The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of March, 2006.
Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS 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 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner was born on March 14, 1960. At the time of this hearing he was 22 years old. Petitioner moved to Florida from Arkansas in March, 1981, and subsequently applied for and was issued a State certificate as a general contractor in February, 1982. While in Arkansas, Petitioner obtained a license as a master electrician (Exhibit 1) and his company, American Enterprise Electric, was licensed as an electrical contractor (Exhibit 2). The electrical contractors' license was obtained without examination, as Petitioner was doing electrical contracting when the Arkansas licensing law was passed in 1979. Petitioner started working for his father, a general contractor in Arkansas, at an early age and was doing electrical work in his early teens. He took over the electrical end of his father's contracts, prepared bids, supervised, and did most of the electrical wiring on several apartment buildings, office buildings, and single family residences through his late teens. In 1978 Petitioner started his own business as an electrical contractor in Arkansas. He subsequently added air conditioning and electronics work. Operating as Allgood Electric, Petitioner did the electrical work on residences, apartment buildings and office buildings in which others were the general contractor. In his application, Exhibit 4, Petitioner dates 3/30/78 as the start of his electrical contracting company. The last job reported on Exhibit 4 is dated 9/1/80, shortly before Petitioner moved to Florida. From 3/7/78 through 9/1/80 Petitioner lists on Exhibit 4 a total electrical contractor dollar value of $60,000 with two of these jobs accounting for $35,000. Petitioner holds no local license as an electrician or electrical contractor. No evidence was presented of the electrical contracting done by his company in Florida, although he testified he has a qualifying agent to allow his company to do electrical contracting.
The Issue The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.
Findings Of Fact Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006). David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average, Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him." Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final inspections without ever notifying him. In response, Petitioner told Don to "at least call me." Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board. Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of March, 2007. COPIES FURNISHED: Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Howard Andrew Swett, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Department arbitrarily evaluated the bids submitted for State Job No. 10120-3522, or reviewed the bids in any manner that was fraudulent, illegal or dishonest. Whether the Department should set aside its notice of intent to award and rebid the contract. Whether Petitioner Kelly Brothers or Intervenor Tom Quinn was the lowest responsive bidder instead of Intervenor Hubbard, the prime contractor named in the notice of intent to award.
Findings Of Fact State Job No. 10120-3522 is a road construction project on State Road 674 that begins east of US 301 and ends at Pierce Bridge in Hillsborough County. The Department solicited for bids on the work and established June 19, 1991, as the date project bids were due. As part of the bidding documentation, prime contractors who submitted bids were required to use the bid blank issued by the Department for that purpose. In addition, prime contractors had to certify that they understood the Disadvantaged Business Enterprise (DBE) goal for the project was 11 percent of the total dollar amount bid for the project. All of the parties to this bid protest certified that they understood the DBE goal for this project. The 11 percent DBE goal was a bid specification that was not timely challenged through the bid solicitation protest process within 72 hours of receipt of project plans and specifications. Bidders who were unable to fully comply with the contract DBE goal were required to demonstrate good faith efforts had been made to meet the DBE goal. The means used by the Department to evaluate the good faith efforts were set forth in Rule 14-78.003, Florida Administrative Code, and the bid specifications. Kelly Brothers submitted the low bid on this project with the total project bid of $2,311,322.78. The dollar amount for the DBE goal listed on the DBE Utilization Form completed by Kelly Brothers was $205,989.12. The multiplication of this sublet amount into the project bid shows that Kelly Brothers achieved only 8.91 percent of the 11 percent DBE goal. To support its good faith efforts to meet the DBE goal, Kelly Brothers noted on the DBE Utilization Form that bid quotes were solicited from eleven certified DBEs on the project. It was further represented that seven of those contacted responded to Kelly Brothers' request, and two were actually used in the project bid submitted to the Department. Documentation of these good faith efforts as set forth in Rule 14- 78.003, Florida Administrative Code, and the bid specifications were not submitted with the bid. Instead, the DBE Utilization Form filed by Kelly Brothers simply stated, "Telephone log will be submitted if necessary." During the bid protest proceeding, Kelly Brothers supplied evidence of price quotes received from one DBE. This subcontractor was not listed on bid documents and the quotes were not included in the bid. Tom Quinn submitted the next lowest total project bid of $2,406,167.54. The dollar amount listed for DBE participation on the DBE Utilization Form submitted by Tom Quinn was $262,327.80. The multiplication of this sublet amount into the project bid shows that Tom Quinn achieved 10.9 percent of the 11 percent DBE goal. The person who completed the bid documents for Tom Quinn rounded the DBE utilization calculation to 11 percent, contrary to the mathematical procedure for the rounding of numbers set forth on the form. The goal was improperly rounded to the nearest tenth as opposed to the nearest tenth percent. Tom Quinn did not submit documentation of its good faith efforts to comply with the project's DBE goal. A reasonable inference exists that Tom Quinn did not submit the documentation because its mathematical error mistakenly shows that the DBE goal was met in its bid submission. Hubbard submitted the third lowest project bid of $2,748,991.70. The total dollar amount for DBE goal listed was $302,794.32. Nine DBE's were utilized by Hubbard. The calculations to determine the DBE percentage of the total project show an 11.01 percent DBE goal was achieved. The four remaining bids reached a DBE percentage of the total project that met or exceeded the DBE goal.
Recommendation Based upon the foregoing, it is recommended: The Department's evaluation of the bids submitted for State Job No. 10120-3522 should be upheld as a proper evaluation. The bids received from Kelly Brothers and Tom Quinn on State Job No. 10120-3522 should be deemed nonresponsive for failure to achieve the DBE participation goal and for failure to submit sufficient documentation of good faith efforts. The bid protests in this proceeding should be denied and the bid awarded to Hubbard, the apparent responsive low bidder. RECOMMENDED this 25th day of October, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5337BID Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #12. Accepted. Accepted. Rejected. Contrary to fact. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #2 and #5. Accepted. See HO #4. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #6. Accepted. Accepted. Accepted. See HO #12 and #13. Accepted. See HO #9 and #12. Rejected. Contrary to fact. Intervenor Tom Quinn's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. COPIES FURNISHED: Michael F. Kayusa, Esquire TITUS & KAYUSA 1922 Victoria Avenue, Suite A Fort Myers, Florida 33911 Susan P. Stevens, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Rm 562 Tallahassee, Florida 32399 0458 Bruce Leinback, Esquire Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Tallahassee, Florida 32301 Thomas P. Parks, Qualified Representative Tom Quinn Company, Inc. 1321 77th Street East Palmetto, Florida 34221
Findings Of Fact On September 12, 1995, Petitioner became a Florida Power customer. He received electricity service in his name at an apartment located at 2950 N. Pinehill Road #31, Orlando, Florida. From September 1994, through December, 1994, Petitioner occupied the apartment at 2950 N. Pinehill Road #31, Orlando, Florida. Petitioner's meter indicated he used 827 Kwh from September 12, 1994, through October 4, 1994. Petitioner's meter indicated he used 1525 Kwh from October 4, 1994, through November 2, 1994. Petitioner's meter indicated he used 1548 Kwh from November 2, 1994, through December 5, 1994. Petitioner's final bill was for December 5, 1994, through December 28, 1994. The meter indicated he used 221 Kwh for this final period. Respondent's tariff sheet 8.05 filed with the Commission sets forth the length of time within which Respondent must disconnect a customer's service after receiving a disconnect order. Respondent must disconnect service within 3 days of receiving the disconnect order. On December 26, 1994, Petitioner requested that his service be disconnected on December 27, 1994. Respondent disconnected Petitioner's service on December 28, 1994. On January 12, 1995, Petitioner's meter was tested in St. Petersburg, Florida. Petitioner's meter registered 99.96 percent accuracy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Commission enter a Final Order finding that Respondent acted in compliance with applicable law and did not overbill Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1995. DANIEL S. 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 2nd day of January, 1995. COPIES FURNISHED: Rodney Gaddy, Esquire Florida Power Corporation 3201 34th Street, South St. Petersburg, Florida 33711-3828 Thomas Fuller Post Office Box 617217 Orlando, Florida 32861 Robert D. Vandiver, General Counsel Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Noreen S. Davis, Director Division of Legal Services Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
The Issue Whether Petitioner's application for certification as a minority business enterprise should be granted.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Spivey Utility is an active for-profit Florida corporation headquartered in Odessa, Florida. The company was formed in August 1986. Sandra Spivey (Mrs. Spivey) provided the initial capital for the company in the amount of $500. Since 1986, the company has grown significantly. Its gross revenues for 2001 were over $11 million. At the time Spivey Utility was formed, Mrs. Spivey was a full-time school bus driver and her husband worked for another excavating company. Between 1986 and 1991 (when she retired from school bus driving), Mrs. Spivey devoted several hours each weekday to running Spivey Utility, and on the weekends she worked as "grunt" (e.g., carrying conduit) for her husband on job sites. Since 1991, Mrs. Spivey has devoted all of her time to running Spivey Utility. The company currently employs 170 people, but it is still a "family business." All of the outstanding stock of Spivey Utility is owned by Mrs. Spivey and her five children. Mrs. Spivey is a white female. She owns 51 percent of the company's outstanding stock. Her daughter Collette Lazar (Ms. Lazar) is also a white female, and she owns ten percent of the company's stock. Thus, white females collectively own 61 percent of the outstanding stock of Spivey Utility. These ownership percentages have not changed since the stock was first issued in October, 1986. Mrs. Spivey's sons, all white males, own the remainder of the stock in the following percentages: Jim Spivey (15 percent); Steve Spivey (ten percent); Daniel Spivey (seven percent); and Tim Spivey (seven percent). Mrs. Spivey's husband, Verlyn Spivey, does not own any of the corporation's stock. The Schedule K-1 tax returns of Mrs. Spivey, Ms. Lazar, and Mrs. Spivey's sons demonstrate that their shares of the company's income is commensurate with their ownership percentages. Mrs. Spivey is the president and chief executive officer of Spivey Utility. She is also a member of the board of directors. Ms. Lazar is secretary of the company. She is also a member of the board of directors. Spivey Utility's bylaws provide that "[t]he business affairs of the corporation shall be managed by its board of directors." Bylaws at Article III, Section 1. Accord Section 607.0802. The bylaws further provide that the president shall supervise and control all of the business affairs of the corporation "subject to the control of the directors." Bylaws at Article IV, Section 5. The board of directors has seven members. In addition to Mrs. Spivey and Ms. Lazar, the board consists of Mrs. Spivey's husband and her sons. Thus, five members of the board are white males and only two members are white females. Five (of seven) directors are required for a quorum of the board of directors. As the holder of more than 51 percent of the company's outstanding stock, Mrs. Spivey has the authority under the bylaws to remove any of the directors and replace them with persons of her choosing. See Bylaws at Article II, Section 9 (stockholders entitled to one vote per share and directors elected by plurality vote); id. at Article III, Section 9 (directors may be removed with cause by the board or stockholders and without cause by the stockholders). However, Mrs. Spivey testified at hearing that she had no intention of removing her children as directors because Spivey Utility was a "family business." Over the years there have been disputes among the board members regarding company policy but, in the end, Mrs. Spivey always made the final decision. She testified that her final decision has never been overruled by the board and testified that she could not conceive of it ever happening. She further testified that, if it ever came down to it, she would overrule the board's decision overruling her through her ownership of the majority of the company's stock. Similarly, Ms. Lazar testified that Mrs. Spivey makes the final decisions, despite what the board might want to do because she owns the most stock. Spivey Utility is in the underground excavating business. Its articles of incorporation describe the nature of its business as "engag[ing] in all activities relating to the installation and maintenance of telephone cable and conduit." Articles of Incorporation, at Article II.a. Similarly, paragraph 8 of the MBE application described the nature of the company's business as "[u]nderground utilities, install manholes, place conduit, pull cable, fiber optic, directional boring, trenching & conventional boring." The largest portion of Spivey Utility's business is installing underground cable and conduit for telecommunications companies and utility providers such as Verizon and Tampa Electric Company. The company also has a water and sewer division which installs water and sewer lines, as well as a site preparation division which clears land for development. The water and sewer and site preparation divisions constitute only ten percent of the company's business. The company does not install or hook up "hot" wires, i.e., wires which are electrically charged. It only installs empty conduit and "cold" wires. The underground excavating work conducted by Spivey Utility does not require extensive technical training. At hearing, it was described as "glorified ditch digging." Mrs. Spivey's sons supervise the field operations of the various divisions within the company, and her husband oversees the bidding and contract work done by the company. Ms. Lazar provides administrative support for the corporation. Mrs. Spivey's sons each have more than 20 years of experience in the underground excavation industry. Her husband has almost 50 years of experience in the industry. Despite the delegation of supervisory authority of the field work to her sons, Mrs. Spivey remains actively involved in the day-to-day operations of the company. She is in direct communication with her sons on a daily basis to ensure that they have all of the equipment and resources they need to perform their work. They come to her when they need additional resources. Mrs. Spivey is 67 years old, but she is still comes to the office on a daily basis. She spends most of her time in the office dealing with financial matters and overseeing work in the shop where equipment is serviced and repaired. She generally does not spend time in the field, although she has done so when necessary. Mrs. Spivey has the authority to hire and fire employees and she has done so when necessary. She has also shifted employees, including her sons, from one division of the company to another to enhance the company's operation. Mrs. Spivey controls all of the financial aspects of the corporation. Her signature is required on all contracts to bind the corporation, including bids prepared by her husband or sons. Neither her sons nor her husband has the authority to bind the corporation. No financial decisions are made without Mrs. Spivey. The company's CPA testified that Mrs. Spivey is the only person in the company that has expertise in financial matters. Mrs. Spivey is the sole personal guarantor for Spivey Utility's lines of credit, indemnity agreements, and bonding line. Mrs. Spivey and Ms. Lazar sign nearly all of the checks written by the corporation out of the company's primary account with Sun Trust Bank. The authorized signatories for that account include, in addition to Mrs. Spivey and Ms. Lazar, Mrs. Spivey's sons: Steve Spivey, Daniel Spivey, Jim Spivey, and Tim Spivey. Only one signature is required on that account; no countersignature is required. The purpose of the sons being signatories on the account was for convenience in the event Mrs. Spivey or Ms. Lazar was unavailable. Although there is no formal limitation with the bank on the authority of Mrs. Spivey's sons to write checks in any amount, the evidence shows that the sons "know better" than to write checks for amounts in excess of $1,000 or so. It was apparent from her testimony that Mrs. Spivey has a keen understanding of the business operations of the company. Although she does not, and has never, performed the excavating work done by the company, she has been in the field to watch the work. She was able to explain and distinguish between the various types of excavating done by the company (e.g., jack and bore, directional boring, etc.) as well as the process and purpose of de-watering soil. She was also able to explain and discuss changes in the industry, including the need for specialized equipment and increased liability insurance when laying fiber optic cable. Mrs. Spivey's testimony also demonstrated her understanding of the company's operations. She is intimately familiar with the various divisions of the company and the services they perform and the clients they serve. Similarly, she demonstrated her familiarity with equipment and inventory of the company, such as the type, number, and cost of trucks, backhoes, and boring equipment owned by the company. Mrs. Spivey gained her knowledge of the excavating business from her husband who has been in the business for almost 50 years. As noted above, in the early years of the company, Mrs. Spivey often accompanied her husband on the job- site and assisted him as a "grunt" on the job. Spivey Utility has a certificate of authority from the CILB. The certificate is not a license to perform work. It only allows the company to do business if it has a qualifier. Spivey Utility has two qualifiers, Robert King in the areas of underground excavating and pollutant storage and Robert Burns in electrical. Neither of those individuals is a member of the Spivey family nor are they owners, officers, or directors of Spivey Utility. Spivey Utility obtained the certificate of authority when its water and sewer division was formed three years ago. Prior to that, Spivey Utility did not hold any state licenses or certificates. Neither Mrs. Spivey nor Ms. Lazar is registered or certified as a contractor by the CILB. Mrs. Spivey does have a commercial driver's license which authorizes her to drive vehicles, which weigh up to 26,000 pounds, including some of the company's dump trucks. The Department did not perform an on-site investigation of Spivey Utility in connection with its review of the company's MBE application. The Department's decision to deny the application was based solely on the information presented by Spivey Utility with its application and the supplemental information it provided on August 2, 2001, pursuant to the Department's request. The résumés included with Spivey Utility's MBE application and the supplemental job descriptions provided in the August 2, 2001, letter are not comprehensive and do not fully reflect Mrs. Spivey's understanding of or control over the management and daily operations of the company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order which grants Spivey Utility's application for certification as a minority business enterprise. DONE AND ENTERED this 18th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 18th day of March, 2002.
