The Issue The issue in this case is whether disciplinary action should be taken against the license of John Arena (Respondent) based upon violations of Sections 489.105(4), 489.119 and 489.129(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this case.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified residential contractor in Florida, having been issued license number CR-C021139. The Department is the state agency charged with the responsibility to prosecute Administrative Complaints pursuant to Chapters 120, 455 and 489, Florida Statutes, and rules adopted thereunder. During March, 1988, the Respondent's license was issued in an active status qualifying Classic Industries, Inc., and this licensure status was effective until September 1989, when the Respondent's license was placed in inactive status. On or about September 23, 1988, Dorothy G. Fields entered into a contract for residential repairs and construction with Classic Industries, Inc., for her residence located at 4361 Southwest 23rd Street, Ft. Lauderdale, Florida. At the time of this contract, the Respondent was the qualifying agent for Classic Industries, Inc. However, the Respondent never personally spoke with Dorothy Fields, or anyone acting on her behalf, concerning this contract. Fields' contract with Classic Industries clearly reflects her understanding that the work to be completed included window repair, the installation of an air conditioner, and insulation, for which she was to pay $6800. However, Respondent understood that the only work to be performed for Fields was window repair, and accordingly, he pulled a permit on September 27, 1988 only for the repair of her windows, and not for the air conditioner or insulation work. There is no evidence in the record which would support the Respondent's understanding, and it is, therefore, found that Respondent was in error when he failed to pull permits for the additional work which was to be performed on Fields' residence. Respondent visited the site of this job and determined that the window repairs had been completed according to code specifications. He did not observe any work being done on the air conditioner or the installation of insulation. Nevertheless, this work was, in fact, performed, and Fields made full payment to Classic Industries in the amount of $6800. The air conditioning work on Dorothy Fields' residence was subcontracted by Classic Industries to Carlos Jimenez, d/b/a, All American Services. At all times material hereto, Carlos Jimenez, d/b/a, All American Services, was not licensed and qualified by the Construction Industry Licensing Board in Florida. No permits were obtained for the air conditioning and insulation work, and a Notice of Violation was issued by the local building inspector on October 11, 1988. Subsequent thereto, permits were obtained on November 15, 1988, after this work had been performed. On October 4, 1990, a Final Order was filed by the Construction Industry Licensing Board involving the Respondent in Case Number 109713 (DOAH Case Number 90-1416). As a result of violations of Section 489.129(1)(d),(j) and (m), Florida Statutes, which were found in that case, the Respondent was fined $2250, and his license was also suspended for as period of thirty days, subject to this period of suspension being stayed if he paid the administrative fine within thirty days. There is no evidence in the record to indicate whether Respondent did, in fact, pay this fine within thirty days.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order placing Respondent's license on probation for a period of two years, and imposing an administrative fine in the amount of $2,000. DONE AND ENTERED this 21st day of November, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990. APPENDIX Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 6. Adopted, substantially, in Findings of Fact 3 and 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Copies furnished: Robert Harris, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John Arena 5961 S.W. 13th Street Plantation, FL 33317 Kenneth E. Easley, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, FL 32202
The Issue The issue is whether Respondent should deny Petitioner the right to take the state air conditioning contractor examination for lack of good moral character.
Findings Of Fact The National Assessment Institute ("NAI") provides examinations to the State Construction Industry Licensing Board, including the examination given for certification as a state air conditioning contractor. Petitioner has unsuccessfully taken the state air conditioning contractor examination approximately four times in the past. Petitioner has reviewed previous examinations and is familiar with procedures imposed pursuant to Section 455.229(2), Florida Statutes. No part of the examination may be copied, including any part of the questions or answers. Loose-leaf student manuals purchased from NAI may be taken into a review and retained by the student after the review is completed. Scratch paper provided by NAI officials during a review must be turned in at the conclusion of the review. On April 23, 1993, Petitioner reviewed a recent state air conditioning contractor examination. Petitioner reviewed the examination at a branch office of the NAI. Prior to April 23, 1993, Petitioner purchased a student manual. Petitioner placed one piece of carbon paper over one piece of blank paper and inserted the carbon set between two pages of the student manual. Petitioner taped closed the two pages of the student manual and tabbed the taped pages of the student manual ("altered pages"). Petitioner inserted three more carbon sets inside the student manual in identical fashion, producing a total of four altered pages. During the examination review on April 23, 1993, Petitioner placed a blank sheet of scratch paper on top of the first altered page of the student manual. Petitioner wrote the answers to the first part of the examination on the scratch paper. The answers were copied on the carbon set underneath the scratch paper. In a similar manner, Petitioner copied answers to each of the remaining three parts of the examination on the carbon sets inside each of the remaining altered pages in the student manual. Petitioner used a numeric code of "1-4" to represent answers "a-d" on each part of the examination. Petitioner used arithmetic symbols and other lines to disguise his effort by making it appear he was writing down mathematical formulas. However, the sequence of numbers "1-4" correspond to the correct answers "a-d" for each part of the examination reviewed. Petitioner copied 200 examination answers. During his testimony at the formal hearing, Petitioner explained: I did do something wrong. Transcript at 47. What I was trying to do was take down all the different letters. . . . I wanted to see if there was some kind of sequence where there were more A's, B's, more C's or more D's used. Transcript at 49. I was desperate. My whole life is air conditioning and refrigeration. * * * I've been trying to pass that test for at least the last two years, maybe more. . . . I believe it's been at least four times, maybe more. Transcript at 47. NAI representatives monitoring the examination review telephoned local police, and Petitioner was arrested pursuant to Section 455.2175, Florida Statutes. The materials used by Petitioner to copy examination answers were confiscated by police. Criminal charges were dismissed without conviction. Each examination question costs the state approximately $200. The 200 questions corresponding to the 200 answers copied by Petitioner will no longer be used by the state. Petitioner testified that he has dyslexia and attention deficit disorder. However, Petitioner has never requested additional time for an examination, never notified Respondent of Petitioner's disability, and never requested Respondent to provide special examination facilities or procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request to take the state air conditioning contractor examination for the reasons stated herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1994. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1766 Petitioner's Proposed Findings of Fact Accepted in substance Rejected as conclusion of law 3.-8. Accepted in substance 9.-12. Rejected as irrelevant and immaterial 13. Accepted in substance 14.-15. Rejected as irrelevant and immaterial 16. Rejected as not supported by credible and persuasive evidence 17.-18. Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial and as recited testimony Rejected as not supported by credible and persuasive evidence Respondent's Proposed Findings of Fact 1.-8. Accepted in substance Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence 11.-13. Accepted in substance COPIES FURNISHED: Richard Hickok Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James W. Kline, Esquire P.O. Drawer 30 180 South Knowles Avenue Winter Park, Florida 32790-0030 Clark R. Jennings, Esquire Assistant Attorney General Deptartment of Legal Affairs Administrative Law Section Suite PL-01, The Capitol Building Tallahassee, FL 32399-1050
The Issue Whether Respondent's license as a certified general contractor should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 489, Florida Statutes as set out in the January 18, 1984 Administrative Complaint. Petitioner presented the oral testimony of Louis P. Gilner, Peter Max Christianson, Jr., Catherine M. Edwards, John Owen Thompson, Jack W. Rainford, and Annie Gilner and had admitted in evidence Petitioner's exhibits 1, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 11, 12 and 13. Exhibit 2 is clearly hearsay and inadmissible but has be considered as a stipulation of counsel and is discussed under the Conclusions of Law as a jurisdictional argument of counsel. Neither Respondent nor Chester A. Trow, Esquire appeared for formal hearing. Petitioner filed transcript of the proceedings November 14, 1985 and proposed findings of Fact and Conclusions of Law on November 18, 1985, and waived time for entry of this recommended Order. These proposals have been considered in this recommended Order and are ruled upon in the Appendix hereto.
Findings Of Fact Respondent, Patton N. Roberts, is a certified general contractor, license number CG C015023 and qualifying agent for Roberts Construction and Development, Inc. Although Respondent failed to renew his license in June, 1985, and his license is now on inactive status, it can be renewed at any time before June 1988 by payment of late renewal fee. In June 1982, Respondent entered into a contract for $68,242.00 with Louis Gilner to construct home in Putnam County, Florida. The charges against Respondent arise out of the use of the funds associated with construction of this home pursuant to contract. On June 30, 1982, Respondent obtained Putnam County building permit #6107 for the construction. Respondent commenced construction and completed the home to the dry-in stage by approximately early August 1982. Mr. Gilner paid Respondent a $50.00 deposit and two "draw" payments of $20,472.00 each, making total payments to Respondent of $40,995.00. These "draws" against the total amount of $62,242.00 which was contracted-for were paid on July 20, 1982 and August 5, 1982, respectively. Approximately July 15, 1982, Respondent ordered trusses for the Gilner residence from Landmark Truss, Inc. The trusses were delivered on July 23, 1982. Respondent failed to pay for the trusses, although he had received the draw payment for the trusses. Landmark Trusses, Inc. filed a lien on the Gilner residence for $2,490.00. On July 9, 1982, Respondent ordered 16 loads of fill dirt for the Gilner residence from Chesser & Strickland Sand Co., Inc. The Respondent's failure to pay $950.00 for the dirt and the labor in spreading it resulted in a lien being filed against the Gilner property for that amount. Mr. Jack Rainford testified that Respondent subcontracted the heating and air conditioning work to A-1 Air and A-1 plumbing for $5,806.00 ($3,550 plumbing and $2,556 air conditioning); that Respondent paid A-1 Air and A-1 Plumbing the first draw on the plumbing in the amount of $1,128.00 on August 17, 1982; that the Gilners had, on January 3, 1983, paid A-1 Air and A-1 Plumbing $1,128.00 on the air and $1,183.34 on the plumbing, and that Respondent has failed to pay $1,183.34 on the plumbing and $1,128.00 on the air conditioning. No matter how these figures are worked, they do not fairly support Mr. Rainford's conclusion that Respondent only owes A-1 $1,183.34 plus $1,12800. It is more mathematically logical that the original total owed was $6,106.00; the Respondent paid $1,128.00 on August 17, 1982 reducing the remaining amount to $5,806.00; thereafter Mr. and Mrs. Gilner, on January 3, 1983, paid A-1 $1,128.00 for the air conditioning work and $1,183.34 for the plumbing package and that Respondent actually owes the Gilners $2,311.34 for their having to pay twice, and owes A-1 $3,464.66; which is the balance of A-1's bill after all payments the Respondent and the Gilners have been deducted. However, the undersigned will accept Mr. Rainford's unrefuted testimony that Respondent owes A-1 only $1,128.00 plus $1,183.34 for a total of only $2,311.34. On or about September 6, 1982, Gilner terminated Respondent for lack of progress toward completion. At that date of termination the Respondent and his crew had been absent from the premises for five to six weeks. At the time of the Respondent's termination, the project was, by Mr. Gilner's estimation, only 40 percent completed. Although the predicate for Mr. Gilner's knowledge in this regard is less than might normally be characterized as "expert" testimony, it is still credible and based on Mr. Gilner's testimony concerning his usual employment as an installer of traffic controls involving other construction projects, and in conjunction with the testimony of Mrs. Gilner, his estimation that the extent of the household construction total led only 40 percent is accepted for purposes of this finding of fact. At this stage, based on the draws paid. 60 percent of the construction should have been completed by Respondent. The Gilners both testified that they completed the home after Respondent's termination at a total cost of $82,000, or $14,000 over the contract price. There is no evidence to support the actual amount paid or what it was paid for, nor is there any evidence to establish what relationship there may have been between Respondent's behavior and the increased cost. Although Mrs. Gilner testified that there was some misinstallation of the trusswork and that rain had damaged the roof prior to Respondent's final termination, this information, without more, will not support the $14,000 figure. Approximately August 25, 1982, in a conversation with Catherine Edwards, an employee of Landmark Truss, Respondent had explained that the reason he had not paid the Landmark Truss bill was because he had elected to use the draws he had received from the Gilners to buy some lots upon which to build ""spec" (speculation) Respondent stated to Ms. Edwards that he originally intended to get the lots "subordinated" but due to the early death of an elderly man up north, he had had to use the (5) Gilner draws to buy his lots and was awaiting profit from the speculation homes to pay landmark Trusses bill. Because this conversation occurred after Landmark Trusses had served its Notice of Claim on Mrs. Gilner, the undersigned construes this conversation to be an admission against interest by Respondent and draws the inference there from that failure of Respondent to pay the other necessary owed costs from the draws received from the Gilners resulted from the same misapplication of draw funds as Respondent described to Ms. Edwards.
Recommendation That the Construction Industry Licensing Board enter a final order providing that Respondent's certified general contractor's license shall be suspended for a five year period with the provision that the suspension shall be lifted after one year upon the Respondent providing proof to the Construction Industry Licensing Board that he has made restitution of $2,311.34 to the Gilners, $2,490.00 to Landmark Trusses, Inc., $950.00 to Chesser & Strickland Sand Co., and $2,311.34 to A-1 Air and A-1 Plumbing. DONE and ORDERED this 20th day of December 1985 in Tallahassee Florida. ELLA JANE P. DAVIS 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 20th day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2857 Petitioner's Proposed Findings of Fact: Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted Accepted. Accepted. Accepted. Accepted but expanded to conform to the evidence as a whole. Accepted but expanded to conform to the evidence as a whole. Rejected as not supported by the competent substantial evidence in the record as a whole. Accepted but rephrased to reflect the competent substantal evidence in the record as a whole. COPIES FURNISHED: Mr. James Linnan Executive Director Construction Industry Licensing Board P. O. Box 2 Jacksonville, Florida 32202 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Chester A. Trow, Esquire P. O. Box 1450 Ocala, Florida 32678 Patton N. Roberts 2442 Jackson Street Hollywood, Florida 33202
The Issue Whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in proposing to award a contract for State Project No. 99003-3501 to the Intervenor.
Findings Of Fact The Parties. The Respondent, the Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department sought bidders for a construction project by invitation to bid. The Petitioner, North Florida Construction, Inc. (hereinafter referred to as "North Florida"), submitted a bid on the Department's construction project. The Intervenor, Pro-Steel Buildings, Inc. (hereinafter referred to as "Pro-Steel"), also submitted a bid on the Department's construction project. The Subject Invitation to Bid. The Department issued an Invitation to Bid for State Project Number 99003-3501 (hereinafter referred to as the "ITB"). The ITB solicited bids on a construction contract for the relocation of the Department's maintenance yard facility in Tallahassee, Florida. The ITB required that each prime contractor either subcontract at least 25 percent of the total contract price to a Certified Minority Business Enterprises (hereinafter referred to as a "CMBE"), or show a good-faith effort to meet the 25 percent goal. Pages 78-81, Joint Exhibit 1. Included in the Instructions to Bidders, at Section B-14, are instructions concerning "Listing of Subcontractors." Page 15, Joint Exhibit 1. Section B-14 of the ITB provides: In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit in triplicate with his proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the "List of Subcontractors" form enclosed as Exhibit 5. The Bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this Agreement and is qualified both technically and financially to perform that pertinent phase of this work for which he is listed. . . . Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. [Emphasis added]. Exhibit 5, List of Subcontractors, provides, in part, the following: THE UNDERSIGNED, HEREINAFTER CALLED "BIDDER", LISTS BELOW THE NAME OF EACH SUBCONTRACTOR WHO WILL PERFORM THE PHASES OF THE WORK INDICATED. FAILURE OF THE BIDDER TO SUPPLY SUFFICIENT INFORMATION TO ALLOW VERIFICATION OF THE CORPORATE, AND DISCIPLINE LICENSE STATUS OF THE SUBCONTRACTOR MAY DEEM THE BID AS BEING NON-RESPONSIVE. Page 55, Joint Exhibit 1. Exhibit 5 was required to be completed and submitted with all bids pursuant to Section B-14 of the ITB. From the technical specifications for Heating, Ventilation and Air Conditioning work (hereinafter referred to as "HVAC"), for the project at issue, it could be inferred that two 30-ton air conditioning units were required. The Bids Submitted by Pro-Steel and North Florida. Bids on the ITB were submitted and opened on March 24, 1994. North Florida submitted a bid in response to the ITB: On the envelope containing the sealed bid of North Florida, North Florida requested that $14,000.00 be deducted from its proposed contract price. North Florida submitted a bid of $2,997,007.00. North Florida was the apparent second low bidder. North Florida listed Gallon & Sons as the subcontractor responsible for HVAC work. North Florida also listed Gallon & Sons as a CMBE. Gallon & Sons was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with North Florida's bid. North Florida proposed to install two 30-ton air conditioning units. Pro-Steel also submitted a bid in response to the ITB. Pro-Steel submitted a bid of $2,993,000.00. Pro-Steel was the apparent low bidder. Pro-Steel listed "Watts Mechanical" as the subcontractor responsible for the HVAC work required by the ITB. Pro-Steel also listed Watts as one of two CMBE subcontractors. "Watts Mechanical" was listed on Exhibit 5, the Minority Business Enterprise Utilization Summary, submitted with Pro-Steel's bid. Pro-Steel's bid submittal proposed the installation of two 30-ton air conditioning units. The Department's Decision. It is the policy of the Department to waive minor irregularities in bid submittals. Irregularities with North Florida's bid were correctly determined to be minor by the Department and were waived. The bid tabulation sheet and the bids indicated that Pro-Steel submitted the lowest, responsive bid. The Department proposed to award the contract under the ITB to Pro-Steel. Without Watts as a CMBE, Pro-Steel would not meet the 25 percent CMBE participation goal of the ITB. The Department's project manager for the ITB determined that Watts was a CMBE in evaluating the bid submittals. Qualification of CMBE's to Perform Work Proposed. Gallon & Sons was at all times relevant to this proceeding, registered as a CMBE in hearing and air conditioning. Eddie Gallon, Sr., was at all times relevant to this proceeding, the registered qualified agent for Gallon & Sons. Mr. Gallon holds a Class A license in heating and air conditioning. The stock of Watts Mechanical, Inc. (hereinafter referred to as "Watts"), is owned 100 percent by Jacqueline Watts. Ms. Watts is also the President of Watts. Ms. Watts held and still holds a Class B HVAC license from the Department of Business and Professional Regulation. Ms. Watts was registered with the Department of Business and Professional Regulation as the qualifying agent for Watts. Watts was registered with the Department of Management Services as a CMBE under the category of heating and air conditioning contractors. On January 1, 1994, Watts acquired the assets of Energy Systems of Tallahassee (hereinafter referred to as "Energy Systems"). Energy Systems was then owned by Thomas Trapane. As of January 1, 1994, it was intended that Watts be renamed "Watts Mechanical and Energy Systems, Inc." Mr. Trapane held and still holds a Class A HVAC license from the Department of Business and Professional Regulation. Mr. Trapane was registered with the Department of Business and Professional Regulation as the qualifying agent for Energy Systems. As of January 1, 1994, Mr. Trapane became an employee of Watts. As of March 24, 1994, when bids were submitted on the ITB: Watts had not filed an amendment to its Articles of Incorporation reflecting the change in name to Watts Mechanical and Energy Systems, Inc. (hereinafter referred to as "Watts Mechanical and Energy"). The amendment was not filed until April 26, 1994. Mr. Trapane had not registered with the Department of Business and Professional Regulation as the qualifying agent for Watts or Watts Mechanical and Energy. It was not until May 2, 1994, that the Department of Business and Professional Regulation issued a letter indicating that Mr. Trapane was a secondary qualifying agent for Watts Mechanical and Energy. Watts had not notified the Department of Management Services of its name change with regard to its CMBE certification. Based upon the foregoing, at the date of the submittal of bids and the proposed award of contract pursuant to the ITB, Watts did not hold the license required in order for it to complete the work Pro-Steel had represented to the Department Watts would perform. Substitution of Subcontractors. It is the policy of the Department to allow contractors to substitute subcontractors for good cause if proper documentation is submitted. The evidence, however, failed to prove the Department's policy concerning substitution of subcontractors applies in this matter. The evidence also failed to prove that the Department's policy concerning substitution of contractors allows the Department to accept as meeting part of the CMBE requirement of the ITB a CMBE that was not qualified to perform the required work as of the date of bid award. Alternative Proposals. The ITB allows substitutions for specified systems or products contained in the ITB. Page 28, Joint Exhibit 1. Substitutions, however, must be requested of the Architect-Engineer and written approval from the Architect-Engineer must be obtained. Substitutions must be submitted within 45 days after award of the contract. No substitutions were submitted by Pro-Steel or Watts at the time of bid submittal. As of the date of the final hearing of this case, Watts had decided to suggest that the configuration of the HVAC of the project be changed in a manner that would not require a Class A license for the work to be performed. The evidence failed to prove that the Department was aware of this proposal at the time of its initial decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order declaring the bid submitted by Pro-Steel Builders, Inc., to be non-responsive. DONE AND ENTERED this 13th day of June, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1994 APPENDIX Case Number 94-2353BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. North Florida's Proposed Findings of Fact Accepted in 2 and hereby accepted. Accepted in 1. Accepted in 3 and hereby accepted. Accepted in 4 and 10. Accepted in 10-11 and 13. Accepted in 6-8. Accepted in 14. Accepted in 15. Accepted in 7. Accepted in 25 and 32. Conclusion of law. Accepted in 9. Conclusion of law. See 27 and 32. Accepted in 32. Accepted in 15. Accepted in 20. Accepted in 7-8. See 33. The Department's Proposed Findings of Fact Accepted in 4. Accepted in 2-3 and 11-12. Accepted in 6. Accepted in 10-11. Accepted in 11 and 13. Accepted in 11 and 15. See 26, 28 and 32. Watts Mechanical, Inc. was a CMBE at the time of bid submittal. Watts Mechanical & Energy Systems, Inc., did not exist at the time of bid submittal. Accepted in 22. Accepted in 9. 9 Accepted in 24. 10-11 Accepted in 25. Accepted in 31. Accepted in 29. Accepted in 32. Accepted in 23. Hereby accepted. Accepted in 20. Accepted in 21. Accepted in 36. But see 37-38. Not relevant. See 7. Accepted in 8. 23 See 36-38. Not relevant. Accepted in 17. Pro-Steel's Proposed Findings of Fact Accepted in 4. Accepted in 7-8 Accepted in 8. Not supported by the weight of the evidence. Accepted in 34. See 35. Accepted in 17. 7 Accepted in 2-3, 10-11 and 18-19. Accepted in 14. Accepted in 9 and 36. See 25-26. But see 32. Accepted in 27, 29 and 31. The last sentence is not relevant. Accepted in 32. Not supported by the weight of the evidence. 14 See 34-35. 15 See 36-39 COPIES FURNISHED: Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Duffy Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Strickland North Florida Construction, Inc. Post Office Box 129 Clarksville, Florida 32430 Stephen J. Kubik, Esquire 155 Office Plaza Drive Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Respondent, Thomas W. Hunter, was a certified Class B Air Conditioning contractor, having been issued license number CA C014646, by the State of Florida. At all times material hereto, Derrell Baugh (D. Baugh) was an electrical contractor having been issued a license by the State of Florida. D. Baugh has not had an air conditioning license for Lake County, but has held a City of Eustis air conditioning license for some 15 years. Gregory Duane Baugh (G. Baugh) is the son of D. Baugh. G. Baugh has not been licensed by the State of Florida. The Respondent has been doing business as Hunter Air. The Respondent has never qualified Baugh's Electric, and D. Baugh has never qualified Hunter Air. In approximately 1976, D. Baugh and his son G. Baugh, and the Respondent were partners in the business of Baugh's Electric. There was no written partnership agreement, only a handshake partnership. The Respondent did the air conditioning and refrigeration work, and D. Baugh and G. Baugh did the electrical work. All three of them shared in the profits. If a job involved electrical and air conditioning work, the partner who had already contracted for the job would encourage the main contractor to use the other partner. When the Respondent and D. Baugh were working on the same job, if one partner was behind in his work, the employees of one would assist the one who was behind to complete his work. Further, when working on the same job, and when authorized by the Respondent, D. Baugh would sometimes pull air conditioning permits for the Respondent. This partnership arrangement ended in 1980 or 1982. After the dissolution of the partnership, the Respondent continued to have access to the checking accounts, and charge accounts with wholesalers, of Baugh's Electric. The Respondent can write checks on the account and charge items with wholesalers. Even after the partnership dissolved, Baugh's electric continued to use the business cards of the partnership, which included the Respondent's name. The business part of Baugh's Electric, bookwork and the writing of proposals, is handled by G. Baugh. The field work and troubleshooting is handled by D. Baugh. On June 30, 1985, G. Baugh prepared an electrical and air conditioning proposal for Gary Wyckoff (Wyckoff) on a spec house being constructed by Wyckoff. The proposal was on proposal paper for the business of Baugh's electric and showed the electrical contractor as G. Baugh, the air conditioning contractor as the Respondent, and a breakdown of the cost for each type of work. The total cost for the work, per the proposal, was $4,170. Baugh's Electric had performed other work for Wyckoff, but had not always submitted a written proposal. G. Baugh believed that the Lake County Building Department saw no problem with either the proposals of Baugh's Electric, or with the Respondent being on the proposal sheet of Baugh's Electric, as long as it was specified who was going to do what. G. Baugh has written at least six proposals in this manner. The proposal for the Wyckoff job was written as it was because the Respondent had no proposal paper of his own and it was convenient. Before the Wyckoff job, D. Baugh had a discussion with the Lake County Construction License Investigator, Mary Pasak (Pasak), concerning himself and the Respondent working together. D. Baugh was informed that there was nothing wrong with them working together as long as the Respondent did the air conditioning work and obtained the air conditioning permits, and D. Baugh did the electrical work and obtained the electrical permits. The Respondent testified that he saw nothing wrong with putting multiple proposals from different contractors with different types of licenses on one proposal sheet because he had been employed with companies which engaged in this practice. He testified that he saw nothing wrong with putting his proposal for air conditioning on the same proposal sheet with Baugh's Electric which was to do the electrical work, because everyone who was working on a project, including the Wyckoff job, was made aware of who was doing what. D. Baugh pulled the electrical permit for the Wyckoff job. As part of the air conditioning work, duct work had to be done. To complete the duct work G. Baugh contacted a duct man, James Edwards (Edwards), whom Baugh's Electric had used on several other jobs in the City of Eustis area, because the Respondent was unable to start the job. Edwards knew that he was performing the work under the Respondent's license because he had been informed years ago, during the partnership, that among the partners the Respondent had the air conditioning license. However, Edwards informed the Lake County Building Inspector that he was employed by D. Baugh on the Wyckoff job. Edwards had neither seen nor had any contact with the Respondent. On all the jobs that Edwards had done duct work on for Baugh's Electric, either D. Baugh or G. Baugh had made the contact with him, given him the okay to do the duct work, or paid him. Edwards completed the duct work, and was paid by Baugh's Electric. The Respondent reimbursed Baugh's Electric. No permit to perform the air conditioning work, including the duct work, had been pulled before Edwards started and completed the duct work. Edwards believed that D. Baugh had taken care of the mechanical permit for the air conditioning work. Wyckoff also believed that the mechanical permit had been pulled. Wyckoff knew that the Respondent had the license to perform the air conditioning work, although he had only seen the Respondent twice. Their contact was usually by telephone. The Respondent pulled the mechanical permit for the Wyckoff job after Edwards had completed the duct work. Because the Respondent pulled the permit after the work had begun, he had to pay the Lake County Building Department a double fee for this permit. The Respondent pulled the mechanical permit as a favor to Baugh's Electric. The Respondent did not know that the duct work for the air conditioning job had begun. He knew he was to perform some air conditioning work for Wyckoff on a house, but he did not know which house it was, or where it was located. The Respondent completed the air conditioning work, and on August 21, 1985, submitted to Wyckoff an invoice in the amount of $2,200 for the work. Even though the invoice was on the letterhead of the Respondent's company, Hunter Air, the invoice was filled out by G. Baugh. Wyckoff paid the Respondent for the air conditioning work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Thomas W. Hunter, be found guilty as charged, and that he be assessed an administrative fine in the amount of $1,000. THIS RECOMMENDED ORDER entered on this 24th day of September, 1986 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of September, 1986. COPIES FURNISHED: Errol H. Powell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas W. Hunter 502 Citrus Avenue Eustis, Florida 32726 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Seely Executive Director Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201
