The Issue The issues in the case are whether the Respondent was required to carry workers' compensation coverage for certain individuals, and, if so, whether the Petitioner correctly assessed a penalty against the Respondent.
Findings Of Fact On September 18, 2003, Tracy Gilbert, an inspector employed by the Petitioner, visited a residential construction worksite located at 3109 West Sunset Drive, Tampa, Florida. At the time of her visit, Ms. Gilbert saw three unidentified men painting the interior of a two-story residence. The men were wearing t-shirts bearing the Respondent's name and a telephone number. She attempted to speak to the men, but none spoke English, and Ms. Gilbert was unable to communicate with them. Ms. Gilbert attempted to obtain information from a fourth unidentified man who arrived at the construction site while she was present, but the evidence fails to establish that any relevant information was obtained. Ms. Gilbert then located the construction site permit board, and as she examined the board, a fifth unidentified man wearing a t-shirt bearing the Respondent's name and a telephone number, walked up to her and gave her a business card with the Respondent's information on it. Ms. Gilbert called the telephone number printed on the t-shirts and business card and left a message. Within a few minutes, Richard T. Killam returned her call. Mr. Killam is the owner and operator of the Respondent. Ms. Gilbert advised Mr. Killam of what she had seen. Mr. Killam advised Ms. Gilbert that the individuals she had seen were not his employees, and stated that they were employed by an individual identified as Mauro Makawachi (Mauro) to whom the job was "subcontracted." Mr. Killam provided a telephone number to Ms. Gilbert, which he identified as that of Mauro. The Respondent contracts with general contractors for painting jobs at various construction sites. In situations where additional labor is required, including the one at issue in this proceeding, the Respondent has on occasion hired Mauro to work on those jobs. The evidence fails to establish the existence of any written contract between Mr. Killam and Mauro related to the worksite at issue in this proceeding. Ms. Gilbert called the telephone number provided by Mr. Killam and had a brief conversation with the individual identified as Mauro, but apparently obtained no information regarding the situation during the conversation and has since been unable to establish further contact with Mauro. Although it is reasonable to presume that the unidentified persons observed at the worksite by Ms. Gilbert were being paid for their work, there is no evidence that the Respondent employed or paid the unidentified persons. Mr. Killam testified that he had arranged for the work at the jobsite to be performed by Mauro. It is reasonable to infer that the unidentified persons observed painting at the worksite by Ms. Gilbert were there at the direction of Mauro and would have been paid by Mauro. The Respondent asserts that Mauro is an independent contractor for whom the Respondent is under no obligation to obtain workers' compensation insurance coverage. Mr. Killam provided to Ms. Gilbert an affidavit of "independent contractor" status and a certificate of insurance both allegedly provided to him by Mauro. The evidence fails to establish that Mauro's affidavit reflected the actual terms of his work on behalf of the Respondent. Mauro's affidavit of independent contractor status indicates that Mauro incurred the "principle [sic] expenses related to the services or work" that Mauro performed for the Respondent. Mr. Killam testified that the primary expenses of a painting business are paint and labor. There is no credible evidence that Mauro maintained a separate business with his own materials. The Respondent paid for the paint used at the worksite. The affidavit indicates that Mauro held or had applied for a federal employer identification number. There is no credible evidence that Mauro held or has applied for a federal employer identification number. The affidavit indicates that Mauro performed specific amounts of work for specific amounts of money. There is no credible evidence that Mauro was paid on a commission or per-job competitive bid basis by the Respondent. The Respondent paid Mauro on a regular basis for labor performed during the pay period. Mauro's certificate of insurance identified the insurer as "Aries Insurance Company." Ms. Gilbert determined that Aries Insurance Company had stopped writing business prior to the date of issuance on the certificate of insurance provided by the Respondent to the Petitioner, and, therefore, the Certificate of Insurance was invalid. The Respondent leased some employees from Progressive Employer Services, which provided workers' compensation insurance for leased employees. Mauro was not a leased employee. There is no evidence that Mauro or the unidentified workers observed by Ms. Gilbert were exempt from workers' compensation requirements. The evidence establishes that the Respondent failed to provide workers' compensation coverage for Mauro. There is no evidence that the unidentified workers observed by Ms. Gilbert were provided with workers' compensation coverage by anyone. Based on the payroll records provided to Ms. Gilbert by the Respondent, Ms. Gilbert calculated the total amount of penalty directly attributable to payments by the Respondent to Mauro as $13,049.45.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a Final Order affirming the Stop Work and Penalty Assessment Order issued on September 22, 2003, as amended by the Amended Stop Work and Penalty Assessment Order issued on September 30, 2003. DONE AND ENTERED this 4th day of February, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2004. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Joseph E. Launikitis, Esquire Fuller, Holsonback, Bivins & Malloy 400 North Ashley Drive, Suite 1500 Tampa, Florida 33602 Honorable Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes. Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7). On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.) On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.) The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.) Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.) Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.) Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)
Recommendation That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry Sinoff, Esquire Blackstone Building Suite 1010 Jacksonville, Florida 32202 Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138
The Issue The issue for consideration in this case is whether Respondent’s certification as an electrical contractor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Pinellas County Construction Licensing Board was the county agency responsible for the regulation of the construction industry in Pinellas County, Florida. Respondent, William L. Crump, Jr., was certified as an electrical contractor under license C-1217 (ER003415), and was on record as qualifying contractor for Crump Electrical Service, which he owned. On September 25, 1997, a representative of Crump Electrical Services submitted a Proposal to Mrs. Christina Windsor, wife of the complaining witness herein, for the upgrading of the electrical panel in the Windsor’s home to 200 amperes. The price quoted for this service was $875.00. Small print on the proposal form indicates that permit fees, if required, are in addition to the cost cited. That same day, September 25, 1997, Mrs. Windsor authorized the work to be done. The work was done as called for. Respondent claims the proposal was made and the work done in response to an emergency call from the Windsors. September 25, 1997, was a Thursday. The city permitting office was open and a permit could have been obtained. No permit for the work was pulled at the time by either the Windsors or Respondent. Mr. Crump was of the opinion that because the Windsors had no power, the work should be done immediately without the delay of getting a permit. Though, he claims, he did not know of it at the time, he has subsequently learned that at the time in issue, the city had a policy whereby, in an emergency situation, a contractor could call in and get oral permission to do work requiring a permit, subsequently paying for and receiving the written permit. This was not done by either the Windsors or the Respondent. Mr. Crump did not pull the required permit after the work was done, or cause it to be pulled by an employee, because of the provision in the proposal form that the property owner was responsible for the cost of the permit. He claims to have advised the Windsors of the need for the permit and believed they had pulled it. The Windsors did not provide him with the extra funds for the permit and did not advise him they had not, or would not, obtain the permit. Though required, at no time was the permit pulled. Mr. Crump’s son and business associate, Todd Crump, contends that the real dispute in this issue relates not to whether the required permit was obtained, but to the Crumps’ failure to provide a statement as to the actual cause of the fire which necessitated the placement of the new electrical panel in the Windsor’s house. Todd contends that after talking with Mr. Dennison, the company’s representative who obtained the purchase order, shortly after the work was done, he got the impression the Windsors were going to obtain the permit. He did not find out that the permit had not been pulled until a month or so after he turned the request for the above-mentioned cause statement over to his father. Todd admits he should have followed up to see if the permit was pulled, but did not. Subsequent to the hearing, Mr. Crump filed a statement denying any intentional wrongdoing, and indicating his intent to give up his “personal business.” It is not known just what the term “personal business“ means. He claims that over the years he has donated significant amounts of professional service to the homeless and other needy persons in his area, but has ceased doing so because of the actions of the Board in attempting to discipline him. He contends the charges against him are unjustified and unwarranted and he implies there is a vendetta against him by the Executive Director of the Board. No independent evidence of this was presented. In a submittal subsequent to hearing, the Board Director recommended imposition of the maximum administrative fine of $1,000, a reprimand, and a one-year probation period with the requirement to file monthly reports on all work contracted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order imposing on Respondent William L. Crump, Jr., an administrative fine of $500.00 and a reprimand, and placing Respondent’s license on probation for a period of one year under such terms and conditions as the Board may proscribe. DONE AND ENTERED this 22nd day of July, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1998. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Suite 102 Largo, Florida 33773-5116 William L. Crump, Jr. 2112-J Sunnydale Boulevard Clearwater, Florida 34625
