plan indicates the change that we are requesting. Also enclosed please find the letter of approval from the Mirasol Architectural Review Committee for the above-mentioned request.[13] Should you have any questions do not hesitate to call. Thank you. The "architectural drawings" that were submitted showed the Da Vinci model (on lot 9), the Raphael model (on lot 10), the Bernini model (on lot 11), the Dante model (on lot 39), and the Michelangelo model (on lot 40). On the forms that were part of the filing, the representation was made that SD IV owned Mirasol Parcel 4. In fact, Taylor Woodrow was the owner of the property, and it had merely given SD IV permission to make the filing on its behalf. It had not, at the time of the submission, entered into any agreement with SD IV regarding ownership of the property. Among the other things that SD IV did around this time to be "ready to go" if and when selected by Taylor Woodrow to build on Mirasol Parcel 4 was to assemble materials it would need to submit to the Palm Beach Gardens Building Department to obtain building permits to construct model homes on the parcel. As part of this process, Respondent signed and dated building permit application forms. He did so as early as December 20, 2000, the same date that a list of subcontractors (to accompany the permit applications) was prepared.14 Respondent recognized that it was a "gamble" to do the things that SD IV was doing to ready itself to begin building in Mirasol because there was the chance that the company would not be chosen to participate in the project and that all its preparation would be for naught. Nonetheless, he considered it to be a "gamble" worth taking and made good business sense. Such pre-selection risk-taking was not uncommon among builders doing business in Palm Beach Gardens.15 The most recent of Respondent's allegedly unlawful votes were cast at the Palm Beach Gardens City Council December 21, 2000, meeting. These votes were in favor of approving six items on the consent agenda (Resolutions 127, 2000; 128, 2000; 129, 2000; 130, 2000; 131, 2000; and 132, 2000) involving the platting of parcels that were part of the Mirasol Project, including Mirasol Parcel 4, as more particularly described in the parties' Stipulation of Fact 11. These plats had to be approved before any building permits could issue. By the time of the December 21, 2000, votes, Respondent was aware that Mirasol Parcel 4 was where SD IV would be building (at least at the outset) if selected to participate in the Mirasol Project. He was hopeful that his company would get the opportunity to build there, but it was a matter over which he had no control. It was in the hands of Taylor Woodrow. As of December 21, 2000, Taylor Woodrow had not extended SD IV an offer to participate in the Mirasol Project, nor had it given SD IV any assurances that such an offer would be forthcoming. There was uncertainty as to whether SD IV would be selected. It was not until the following month that this uncertainty was eliminated when Taylor Woodrow finally made its decision to allow SD IV to become a builder in Mirasol, specifically on Mirasol Parcel 4. In voting on these and prior resolutions affecting the Mirasol Project, Respondent was acting in a manner consistent with the verbal advice he had solicited from the City Attorney before each vote, as well as the advice contained in City Attorney Rubin's December 5, 2000, memorandum (which is set forth above). At the time of each of these votes, Respondent's company did not have "an interest by virtue of a contractual relationship with the master developer" in any property in Mirasol. Therefore, according to what he had been advised by City Attorney Rubin, he was not required to abstain from voting. On December 28, 2000, the City of Palm Beach Gardens Planning and Zoning Division granted its approval of the modifications SD IV had sought (through its December 18, 2000, filing) to the Mirasol Parcel 4 site plan. Respondent first learned that his company had been selected to build on Mirasol Parcel 4 when he received from Taylor Woodrow a letter dated January 22, 2001, so advising him, along with a Parcel Builder Agreement and Exclusive Agency Brokerage Agreement for Mirasol Parcel 4. These agreements were fully executed in February of 2001. SD IV paid $139,000 per lot for the lots that it purchased in Mirasol Parcel 4 (consistent with the pre-selection pronouncement that had been made in the 'Mirasol Housing Price Matrix" that Taylor Woodrow had distributed). SD IV was one of first builders to start construction in Mirasol. SD IV successfully built out Mirasol Parcel 4. It sold all of the 46 homes it built.16 A total of 12 builders, including SD IV, participated "in the whole [Mirasol] [P]roject." Not all of the Other Builders were selected to participate in the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent violated Section 112.3143(3), Florida Statutes, by voting at the September 7, 2000, September 21, 2000, October 19, 2000, November 30, 2000, and December 21, 2000, Palm Beach Gardens City Council meetings on matters affecting the Mirasol Project and dismissing the complaint filed against Respondent. DONE AND ENTERED this 4th of March, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009.
Findings Of Fact At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9 deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time. She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied. RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY THE PETITIONER None submitted. BY THE RESPONDENT 1. - 7. Accepted and incorporated herein Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem Not a Finding of Fact but a comment of the state of the evidence. COPIES FURNISHED: Gardner Beckett, Esquire 123 8th Street North St. Petersburg, Florida 33701 Edward Haman, Esquire Office of Licensure and Certification Legal Counsel Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact In early September of 1979, John and Ruth E. Lockwood contracted with P & P Custom Pools, Inc. (P & P), for the construction of a swimming pool at their home, 231 El Dorado Drive, Debary, Florida. Respondent, Philip J. Mains, signed the contract on behalf of P & P and later obtained a building permit. He and his men began excavating on site in mid-September. The Lockwoods paid respondent $700.00 on September 6, 1979. As construction progressed, they paid him $1,706.25 on September 27, 1979; $1,000.00 on October 26, 1979; $1,047.50 on October 29, 1979; and $1,706.25 on November 20, 1979. At the appropriate times, a building inspector was summoned, who inspected the project, including the placement of reinforcing steel, ground wiring, and lights. Neither the "steel inspection" nor the "deck inspection" revealed any problem. The workmanship was excellent, as far as it went, but the Volusia County building inspector's office was never asked to perform a final inspection. As respondent promised there would be, there was water in the swimming pool by Christmas of 1979, but respondent did no further work after December, 1979. He never installed the pump, filter, diving board, or hand bars called for in the Lockwoods' contract. Earlier in 1979, Patrick T. Ryan, the other principal in P & P, left town and abandoned the business which was then $37,000 in debt. In November of 1979, respondent turned the company's books over to an accountant. In January of 1980 the business' financial problems became critical and, at the accountant's suggestion, respondent so advised the eight homeowners for whom he was building swimming pools, including, in January or February, Mr. Lockwood, who reacted angrily. Respondent testified that Mr. Lockwood "cussed him out." Thereafter respondent avoided the Lockwoods until April of 1980 when they found him working on another pool. There was enough money owed on the eight contracts as a group to finish all the pools, according to respondent's uncontroverted testimony, at the time the Internal Revenue Service levied on respondent's bank account and seized his tools and equipment. Even then respondent offered to finish the Lockwoods' pool if they would buy the materials. Respondent's wife asked Mrs. Lockwood to write a check to a supplier for a pump and filter so that respondent could install them and get water in the pool circulating. Instead, during the last week of April, 1980, the Lockwoods contracted with somebody else to finish the job and paid him $1,200. Respondent subcontracted with a Jacksonville cement company to pour concrete for the pool. After the concrete had been poured, the Lockwoods got a registered letter from the subcontractor threatening to place a lien on their property if he were not paid. According to Mr. Lockwood, the problem was that some check [supposedly drawn by respondent in favor of the subcontractor] had been delayed in the mail. In any event, there was no indication in the evidence that the Lockwoods heard anything further from the subcontractor.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's registration for thirty (30) days. DONE AND ENTERED this 29th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 30th day of April, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Philip J. Mains c/o Sue Mains Route 2, Box 799A DeLand, Florida 32720 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 80-2231 PHILIP J. MAINS, RP 0024663, Respondent. /
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 February, 1984.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: The BOARD is the state agency charged with the duty to license, regulate, and discipline construction industry contractors pursuant to Chapter 489, Part I, Florida Statutes (1979). VARNUM is a licensed, certified general contractor holding two currently active licenses, CG C000832 and CG CA00832 (Prehearing Stipulation). Here, the BOARD seeks to discipline VARNUM'S licenses on the ground that he submitted to the BOARD a false, erroneous, and misleading Change of Status Application ("Application") which failed to disclose outstanding judgments and liens; VARNUM claims that he either did not know of the outstanding judgments and liens, or that he reasonably believed that they had been satisfied prior to the filing of this Application. (Prehearing Stipulation, Testimony of Varnum). On September 28, 1978, VARNUM filed his Application with the BOARD. The purpose of the Application was to qualify, under his licenses, a corporation known as General Contractors of Florida, Inc.; Richard Gale was identified as its president, VARNUM, its executive vice president. Within the Application, VARNUM answered the following questions in the negative: "12(b) Are there now any unpaid past due bills or claims for labor, materials, or services as a result of the construction operations of any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x) * * * "(c) Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" * * * "(d) Are there now any liens of record by the U.S. Internal Revenue Service or the State of Florida Corporate Tax Division against any person named in (i) below or any organization in which any such person was a member of the personnel? Yes ( ) No (x)" Paragraph 12(i), referenced in Questions 12(b) through (d) contained the name "Ira L. Varnum", Respondent. (Testimony of Norman: P.E. 4.) By executing, under oath, the Application, VARNUM expressly vouched for the truth and accuracy of his statements and answers contained therein. The Application expressly warns that "[a]ny wilful falsification of any information contained herein is grounds for disqualification." (P.E. 1.) From 1969 through 1976, VARNUM engaged in contracting under the following business entities: All Florida Builders Diversified, Inc. Varnum Enterprises, Inc. Varnum & Associates, Inc. Structural Concrete Forming, Inc. Ira L. Varnum & Co. (a partnership) Oakridge Construction Co., Inc. General Contractors of Florida, Inc. Since 1976, VARNUM engaged in contracting under the name of "Structural Concrete Forming of Florida, Inc.,"; this has been an active corporation with a gross income of 1.5 to 2 million dollars during the last two years. (Testimony of Varnum, Norman, Gale.) The following tax liens or civil judgments, arising out of VARNUM's prior construction operations, were extant and of record at the time the Application was filed, but were not disclosed by VARNUM in his answers to Questions 12(b) through (d): JUDGMENT OR DEBTOR LIEN CREDITOR DATE RECORDED AMOUNT Judgments: Structural Concrete Forming of Florida, Inc. Jiffy Johns, Inc. 6/1/77 $ 79.92 plus costs, $14.00 All Florida Builders Diversified Morgan Driveway 7/15/74 $ 147.95 Tax Liens: Structural Concrete Forming, Inc. U.S. Internal Revenue Service 2/11/76 $ 5,002.37 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 8/3/73 $18,100.25 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/19/74 $ 5,061.86 Ira Ira L. L. Varnum Varnum and and Co. U.S. Internal Revenue Service 3/22/73 $13,041.17 All Florida Builders U.S. Internal 8/29/73 $30,721.59 Diversified, Inc. Revenue Service All Florida Builders Diversified U.S. Internal Revenue Service 7/27/73 $ 2,404.94 All Florida Builders Diversified U.S. Internal Revenue Service 8/30/73 $21,747.76 All Florida Builders Diversified U.S. Internal Revenue Service 3/20/73 $10,161.41 Varnum Enterprises, Inc. Florida Division of Labor and Employment Opportu- nities 3/11/71 $ 2,700.00 plus int. & penalties Varnum and Associates, Inc. Florida Division of Labor and Employment Opportunities 8/4/70 $ 4,380.88 plus int. & penalties Structural Concrete Forming, Inc. Florida Division of Labor and Employment Opportunities 2/12/75 $ 649.57 plus int. The Jiffy Johns, Inc., judgment was paid by VARNUM prior to filing his Application on September 28, 1978, although the Satisfaction of Judgment was not executed until June 22, 1979, and recorded on June 25, 1979. The Burroughs Corporation may also have held a judgment against Varnum Enterprises, dated May 25, 1973; however, the copy introduced into evidence is illegible and, therefore, cannot support an affirmative finding. (Testimony of Norman, Varnum; P.E. 2, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14; R.E. 2.) VARNUM did not willfully or knowingly falsify or fail to disclose the existence of the outstanding judgments and tax liens when he completed his Application. He believed that those judgments and liens had been satisfied years earlier, and had no reason to believe otherwise. When the tax liens were initially filed, he had turned them over to his attorney, Paul Mueller, for handling. Mueller had been resident agent for many of VARNUM's construction companies and VARNUM retained him to perform business-related legal services. VARNUM had reason to believe that the judgments and liens filed several years earlier had been handled and satisfied by Mueller, in accordance with VARNUM's instructions. The holders of those judgments and liens have not made an effort to collect or enforce them against VARNUM. VARNUM's assertion that he believed there were no outstanding judgments or liens against him at the time of his Application is buttressed by his experience in refinancing and subsequently selling his residence in 1978. Although one Federal tax lien and several other judgments and claims were satisfied and paid-off at the time of these two separate mortgage transactions, the judgments and liens here in question did not surface, were apparently unknown to the parties, and were not noted or included in the closing statement and title insurance policy accompanying the mortgages and sale. (Testimony of Varnum; R.E. 1, 3, 4.) Furthermore, since 1976 VARNUM has conducted in the same community a construction business under the name of "Structural Concrete Forming of Florida, Inc." That company has enjoyed a good credit rating with its suppliers, and has had no judgments or tax liens filed against it. The holders of the judgments and liens here in question never contracted the company to discuss, or seek collection of these outstanding claims. (Testimony of Gale, Varnum). VARNUM has filed proposed findings of fact and conclusions of law. Findings of Fact Nos. 9, 10, 11, 12, 16, 17, 18, 21, 22, 23, 24, 25 and 28 are hereby adopted. To the extent that his proposed findings of fact are not adopted herein, they are specifically rejected as being either irrelevant to the issues in this cause or as not having been supported by the evidence.
Conclusions Although Respondent made a false background on his Application--that there were no outstanding liens or judgments against him--the Petitioner Licensing Board, failed to establish that Respondent knew, or should have known that the statement was false. To the contrary, the evidence shows that Respondent made the false statement innocently, and upon a reasonable belief that it was true. Respondent is, therefore, not guilty of the charges, and the Board's Second Amended Administrative Complaint should be DISMISSED.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Second Amended Administrative Complaint filed against VARNUM be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of October, 1980. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1980.
Findings Of Fact At the final hearing the following factual allegations contained in the Administrative Complaint were either stipulated to by the parties or not disputed by the Petitioner: The Respondent John W. Rohrback is a certified general contractor having been issued license numbers CC C002372, CG CA 02372, PM 0015083 and RF 0036563. The last known address of the Respondent Rohrback is 10282 N.W. 31st Street, Coral Springs, Florida 33065. The Respondent Rohrback, while doing business as Statewide Insulation and Solar Systems, Inc., failed to initially obtain building permits which are required by ordinance on the following job sites: Mrs. Blanche Nelson, 454 N.E. 4th Street, Boca Raton. Mrs. Dorothy Menzel, 784 N.E. 71st, Lot 27, Block C, Boca Harbor. Work started May 17, 1980. Permit taken out on May 19, 1980. Mrs. Meinhard, 1230 S.W. 7th Street, Lot 6, Block 29, Boca Raton Square. Work started on May 7, 1980. Permit taken out on May 19, 1980. Ms. Mary Greenhauer, 986 S.W. 14th Street, Lot 20, Block 63, Boca Raton Square. Work started on May 3, 1980. Permit issued on May 19, 1980. Although the Respondent Rohrback eventually received the permits for these projects, he also initially failed to obtain a license to do contracting in the City of Boca Raton as required by ordinance. On or about August 11, 1980, the City of Boca Raton Contractor's Board suspended the Respondent Rohrback indefinitely from doing business in the city for: using alternate materials and methods without clearance; not obtaining building permit; not filing a proper permit; and not filing proper proof of a certificate of competency. At the time of the hearing before the local contractor's board, the Respondent Rohrback had settled and obtained releases with two of the listed individuals. He was told to settle the remaining two cases, obtain releases and appear before the local Board at a later date. The Respondent appeared on the designated date and discovered that the Board had met the previous day and suspended his license. The Respondent Rohrback contacted the Boca Raton city attorney and a representative of the Department to present the signed releases and cancelled checks he eventually obtained from the four listed individuals in order to obtain a reversal of the local Board's action suspending his license. At the time of hearing, the Respondent had been unsuccessful in obtaining a reversal of the Board's decision. Additionally, the Respondent Rohrback acted as qualifying agent for D.R.K. Company from July 1, 1979 through February 1981. During this period of time, D.R.K. utilized deceptive practices in order to obtain contracts from various individuals. By certified letter dated June 12, 1980, the Respondent informed D.R.K. and pertinent licensing boards that he was withdrawing as qualifying agent for D.R.K. and Statewide Insulation and Solar Systems, Inc., and revoking any presigned permits or letters of authorization that may have been signed by John W. Rohrback. However, the Respondent did not actually attempt to revoke his authorization until October 28, 1980, when a letter was sent to Milton Rubin, administrative assistant to the Florida Construction Industry Licensing Board, outlining the problems he had encountered with D.R.K. and Statewide. On or about February 19, 1981, the Lee County Board of County Commissioners suspended the Respondent Rohrback's privilege to pull building permits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Administrative Complaint filed against the Respondent John W. Rohrback in Case No. 82-2616. DONE and ORDERED this 28th day of March, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 28th day of March, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Blvd. Fort Lauderdale, Florida 33306 John W. Rohrback 10282 Northwest 31st Street Coral Springs, Florida 33065 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
