Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1982.
The Issue Whether Petitioner is entitled to licensure as a Certified Building Contractor or Residential Contractor.
Findings Of Fact Petitioner is a 44-year-old male. He was born and raised in Tallahassee, Florida. He is a high school graduate. Petitioner passed the examination for licensure as a certified building contractor. This is a comprehensive examination that is designed to test knowledge in all aspects of the construction industry. Passing it is a mandatory prerequisite before an application can be considered by the Florida Construction Industry Licensing Board (FCILB). However, passing the examination does not eliminate or modify the statutory or rule experience requirements. Petitioner submitted his application for a certified building contractor license on or about March 24, 2008. By letter of May 2, 2008, the Department of Business and Professional Regulation requested additional information. Petitioner then provided a revised affidavit from Chad Banks, a certified building contractor, and a letter from the Maintenance Construction Chief of the City of Tallahassee’s Gas Utility Department, each containing more detailed information about Petitioner’s experience. These items were received by Respondent on May 23, 2008. It is not clear whether Petitioner requested and was granted a continuance of his appearance with regard to the instant license application at an earlier FCILB meeting, but on January 15, 2009, the full Board considered Petitioner’s application at a duly-noticed public meeting in Altamonte Springs, Florida. At that time, Petitioner was present. During his appearance before the full Board on January 15, 2009, Petitioner was very nervous, but he believes that one of the Board members offered him, or at least asked him if he would accept, a residential contractor’s license in place of a certified building contractor’s license, and that he answered that he would accept such a license, only to have that “offer and acceptance” voted down by the full Board. However, Petitioner does not rule out the possibility that the vote taken at the meeting was actually with regard to denying the certified building contractor license for which he had applied. There is no evidence that Petitioner has ever submitted an application for a residential contractor’s license. By a Notice of Intent to Deny, dated March 16, 2009, and mailed March 24, 2009, the FCILB formally denied Petitioner’s application for a certified building contractor License stating: The applicant failed to demonstrate the required experience, pursuant to Section 489.111, Florida Statutes and Rule 61G4- 15.001, Florida Administrative Code. Petitioner seeks licensure as one who has four years of active experience and who has learned the trade by serving an apprenticeship as a skilled worker or as a foreman, at least one year of which experience is as a foreman. Petitioner has never worked as a full-time employee of a commercial or residential contractor. Petitioner got early experience in construction working around eight rental properties owned by his father. He performed light carpentry, deck construction, general handyman repairs, and some plumbing and roofing when he was approximately 16 to 21 years of age. However, Petitioner essentially relies on a work history that includes working as a plumber for Jim Bennett Plumbing from 1987 to 1993; as a foreman for the City of Tallahassee Gas Department from 1995 to 2005; as a “contractor trainee” for Chad Banks from 1999 to 2002; as having volunteered as superintendent for Gulf Coast Painting from 2003 to 2007; and as a maintenance man for the City of Tallahassee Parks Department from 2006 to 2007. Petitioner’s dates of employment overlap, because his volunteer experience was acquired mostly on weekends, holidays, in hours after he had already completed a full work day for the City of Tallahassee, or on “time off” from his regular employments with the City. Petitioner is a hard worker and wanted to learn the construction trade, but his volunteer construction jobs were intermittent, and he provided no clear assessment of the number of hours per week or month that he put in for any of them. From 1987 to 1993, Petitioner worked for Jim Bennett Plumbing. He started as a plumber’s helper and progressed to greater responsibility. In that position, he acquired a wide range of experience in plumbing for some residential, but mostly commercial, buildings. During this period, he also did some light cosmetic carpentry and tile work to restore building parts damaged by the installation of plumbing apparatus. Much of Petitioner’s construction experience relates to his association with Chad Banks, who testified that at all times material, Petitioner had “hands on” experience, working for him and that Petitioner was a competent worker. Petitioner has never been a “W-2 employee” of Mr. Banks, but there is no specific statutory or rule requirement that the experience necessary to qualify for the certified building contractor or the residential contractor license must be as a “W-2 employee.” Cf. Conclusions of Law. Mr. Banks was not licensed as a certified building contractor until 1999. Petitioner did some work for Mr. Banks when Mr. Banks was working as a sub-contractor on commercial projects (specifically one or more Super-Lube buildings) prior to Mr. Banks obtaining his certified building contractor’s license in 1999. Most of this employment involved pouring concrete slabs. Petitioner claims experience in “elevated slabs,” limited to the construction of a single Super-Lube building, which Petitioner described as laying a slab below ground level for mechanics to stand on and an at-ground level slab for cars to drive onto the lift for an oil change. He described no truly “elevated” slabs or floors above ground level on this project, and Petitioner’s and Mr. Banks’ testimony was vague as to Petitioner’s responsibilities on this project and as to the project’s duration. The general contractor on this project for whom Mr. Banks “subbed” did not testify. From this, and other employments, Petitioner has experience pouring foundation slabs, but he has never worked on a foundation slab in excess of 20,000 square feet. Petitioner also assisted in Mr. Banks’ construction of some rental sheds, but it is unclear if this was before or after Mr. Banks was licensed. Petitioner worked for Mr. Banks d/b/a C. B. Construction, Inc., in a volunteer capacity on exclusively residential construction from 1999 to 2002, and again from February 2004 to March 2008. During these periods, Petitioner and Mr. Banks considered Petitioner a “contractor trainee,” but Petitioner’s work for Mr. Banks was neither exclusive nor continuous; both men described it as “volunteer” work; and some of it seems to have amounted to Petitioner's looking over work done personally by Mr. Banks and having Mr. Banks explain to him, via a plan sheet, what Mr. Banks had already done personally. There is no evidence that during this time frame Petitioner worked for Mr. Banks as a foreman. Petitioner has the ability to “read” many types of construction “plans.” Petitioner has experience with slab footers, but he has not constructed red iron structural steel qualified for framing a building. Petitioner has experience in decorative masonry walls, but he has not constructed structural masonry walls of a type that would support framing members of a building or other vertical construction. Petitioner also worked for the City of Tallahassee as a “W-2” employee, mostly as a foreman overseeing a crew of four workers, from 1995 to 2005. In that capacity, he worked on a church, but the church itself had been constructed several years previously, and Petitioner’s crew’s contribution was tying-in several gas lines during a roadway development project and keeping all the utilities up and running during the project, while a private contractor worked on the church. With regard to the foregoing project and many others for the City Utilities Department, Petitioner directed a crew that built sidewalks and gutters or that tied these features into existing roadways and driveways. In that capacity, he often coordinated activities with residential contractors. Over his ten years’ employment with the City Utilities, Petitioner also directed a crew that exclusively created underground vaults for the housing and shelter of utility apparatus. However, none of his endeavors for the City Utilities involved vertical structural construction for floors above ground. Petitioner has also built new gas stations for the City’s natural gas vehicles, and has erected pre-fab utility buildings, including much slab work, but the nature and duration of these endeavors is not sufficiently clear to categorize them as qualifying him for the certified building contractor license. Most of Petitioner’s experience with the City, as substantiated by the letter of the City Utilities Maintenance Construction Chief, Mr. Lavine, has been in the construction of driveways, roads, gutters, storm drains, sidewalks, culverts, underground utility structures, plumbing and gas lines. While it is accepted that Petitioner has worked on such projects, this type of work more properly falls in the categories of “plumbing contractor” or “underground utility contractor” and Mr. Lavine was not demonstrated to have any certification/licensure in a category appropriate to Petitioner’s application. (See Conclusions of Law.) Sometime after 2005, for approximately a year, Petitioner was employed by the City of Tallahassee Parks and Recreation Department and in that capacity participated in at least one construction of a dugout and a concession stand at one of its playgrounds. He also did repairs on several dugouts and concession stands, but this latter work would not be classified as “structural” construction. Petitioner’s experience in precast concrete structures is limited to his work with gas utility structures, but does not include work on precast tilt walls, which are the type of walls that are constructed off-site, delivered to the job site, placed on the slab foundation, and raised in place as part of an on- going commercial building project. Petitioner has no experience in column erection. “Columns” in this context within the construction trade refers to supports for upper level structural members, which would entail vertical construction. Petitioner’s experience in concrete formwork does not include experience in the structurally reinforced concrete formwork that would be used in vertical buildings, such as all floors above ground level. FCILB’s Chairman testified that the Board interprets the type of experience necessary to comply with the statutes and rules, more particularly Florida Administrative Code Rule 61G4- 15.001(2), to be “structural experience.” There is no affirmative evidence that Petitioner has ever notified the Clerk of the Agency that he was relying on a right to a default license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order denying Petitioner’s application for licensure as a Certified Building Contractor. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.
Findings Of Fact At all times relevant hereto Jonas C. Merricks, Respondent, was licensed by the Construction Industry Licensing Board, Petitioner, as a residential building contractor. In May 1981 Respondent was approached by John Oden regarding a building permit to add a room to the residence of Ms. Betty J. Wilson. Respondent testified he went to see Ms. Wilson to discuss the permit before pulling the permit; however, Ms. Wilson testified she did not see Respondent until after the word started. Regardless of the correct version Respondent pulled the permit for the construction knowing that he was not going to do the work. On May 23, 1981 Ms. Wilson entered into a contract with John Oden to construct an additional room on her residence. This contract was modified on May 26, 1981 to enlarge the room two feet and it is this contract (Exhibit 3), upon which the work was done. The contract made no mention of Respondent or of J & J Building Company which is owned by Respondent. Under the terms of the contract Ms. Wilson was to pay Oden one-third when walls were up, one-third when the roof was on and the final one-third when the job was completed. During the course of the construction Respondent appeared on the site a few times and straightened out existing problems. Ms. Wilson made all of her payments to Oden in accordance with the contract. However, she made the final payment before the work was completed. Her attempts to get Oden to satisfactorily complete the job were unsuccessful and Ms. Wilson complained to the Bureau of Consumer Affairs who referred her complaint to the Construction Industry Licensing Board which investigated and filed the complaint here under consideration. No evidence was submitted that Respondent pulled permits for work done by J & J Building Company. Evidence was presented that J & J Building Company is not licensed by petitioner. Respondent testified that he pulled the permit as a favor to Ms. Wilson and not for Oden, and that he did not know Oden had contracted with Ms. Wilson to do this job. However, Respondent did know that Oden was going to build the addition for Ms. Wilson; and, in his affidavit, Exhibit 5, Respondent acknowledged he had "helped out" Oden several times, that he was paid by Oden for work Respondent did on the premises, that payment for this work was made out to J & J Building Company, and that he supervised the work when he was on the premises.
