The Issue Whether Petitioner, Anthony McFarlane, was overpaid in the amount of $978.69 as a result of utilizing more administrative leave than that to which he was entitled.
Findings Of Fact Petitioner was an employee of the Agency's Central Office during the pay periods of February 14, 2014, to February 27, 2014; February 28, 2014, to March 13, 2014; and March 14, 2014, to March 27, 2014. Although the exact dates of Petitioner's employment by the Agency are unknown, he was also employed by the Agency and its predecessor entities prior to, and subsequent to, those dates for a total of approximately eighteen years. Petitioner retired from the Agency on April 4, 2014. Petitioner, prior to his retirement, attempted to use the surplusage of leave time he had accumulated for which he would not be compensated upon retiring. The Agency uses the People First system for the submittal of employee time sheets and tracking of individual employees' accrued paid leave time. The system maintains the amount of Annual Leave, Sick Leave, and Special Compensation Leave available to each individual employee. Further, although Sick Leave can be used at any time, Annual Leave cannot be used until Special Compensation Leave is depleted. Administrative Leave--Other is not maintained on an individual level and employees are not automatically prohibited from using more Administrative Leave--Other than that to which they are entitled nor are they required to deplete their Special Compensation Leave prior to using Administrative Leave. Administrative Leave--Other is made available to employees only in special circumstances such as an office closure due to a hurricane, plumbing leak, or air conditioner failure, or an unscheduled paid holiday authorized by the Governor. During the pay period of February 14, 2014, to February 27, 2014, Petitioner used sixteen hours of Special Compensation Leave (Code 0055) and sixteen hours of Sick Leave (Code 0052). During the pay period of February 28, 2014, to March 13, 2014, Petitioner used seventy-two hours of Administrative Leave-- Other (Code 0056). No special circumstances entitling Petitioner to take Administrative Leave--Other hours occurred during this pay period. During the pay period of March 14, 2014, to March 27, 2014, Petitioner used five hours of Special Compensation Leave (Code 0055) and seventy-five hours of Annual Leave (Code 0051). In February of 2015, the Office of the Inspector General published an audit of the Agency's human resources practices at its Central Office. The audit showed that seventy-two hours of Annual Leave were miscoded as Administrative Leave--Other, resulting in a $1,059.84 leave balance overpayment. The Agency then determined that Petitioner was the individual whose Annual Leave time had been miscoded as Administrative Leave--Other and had therefore been overpaid $1,059.84. After adjusting the amount for taxes and benefits withheld, the Agency concluded that the amount overpaid directly to Petitioner was $978.69. During the hearing, Petitioner for the first time realized and admitted that in his attempt to deplete his Special Compensation Leave before using his Annual Leave, he made an error in using Code 0056 (Administrative Leave--Other) when he intended to use Code 0055 (Special Compensation Leave).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner repay $100.00 per month to the Agency until the $978.69 balance is repaid in full. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 5th day of June, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony McFarlane 7971 Northwest 11th Street Plantation, Florida 33322-5158 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2016), by failing to secure the payment of workers' compensation coverage, as alleged in the Second Amended Order of Penalty Assessment; and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent sells roof coating and provides installation services in the Bradenton, Florida, area. The Investigation On April 20, 2015, the Department received a public referral that Respondent was operating without a roofing license or workers' compensation coverage. The case was assigned by the Department to Compliance Investigator Germaine Green ("Green"). Green first checked the Florida Department of State, Division of Corporations, Sunbiz website to verify Respondent's status as an active corporation. Green then checked the Department's Coverage and Compliance Automated System ("CCAS") to see whether Respondent had a workers' compensation policy or any exemptions. An exemption is a method in which a corporate officer can exempt himself from the requirements of chapter 440. See § 440.05, Fla. Stat. CCAS is the Department's internal database that contains workers' compensation insurance policy information and exemption information. Insurance providers are required to report coverage and cancellation information, which is then input into CCAS. Green's CCAS search revealed that Respondent had no coverage or exemptions during the relevant period. Because Green was not aware of any specific job site at which Respondent was working, she issued a Business Records Request ("BRR") No. 1 to Respondent seeking records for an audit period of January 1, 2015, through April 29, 2015, to determine compliance. Respondent provided payroll records and bank statements. Respondent's president, Felecia Bly ("Bly"), contacted Green and described the nature of the business as a roof coating business that sells a sealant that coats roofs to seal leaks and extend their longevity. Bly explained that Respondent used commissioned salesmen to review the county assessor's website to determine the square footage of a residence. The salesman then contacted property owners to determine whether they experienced leaks and offered the product and installation. The salesmen did not go on the roofs. Respondent considered its salesmen independent contractors to whom they issued IRS Forms 1099. Respondent used subcontractors to perform the installations. According to Respondent, these workers had their own businesses or exemptions. Respondent also used the services of part-time workers for a short period that addressed and sent post cards marketing Respondent's business. Based on her conversation with Bly, Green determined that the business should be categorized as "roofing," which is classified as National Council on Compensation Insurance ("NCCI") class code 5551 and is considered a type of construction activity under Florida Administrative Code Rule 69L-6.021(2)(cc). Green also determined Respondent was non-compliant with the obligation to secure workers' compensation coverage for its workers. The corporate officers did not have exemptions, and several individuals, identified as sales and roofing subcontractors, did not have their own businesses or exemptions and, therefore, were employees. Petitioner did not issue a Stop-work Order because Respondent came into compliance on June 22, 2015, by securing exemptions for the corporate officers. Petitioner issued a BRR No. 5 for additional records from July 1, 2013, through June 21, 2015, to make a penalty calculation for the two-year period of non-compliance. Penalty Calculation The Department assigned Penalty Auditor Christopher Richardson ("Richardson") to calculate the penalty assessed against Respondent. Richardson reviewed the business records produced by Respondent and properly identified the amount of gross payroll paid to Respondent's workers on which workers' compensation premiums had not been paid. Richardson researched Respondent's corporate officers and Respondent's subcontractors to determine those periods when they were not compliant with chapter 440 during the audit period. Richardson determined that Respondent was not compliant for the period of June 22, 2013, through June 21, 2015. Respondent's compliant subcontractors (those with their own workers' compensation insurance or exemptions) were not included in the penalty. The business records ultimately produced by Respondent were sufficient for Richardson to calculate a penalty for the entire audit period. The initial OPA was in the amount of $257,321.16. After receiving and reviewing additional records supplied by Respondent, an Amended OPA was issued in the amount of $51,089.52. After a deposition of Bly's assistant, Sueann Rafalski ("Rafalski"), who provided additional details regarding those individuals and businesses identified in the Amended OPA, a 2nd Amended OPA was issued on July 18, 2016, in the amount of $43,542.16. During the hearing, Respondent disputed a few items that the Department subsequently voluntarily removed in the 3rd Amended OPA. The Department's Motion for Leave to Amend Order of Penalty Assessment was granted on September 29, 2016. Respondent disputed the inclusion of referral fees to Hicks and Campbell, a customer reimbursement payment to Robert Nyilas, payment to House Medic for work done on the Bly's home, and a loan repayment to the Bly's son, Brian Bly. The Department correctly removed any penalties associated with Hicks, Campbell, Robert Nyilas, House Medic, and Brian Bly. The Department also removed $14,200.00 from the penalty that Respondent disputed as repayments toward a $150,000.00 loan from its corporate officers. Respondent continues to dispute the penalty calculation for all others identified in the 3rd Amended OPA, except for the inclusion of the payment to Unexpected Blessings. For the penalty assessment calculation, Richardson consulted the classification codes listed in the Scopes® Manual, which has been adopted by the Department of Financial Services through rules 69L-6.021 and 69L-6.031. Classification codes are assigned to various occupations to assist the calculation of workers' compensation insurance premiums. Richardson assigned the class codes based on information provided by Bly. Richardson then utilized the corresponding approved manual rates for those classification codes and the related periods of non-compliance. Richardson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)l. and rules 69L-6.027 and 69L-6.028 to determine the penalty. Penalty for the Blys Respondent admits that during the audit period, the business did not carry workers' compensation insurance coverage, and its corporate officers, Glenn and Felecia Bly ("the Blys"), did not have workers' compensation exemptions. Because neither Mr. nor Mrs. Bly was engaged in the application of the roofing materials, the Department correctly assigned class code 8742, for sales and marketing, to them. However, the Department miscalculated the gross income of the Blys. Respondent provided check stubs and its accountant's itemization of payments to the Blys, which constituted repayment of loans from Respondent to the Blys. No evidence to the contrary was presented to indicate these sums were anything other than loan repayments. The Department erroneously included these sums in its calculation of gross payroll to the Blys. Although the Department made a $14,000.00 deduction from gross income for the Blys during this period as "loan repayments," no explanation was provided regarding how this sum was ascertained and why the Department disregarded the information of Respondent's accountant showing repayments during the relevant period in the amount of $19,200.00. The Department obviously accepted the testimony of Bly that, in fact, a portion of what the Department previously concluded was gross income to the Blys, was rather repayments for loans made to Respondent. Accordingly, in the absence of any evidence by the Department of how it parceled out which portion of money paid to the Blys constituted wages and which portion was loan repayments, the Department failed to demonstrate clearly and conclusively that the penalty associated with payments to the Blys is accurate.2/ Penalty for Postcard Mailers Three women, Meghan Saulino, Kimberly Kalley, and Stacy Boettner, were identified by Bly as independent contractors she hired to address and mail postcards for Respondent. According to Bly and Rafalski, these workers were college students who did the work at home, on their own time, and were paid by the job. This arrangement did not last long because the women did not like the work, and the task was transferred to Minuteman, a printing and copying business. These women are included in the Second Amended OPA and are assigned class code 8742 for sales and marketing. Respondent contends they should not be included because they were not employees. No evidence was presented to refute that these three women were merely casual workers whose duties (addressing and mailing postcards) were not in the course of the trade, business, profession, or occupation of Respondent (selling and installing roof coating). Accordingly, the amount included in the penalty for their work, $78.18, should be excluded from the 3rd Amended OPA. Penalty for Commissioned Salesmen Respondent contends that its commissioned sales people are all independent contractors who performed jobs for others. These salespeople included Kevin Kalley, Robert Patton, Gino Barone, Scott De Alessandro, Scott Black, and Tim Paige. However, no evidence was presented of the independent contractor agreements for these individuals, certificates of exemption for them for the penalty period, or evidence that these individuals owned their own businesses. As such, the Department was correct in including the amounts received by the salespeople as gross income for purposes of the penalty calculations. Penalty for Roof Coating Installers Respondent similarly argues that its roof coating installers were independent contractors. The roof coating installers included Bill Boettner, owner of Unexpected Blessings who did not have an exemption during the penalty period, and his business, Unexpected Blessings. Again, no evidence was presented of certificates of exemption for the penalty period or evidence that Unexpected Blessings had coverage. As such, the Department was correct in including the amounts received by the roof coating installers as gross income for purposes of the penalty calculations. Penalty for Other Independent Contractors Respondent argues that Rafalski and Bobby McGranahan ("McGranahan") should not be included in the penalty calculation because they were independent contractors not directly associated with Respondent's business. Rafalski was hired by Bly to help with personal errands and to respond to the audit which serves as a basis for this action. McGranahan is alleged to have run errands for the roof coating installers and acted as a handyman for Respondent before becoming a salesperson for Respondent. It is undisputed that Rafalski and McGranahan performed duties directly related to Respondent's business. Although Rafalski testified at her deposition that she considered herself an independent contractor, it was clear she worked on-site and was the individual most familiar with Respondent's business operations and internal accounting practices. McGranahan's duties, of shopping for supplies for the roofing installers, and then selling for Respondent, were directly related to Respondent's business. No evidence was presented demonstrating that either Rafalski or McGranahan owned their own business or had an exemption. Accordingly, they were properly included in the Department's 3rd Amended OPA.
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 assessing a penalty against Respondent in the amount of $34,552.20. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of October, 2016.
The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment, and if so, what is the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure workers’ compensation coverage for the benefit of their employees. Respondent is a Florida, for-profit corporation with its principal office located at 3539 Apalachee Parkway, Suite 3-204, Tallahassee, Florida 32311. Respondent was incorporated on October 26, 2012, and has been engaged in the construction industry in Florida as a roofing company since October 31, 2012. From Respondent’s inception, Richard Paul Morejon has been Respondent’s president, secretary, and treasurer, and has received compensation from Respondent’s roofing contract proceeds. In July or August 2013, the Department received a complaint alleging that Respondent was not in compliance with Florida's Workers' Compensation Law. The Department assigned investigation of the complaint to then-Department investigator Carey Horn. Based upon materials apparently gathered and reports purportedly authored by Investigator Horn, the Department issued a stop-work order dated September 23, 2013, to Respondent alleging that Respondent did not secure workers’ compensation coverage for its employees as required. The Department, however, did not call Investigator Horn as a witness, and, despite Mr. Morejon’s attempt to subpoena her to testify in this case, Investigator Horn could not be found. The Department’s delay in referring this case for a final hearing either caused or contributed to Investigator Horn’s unavailability as a witness in this proceeding. The reports and conclusions of Investigator Horn were prepared in anticipation of litigation and are hearsay.2/ Therefore, they have not been used to support factual findings in this Recommended Order unless corroborative of non-hearsay evidence.3/ In addition, on October 20, 2014, the Department filed a document entitled "Joint Prehearing Stipulation" signed by the Department’s counsel and Mr. Morejon purporting to contain a number of stipulated facts and factual admissions by Mr. Morejon on behalf of Respondent. However, at the final hearing, the manner in which the Joint Prehearing Stipulation was procured was brought into question when Mr. Morejon advised that he was told to sign it and that the stipulation would be “ironed out” at the final hearing. The Department’s counsel confirmed that the conversation occurred regarding the correct classification code to be utilized in calculating the penalty against Respondent. Accordingly, it was ruled at the final hearing that the Joint Stipulation would not be used to support a finding regarding the classification. Upon further consideration of Mr. Morejon’s comments and the Department’s counsel’s admission as to the manner in which at least one of the stipulated facts was secured, the undersigned has not utilized and otherwise rejects as untrustworthy the document entitled "Joint Prehearing Stipulation" filed in this case on October 20, 2014, finding that it does not represent any bona fide stipulations or admissions. Nevertheless, in his testimony during his deposition and at the final hearing in this case, Mr. Morejon admitted a number of factual matters demonstrating that Respondent was not in compliance with Florida’s Workers’ Compensation Law on September 23, 2013. The factual findings in this Recommended Order are derived from Mr. Morejon’s testimony, non-hearsay evidence, and corroborative hearsay submitted during the final hearing. On September 23, 2013, Investigator Horn visited a jobsite at a residence located at 5747 Sioux Drive, Tallahassee, Florida (Jobsite), where Respondent, through employees, was performing roofing and related activities. On that date, Mr. Morejon was on the ground supervising two men on the roof engaged in roofing activities and two men on the ground picking up debris, for a total of five men, including Mr. Morejon, at the Jobsite working for Respondent. There was another man sitting in a vehicle at the Jobsite that day who never did any work for Respondent. There is no evidence that Respondent provided workers’ compensation coverage for any of the men working at the Jobsite that day. The two men working on the roof were Guadalupe Perez- Martinez and Hermilo Perez-Martinez. At the time, Guadalupe Perez-Martinez had an exemption from the requirements for workers’ compensation through his company, Lupe Builders, LLC. Although Hermilo Perez-Martinez previously had an exemption from the requirements of workers’ compensation through Perez Builders, LLC, that exemption expired the previous month, on August 3, 2013. There is no evidence that the two men picking up debris, Hermilo Pantaleon Paz and Timotio Aguilar, qualified for an exemption from workers’ compensation coverage that day. Although Mr. Morejon had an exemption from the requirements of Florida's Workers' Compensation Law for a separate and unaffiliated company, Comerxio, Mr. Morejon did not have an exemption from the coverage requirements of Florida's Workers' Compensation Law for Respondent on September 23, 2013, or during the relative time periods of this case. According to Mr. Morejon, other than Guadalupe Perez- Martinez, none of the other workers at the Jobsite that day had ever performed work for Respondent. Mr. Morejon also recalled that another person on the Jobsite that day, David Amaro- Rodriguez, just sat in a car and performed no work. Mr. Morejon’s recollections are unrefuted. The Department’s delay in referring this case undoubtedly affected the ability of either party to call other witnesses, including a number of the workers or the investigator, who were at the Jobsite that day. During the relevant time periods, Respondent did not maintain a bank account to pay its employees and it did not directly pay Mr. Morejon or other employees. Rather, historically, proceeds from roofing contracts performed by Respondent were deposited into a bank account held by another corporation named "A 2 Z Roofing, Inc." After paying various expenses, including permit fees, materials, and other costs associated with the roofing contracts, A 2 Z Roofing, Inc., paid Mr. Morejon, and any others performing work under the contracts, by check. On September 23, 2013, the Department personally served the Respondent with a stop work order (Stop Work Order) and a request for production of business records for penalty assessment calculation (Records Request). The Records Request requested Respondent’s corporate records, licenses, payroll documents, account documents, disbursements, contracts for work, employee leasing information, subcontractors, and workers' compensation coverage or exemptions "for the period from 10/31/2012 through 09/23/2013 [the Non- Compliance Period]." The Records Request further stated, in part: The employer should scan and email the records requested herein to the investigator with the Department of Financial Services, Division of Workers’ Compensation for examination within 5 business days after receipt of this Request for Production of Business Records. If the employer fails to provide the required business records sufficient to enable the Department of Financial Services, Division of Workers’ Compensation to determine the employer’s payroll for the period requested for the calculation of the penalty provided in section 440.107(7)(d), F.S., the imputed weekly payroll for each employee, corporate officer, sole proprietor, or partner shall be the statewide average weekly wage as defined in section 440.12(2), F.S. multiplied by 1.5. The Department shall impute the employer’s payroll at any time after ten, but before the expiration of twenty business days after receipt by the employer of a written request to produce such business records. (FAC 69L-6.028) If the employer is unable to scan and email these documents, please mail or deliver copies to our office located at 200 East Gaines Street Tallahassee, FL, 32399-4228. The next day, September 24, 2013, Mr. Morejon hand delivered Respondent’s business records to the Department in response to the Records Request. The business records delivered by Mr. Morejon included roofing permit applications; roofing permits issued to A to Z Roofing, Inc.; several contracts between homeowners and A to Z Roofing, Inc., identifying Mr. Morejon as project manager; five checks from A 2 Z Roofing, Inc. (not Respondent), payable to the City of Tallahassee; and 24 checks from A 2 Z Roofing, Inc., payable to "Mr. Morejon – Petty Cash." The 24 checks from A 2 Z Roofing, Inc., to Mr. Morejon totaled $55,955.4/ The checks, dated from November 17, 2012, to August 23, 2013, constitute all of the money paid to Mr. Morejon from Respondent’s roofing contract proceeds during the Non- Compliance Period. In addition to the 24 checks payable to Mr. Morejon, it is evident that the Department also received other checks from A 2 Z Roofing, Inc., from the records requests made in this case and in DOAH Case No. 14-2829, made payable to Lupe Builders, LLC, Gene Pfund, and perhaps others, during the Non- Compliance Period. The Department, however, did not utilize those records in its determinations in this case. In fact, the Department’s penalty auditor did not utilize payments made by A 2 Z Roofing, Inc., in calculating the penalty because, in the Department’s penalty auditor’s opinion, Respondent was not compliant because it did not have a bank account. Final Hearing Transcript, pp. 232-233. The determination of payroll, however, is not dependent on whether an employer has a bank account or whether the employer is the entity that pays its employees. Rather, the Department’s own rule defining payroll considers "[p]ayments, including cash payments, made to employees by or on behalf of the employer" in determining payroll. See Fla. Admin. Code Rule 69L-6.035(1)(b)(emphasis added). During the hearing, the Department, through counsel, stated that the payments from A 2 Z Roofing to Lupe Builders, LLC, or Gene Pfund were not considered because those entities had valid exemptions from the requirements of workers’ compensation. In addition, the Department complained that their receipt of bank records from A 2 Z Roofing, Inc., had been delayed and took the position that bank records from A 2 Z Roofing, Inc., would not be utilized in this case. The Department’s own discovery tactics, however, were responsible for delays in responses to its requests for records from A 2 Z Roofing, Inc.5/ Considering the records produced by Respondent introduced into evidence in this case, the testimony of Mr. Morejon regarding the checks payable to him from A 2 Z Roofing, Inc., the Department’s unwillingness to utilize other records from A 2 Z Roofing, Inc., in its possession, and evidence of the total payments to Mr. Morejon during the Non- Compliance Period, it is found that the Department’s decision to impute payroll is unfounded. Imputation of payroll would improperly allow the Department to benefit from its own lack of analysis. The imputed payroll determined by the Department in the amount of $347,334.69 exceeds Respondent’s total revenue for the Non- Compliance Period by more than $100,0006/ and is based, at least in part, upon hearsay evidence prepared by a witness whose unavailability was likely caused by the Department’s undue delay in referring Respondent’s Request for Hearing. Furthermore, the records produced by Respondent and the evidence in this case are sufficient to determine Respondent's payroll for use in the calculation of a penalty pursuant to section 440.107(7)(d)l. The evidence demonstrated that the $55,955 reflected in checks payable to Mr. Morejon from A 2 Z Roofing, Inc., represent all of the payments to Respondent’s employees who were not covered by workers’ compensation while performing services for roofing contracts during the Non-Compliance Period, other than payments reflected in records the Department may have in its possession but did not present at the final hearing. It was also shown, however, that the $55,955 was paid to Mr. Morejon without the maintenance of a cash log or cash journal and without securing the payment of workers' compensation coverage for Mr. Morejon or others receiving cash payments from those funds. And, there is no evidence that any of those employees were exempt from the requirements of workers’ compensation. Respondent was required to secure workers' compensation coverage and failed to secure that coverage under Florida’s Workers’ Compensation Law for its employees who were paid $55,955.00 during the Non-Compliance Period. Therefore, the Department was justified in issuing the Stop Work Order delivered to Mr. Morejon on September 23, 2013. Although the Department failed to show that Respondent’s payroll should be imputed, the evidence adduced at the final hearing demonstrated that a penalty should be imposed against Respondent for failure to pay workers’ compensation for its employees who were paid a total of $55,955 during the Non- Compliance Period. For determining the appropriate penalty, the Department has adopted a penalty calculation worksheet to aid in calculating penalties against employers pursuant to section 440.107, Florida Statutes. See Florida Administrative Code Rule 69L-6.027. The classification codes listed in the National Council on Compensation Insurance ("NCCI") Scopes® Manual have been adopted by the Department through Florida Administrative Code Rules 69L-6.021 and 69L-6.031. Classification codes are four-digit codes assigned to occupations by NCCI to assist in the calculation of workers' compensation insurance premiums. Under the descriptions listed in the NCCI Scopes® Manual, the proper classification code for Respondent’s employees is 5551, which corresponds to "Roofing - All Kinds and Drivers." The Department has adopted the approved manual rates in the Florida Administrative Code, as authorized by section 440.107(7). Rule 69L-6.027 adopts form number DFS-F4-1595, the Penalty Calculation Worksheet, which specifically incorporates approved manual rates. As accurately set forth in the Penalty Calculation Worksheets attached to the Amended Order of Penalty Assessment, the approved manual rates for the following periods of Non- Compliance were: From 10/31/2012 to 12/31/2012 the rate was 17.10; From 01/01/2013 to 06/30/2013 the rate was 18.17; From 07/01/2013 to 09/23/2013 the rate was 18.03. A breakdown of Respondent’s total payroll of $55,955 based upon check dates corresponding to the manual rates in effect during the Non-Compliance Period, is as follows: From 10/31/2012 to 12/31/2012 payroll totaled $6,300; From 01/01/2013 to 06/30/2013 payroll totaled $33,655; From 07/01/2013 to 09/23/2013 payroll totaled $16,000. Calculation of the penalty, using the Penalty Calculation Worksheet and Respondent’s payroll based on records (as opposed to imputed) during the Non-Compliance Period, results in a total penalty of $15,116.12, as follows: Calculation Method (a) Class Code (b) Non-Compliance period (c) Gross Payroll (d) /100 (e) Approved Rates (f) Premium (d)X(e) (g) Penalty (f)X 1.5 Records 5551 10/31/12 12/31/12 6,300 63 17.10 1,077.30 1,616.25 Records 5551 01/01/13 06/30/13 33,655 336.55 18.17 6,115.11 9,172.67 Records 5551 07/01/13 09/23/13 16,000 160 18.03 2,884.80 4,327.20 Totals: $55,955.00 $15,116.12 The clear and convincing evidence in this proceeding demonstrated that Respondent was in violation of Florida’s Workers’ Compensation law because it employed one or more uninsured employees in the construction industry throughout the Non-Compliance Penalty, and that the appropriate penalty, based upon Respondent’s payroll, is in the amount of $15,116.12.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order consistent with this Recommended Order upholding the Stop Work Order, and reducing the penalty set forth in the Amended Order of Penalty Assessment to $15,116.12 by recalculating the penalty based upon Respondent’s payroll of $55,955.00 during the Non-Compliance Period. DONE AND ENTERED this 5th day of February, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2015.
The Issue Whether Respondent violated Sections 489.129(1)(e), (h)1., (l), (n), and (r), Florida Statutes (1995), and if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent, Luis Delgado (Delgado), was licensed by Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), as a certified roofing contractor and as qualifying agent for Strong Roof, Inc. (Strong), having been issued license number CCC057175. The Lago Plaza Shopping Center (Lago) is a 154,000 square foot multi-tenant shopping center located in Hialeah, Florida. At all times material to this proceeding, it was owned by a New York real estate company named Emmes & Company through its subsidiary ABI Property Partners L.P. XIX (ABI). In 1996, the roof of Lago was in need of replacement. On February 5, 1996, ABI through its agent and property manager, Atlantic Western Asset Management (Atlantic Western), entered into a written contract with Strong to replace the roof for $185,000. On or about February 5, 1996, Strong provided Atlantic Western with a performance and payment bond for $185,000, as required by Article 21 of the contract between ABI and Strong. Unbeknownst to Atlantic Western at the time the bond was delivered, the performance and payment bond was not genuine, and Delgado knew that the bond was not genuine. The roof replacement work was completed by June 17, 1996. Unbeknownst to Atlantic Western, Delgado allowed Alberto Rodriguez (Rodiguez) and Galaxy Remodeling, Inc. (Galaxy) to use Delgado's contractor's license to obtain the building permit for the Lago project and to perform the work necessary to complete the project. At all times material to this proceeding, neither Rodriguez nor Galaxy was licensed to practice contracting in Florida, and Delgado knew they were not licensed. Pursuant to the contract, Atlantic Western made payments to Strong with seven checks payable to Strong in the total amount of the contract price of $185,000. The amounts and dates of the payments were as follows: $9,250 dated 2/14/96; $9,250 dated 3/13/96; $37,000 dated 4/2/96; $55,500 dated 4/11/96; $37,000 dated 4/27/96; $27,000 dated 6/13/96; and $10,000 dated 6/13/96. In exchange for each of the checks, Strong gave a signed release of lien representing that it had paid for all labor and materials used in the project Within 30 days after the last payment to Strong, Bradco Supply Corporation (Bradco), filed a claim of lien against Lago for $65,891.23 for roofing and/or siding materials ordered by "Galaxy Remodeling, Inc./Strong Rfg. Inc." On July 12, 1996, at the request of Atlantic Western, Delgado met at the shopping center with representatives of Atlantic Western and an attorney for the owner of the property to discuss the lien filed by Bradco. At the meeting, Delgado agreed to remove the lien, but he never did. Later Bradco sued to foreclose the lien, and the owner of Lago paid $60,000 to Bradco to have the lien removed. The owner unsuccessfully sought recourse against the payment bond, which turned out to be fraudulent. On or about June 17, 1996, when the work was completed, Strong gave a ten-year written warranty, which included correcting any leaks due to poor installation. Leaks were discovered, and Atlantic Western and the attorney for the owner reported the leaks to Strong, who failed to perform any correction work or otherwise investigate to determine whether its warranty would be applicable. Atlantic Western retained another roofing company to repair the leaks, at a cost of several hundred dollars. On or about September 27, 1996, the owner of Lago filed a lawsuit against Delgado, Strong, and others, alleging that the defendants breached the contract and committed various other civil wrongs related to the practice of contracting in reference to the roof replacement at Lago. On April 23, 1997, the lawsuit was mediated, resulting in a settlement agreement which was signed by Delgado individually and as president of Strong. Pursuant to the settlement agreement, Delgado admitted most of the factual allegations in the civil complaint and agreed to the entry of a judgment in the amount of $73,755.25. The settlement agreement provided that Delgado, Strong, Rodriguez, and Galaxy were to pay the plaintiff $2,500.00 by April 25, 1997; $2,500.00 by July 25, 1997; and $20,000.00 by August 25, 1997. The settlement agreement further provided that if the payments were not made, the plaintiff could execute on the judgment. On May 15, 1997, an Agreed Final Judgment was entered in accordance with the terms and conditions of the settlement agreement. The first $2,500.00 payment was made but no further payments have been made. The plaintiff garnished two bank accounts, totaling $3,084.28. At the time of the final hearing, there have been no other payments or collections toward satisfying the judgment, and the judgment remains unsatisfied. The judgment was not appealed and has not been discharged in bankruptcy. A motion for relief from judgment was never filed, and there has not been an agreement to receive periodic payments, other than as stated in the settlement agreement. As of August 10, 1999, the Department's costs of investigation and prosecution of this case, other than costs associated with attorneys' fees, totaled $473.25.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order as follows: Finding that Luis Delgado violated Sections 489.129 (1)(e), (h)1., (l), (n), and (r), Florida Statutes (1995), as alleged in the Administrative Complaint. Imposing administrative fines for each count in the Administrative Complaint as follows: Count I $750 Count II $500 Count III $3,000 Count IV $500 Count V $250 Count VI $500 Assessing Luis Delgado $473.25 for the costs of the investigation and prosecution incurred in this case through August 10, 1999. Requiring Luis Delgado to make restitution to ABI Property Partners L.P. XIX in the amount of $68,170.97 or, in the alternative, provide proof of satisfaction of the May 15, 1997, Agreed Final Judgment in Case No. 96-19621 CA (06) in the Eleventh Judicial Circuit in and for Dade County, Florida. Revoking Luis Delgado's certified roofing contractor license number CCC057175. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of September, 1999. COPIES FURNISHED: Luis Delgado 344 Northwest 136th Place Miami, Florida 33182 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Boulevard, Suite 300 Jacksonville, Florida 32211-7467 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In Claims Nos. 1, 12, 19 and 20 Petitioner seeks damages from the Department of General Services (hereinafer the "Department") for alleged job progress delays caused by the Department or its contractors. The hearing examiner in the original "Recommended Order" found that the Petitioner failed to ". . .establish a prima facie case justifying an award of monies in respect to the claim which he makes." The Petitioner took exception to this finding of the hearing examiner. A review of the record indicates that the Petitioner did establish the following facts from which it is concluded that contrary to the hearing examiner's finding, the Petitioner is entitled to recover damages in the amounts stated. On February 19, 1973, the Department of General Services advertised its formal invitation for bids for the "general contract" for the Humanities and Fine Arts Building, including the Rehearsal Building, at Florida Technological University, Project N. BR-3401-A. It is the performance of this general contract which is at issue in this proceeding. The bid-letting on this contract was held on March 21, 1973. The Petitioner's bid was $1,653,000.00, slightly below the next highest bidder. Because that bid exceeded the Architect's estimate, certain revisions to the specifications were negotiated, which revisions are reflected by Addendum No. 4 issued April 25, 1973, and the Petitioner's price was modified downward to $1,553,088.00. The contract was approved by the Department on May 1, 1973 and executed by the Department and the Petitioner on May 17, 1973. Notice to Proceed was issued to the Petitioner on June 5, 1973, with the contract requiring that their work be performed in 330 calendar days. The construction concept of the Humanities and Fine Arts Building was a pilot project, experimental in nature, for the Department to test the so-called "fast track" or "systems method" of construction for an education institution. This was the first such project ever undertaken by the Department. The project was not a traditional one wherein a general contractor contracts with the owner to perform all the work of the project and then hires subcontractors to assist in performing his contractual responsibilities. For this project the Department contracted separately and independently for each element of the project. For example, the Department contracted individually with one contractor to prepare the foundation and with another to erect the steel structure. Indeed, the Department contracted separately and individually with the several major interior-trades, as well as with a "general contractor". The Department entered into these other, separate contracts before it entered into a contract with the Petitioner. Thus, on this project, the "general contractor" was not responsible for the hiring and conduct of various contractors in the traditional manner of a general contractor. These various contractors are, for this project, referred to by the Department as "subsystems contracts would not be assigned by the Department to the general contractor, whereupon the relationship of the general contractor to the subsystems contractors would be that of separate and independent contractors, each bound separately and independently to the Department. Although the original intent and design of this project was that the first alternative would be chosen and the subsystems contractors assigned to the general, who would then bear the responsibility of their management, that alternative was not chosen. Rather, the second alternative was chosen wherein the subsystems contracts were not assigned to the general, and each contractor maintained an independent and separate status one to another. Such a situation involving "separate contractors" was a new experience for the Department. Previously the Department had always looked to a single contractor, the general contractor, to have overall control of the various subcontractors for the purpose of providing construction management. Here, for the major components of the project, there were no subcontractors contractually bound to a general contractor for construction management. The architectural firm which designed the project for the Department, Rowe-Paras Associates, was dissolved about the time the bid invitations were issued to general contractors for the project. Two groups emerged from the original architectural firm, each requesting that it be chosen to continue and finish the project. In late May, 1973, the Department selected Paras Associates, rather than Rowe-Holmes Associates, as the project architect to complete the project. It appears from the record that one or more architects who had a significant role in the development of this project, including the writing of its specifications, particularly the non-technical specifications, did not join Paras Associates. Therefore, as the project was being implemented, certain of those persons significantly involved in its development ceased to play a part in the projects's implementation except by their absence. This project was designed by the architects with the explicitly intention that before the general contractor came on the job, the foundation and structural steel would be substantially in place. The contract to construct the structural steel was awarded to Romac Steel Company (hereinafter referred to as "Romac"). Romac's contract called for substantial completion of construction of the structural steel within ninety (90) days from its Notice to Proceed. The project was designed so that after the substantial completion by Romac of the structural steel work, the general contractor would come on-site and, within 330 days from its Notice to Proceed, construct the masonry and other items within the general contract. Roof deck and insulation, roofing and flashing, heating, ventilation and air conditioning, lighting and interior partitions, carpet, and elevators were all to be constructed by separate contractors not bound contractually in any way or otherwise related to the general contractor. Although the project was designed so that Romac would substantially complete the erection of the structural steel before the general contractor was given a Notice to Proceed, the exact opposite actually occurred. Even though Romac had been awarded its contract approximately twelve months previously, the Department decided not to issue Romac its Notice to Proceed until the general contract had been awarded. This was apparently done for the benefit of the State so that the Department would know what the general contractor's price would be, and thereby maintain flexibility in staying within the budgeted funds for the project. Apparently for that reason, the Department, rather than issuing Romac a Notice to Proceed so that the structural steel could be in place for the general contractor, issued Romac's Notice to Proceed on June 5, 1973, simultaneously with that of the Petitioner,. Although this simultaneous issuance of the Notices to Proceed, contrary to the design of the project, was done for the benefit of the State, no changes were made in the Petitioner's contract to reflect this change in the basic scheduling concept of the project. Most importantly, no change was made in the 330 days allowed by the Petitioner's contract for completion even though that 330 days had been established by the Department's Architect directly on the assumption that the structural steel would be in place when the general contractor received his Notice to Proceed. In late April, 1973, approximately one month after the bid opening at which the Petitioner was the apparent low bidder, the Department informed the Petitioner that contrary to the design of the project upon which Petitioner's bid was based, Romac would receive a Notice to Proceed on the same day the Petitioner would receive its Notice to Proceed. Immediately thereafter, on May 1, 1973, the Governor and Cabinet approved the contract between the Department and the Petitioner and the contract was completely executed by all parties on May 17, 1973. The Petitioner was immediately concerned that the ninety (90) day construction time for Romac would have to be absorbed within the 330 days allowed the Petitioner to perform its responsibilities. The Petitioner's ability to perform was directly related to Romac erecting the steel upon which the Petitioner was to place the masonry. The Petitioner immediately expressed this concern to the Department. Upon being informed that Romac would start simultaneously, the Petitioner promptly engaged a company whose business is establishing critical path method schedules (hereinafter referred to as CPM schedules). The purpose for the development of this CPM schedule was to determine how, if at all, the various elements of the project could be coordinated so that the project could be completed within the original time frame. Representatives of the Petitioner and the Department's Architect met with the CPM company on May 11, 1973, and a CPM schedule was developed. A representative of the Department's Architect had contacted the other subsystems contractors and secured proposed work-progress schedules from them for incorporation in this CPM schedule. It does not appear from the Contract Documents that the Petitioner had any contractual responsibility to prepare a CPM schedule for use by the Department or its Architect and the Department that the Architect, in providing "project system management services", was responsible for the "preparation and maintenance of a Critical Path Analysis and resulting Bar Chart for scheduling and coordination of all systems and subsystems", and "coordination and scheduling of systems, subsystems and non-systems elements through the use of the Critical Path Analysis and resulting Bar Chart". Article 16, Hearing Examiner Exhibit 5. Hearing Examiner Exhibit 5 is the contract between the Department and its Architect. In addition to a fee for the basic services of the Architect of 6.25 percent of the Project Construction Cost, by that contract the Department agreed to pay the Architect an additional fee of $55,750.00 for "Project Systems Management Services as described in Article 16" of the contract. It does not appear that the Architect, at any time during the construction phase of this project, utilized any critical path analysis other than that prepared by the Petitioner. The CPM schedule prepared by the Petitioner showed that if the various subsystems contractors adhered to certain critical dates, the project might be built within the 330 days allowed by the Petitioner's contract. The Department's Architect approved and issued this CPM schedule to all of the contractors on the project as the work-progress schedule to be followed. This schedule of work was a fundamental change in the design schedule of the project. For this fundamental change in the project concept to work, all of the subsystems contractors would have had to not only adhere to their total number of work days required, but also to the critical days established by the critical path analysis for various elements of construction. Unfortunately, the critical path was violated almost immediately. Through no apparent fault of the Petitioner, Romac failed to adhere to the critical path schedule or its own schedule submitted in preparation of the project CPM. Romac did not substantially complete its contract until November 29, 1973, 176 days after the issuance of its Notice to Proceed. Thus Romac exceeded by 86 days the time in which it was required by its contract to complete its part of the project. Further the progress and sequence of Romac's erection of the structural steel was such that it necessarily significantly delayed the Petitioner in the completion of its contract. The evidence does not establish that the Petitioner was at fault for any of Romac's delays or that the Petitioner did not perform in a reasonable and diligent manner given the circumstances under which the Petitioner was required to perform. The Department argues that the Petitioner delayed Romac because of a dispute over Petitioner's responsibility for the waterstop to be installed when the concrete slabs were poured by Romac. This argument, however, is not supported by the evidence. On June 15, 1973, the Petitioner notified the Architect that Petitioner's interpretation of the specifications did not require it to install the waterstop. The Petitioner felt that Romac was required to install the waterstop in the concrete slab. The logic of this position is compelling since the waterstop would have had to be in place at the time the concrete slab was poured and the design concept of the project was that Romac would be substantially complete before the Petitioner even came on the job. Thus, it is difficult to understand that the Petitioner, rather than Romac, was intended by the specifications to install the waterstop. However, it took a little over two months for the Architect to resolve this dispute. Finally, the Architect wrote a letter to the Petitioner wherein the Architect states that "we have instructed Romac Steel Company to complete the pouring of the slabs on the second, third, fourth, and fifth floors eliminating the waterstop, shown on the drawings which were dated November 3, 1972, and issued February 19, 1973". The Architect then proposed a substitute procedure for the waterstop. Thus, even it the job were delayed by this issue, the delay is attributable to the Architect's tardiness in resolving the matter and not to the Petitioner. Since the Architect, albeit reluctantly and belatedly, ultimately agreed by its decision with the Petitioner's position, it does not appear that the Petitioner was unreasonable in raising the issue. Neither does it appear that the Petitioner delayed resolution of the issue. Any delay in resolution of the issue seems to rest with the tardiness of the Architect in arriving at an ultimate answer to the dispute. In fact, it is highly questionable whether the two-month delay of the Architect in resolving this dispute was the actual cause of delay on the project. It appears that Romac had difficulties with its concrete subcontractor because that subcontractor was nonunion while Romac's steel subcontractor was union. The tension of that situation seems to have made the concrete subcontractor very reluctant to begin pouring concrete on-site until the union steel subcontractor was finished and clear of the site. Ultimately, Romac lost its concrete subcontractor, and only with difficulty and delay did they acquire another concrete subcontractor who was able to perform the work. It appears that Romac's difficulty with its concrete subcontractor and the acquiring of a new concrete subcontractor caused significant delay and that the Architect's delay in resolving the waterstop dispute did not significantly delay the project since it was already delayed by Romac's trouble with its concrete subcontractor. Romac did not get another concrete subcontractor until September 6, 1973. A primary cause of the significant delay in the completion of this project was the lack of competent construction management. The Department argues that most, if not all, of the fault for this lack lies with the Petitioner, who failed to provide competent construction management for the project. The evidence is undisputed that the Petitioner never assumed responsibility for construction management of the entire project. While the Petitioner made several serious attempts at coordinating the other separate contractors or subsystems on the project, the Petitioner never attempted, or was allowed, to exercise construction management in the nature of that typically exercised by a traditional general contractor and necessary for the timely completion of a project. The reason for this was that the Petitioner, on this project, was not a traditional general contractor. As will be discussed in the Conclusions of Law, it does not appear that the Petitioner had any contractual responsibility to provide such traditional construction management on this project. It appears that there was a great deal of confusion among the contractors on this project, the Department, and the Department's Architect over who was ultimately responsible for the construction management of this project. That confusion appears to have been most intense on the part of the Department and its Architect. Senior managers within the Department at the time of this project testified that they did not look to the Architect for construction management, but rather, they expected the Petitioner to provide the construction management traditionally provided by a general contractor. However, in contradiction of this testimony, the Department's on-site project manager took the unequivocal position throughout the pendency of the project, that in this type of project the Architect was to provide construction management and not the Petitioner. The Department's project manager wrote numerous letters and memos expressing this position, and throughout the project conducted his responsibilities on behalf of the Department with the premise that the Architect was responsible for construction management. Interestingly, the Chief of the Department's Bureau of Construction was at the time of the project testified that it was his position during the project that responsibility for "coordinating" the entire project lay with the Petitioner, not the Architect. This witness suggested that construction management was to be provided not by the Architect, but by the Petitioner. He further testified that the Petitioner failed to provide such construction management and that he knew of this failure on the part of the Petitioner. Yet, pointing up the confusion in this project, this same Chief of the Bureau of Construction then testified that he took no steps to notify the Petitioner that it was failing its alleged contractual responsibility of properly coordinating and managing the project. It is difficult to comprehend why, if the Chief of the Bureau of Construction truly felt at the time that the Petitioner was contractually responsible for providing construction management, he would not have taken steps to make the Petitioner aware that its failure to provide such construction management was critically delaying completion of the project. The Petitioner was never notified by the Department or the Architect that it was in default of its contract for any alleged failure to perform required construction management services. If, during construction of the project, the Department felt that the Petitioner was contractually responsible for construction management, it is strange that, with no attempt to enforce that contract, the Department would look to the Architect for those construction management services as it did ultimately. Compounding the difficulty in understanding the testimony of the Department's witnesses relating to Petitioner's management duties is the fact that in early October, 1973, the Department solicited an offer from the Petitioner to perform construction management services from that point forward for a fee of $25,000.00. If the Department felt that the Petitioner was already contractually bound to provide such services, why did it even discuss an additional fee and contract for them? The Department ultimately rejected the Petitioner's offer which it had solicited, and entered into a further agreement with the Architect wherein the Architect was to assume construction management and coordination of the project. Pursuant to this agreement the Architect on November 5, 1973, employed a construction manager. The Department paid for the services of this construction manager from November 5, 1973, to December 31, 1973. He continued as the construction manager until mid-1974 presumably being paid by the Architect. Some time in December, 1973, the construction manager hired by the Architect left the job site and thereafter operated from the Architect's office in Tampa. Even after the employment by the Architect of the construction manager, the construction management of the project remained marginal at best. This agreement between the Department and the Architect was apparently in addition to their agreement set forth in Hearing Examiner's Exhibit 5 wherein for a fee of $55,750.00 the Architect agreed to provide "Project Systems Management Services" defined in Article 16 thereof as: Analysis of total construction project and division of the total project into workable systems and subsystems. Preparation and maintenance of a Critical Path Analysis and resulting Bar Chart for scheduling and coordination of all systems and subsystems. Preparation of performance specifications for each system and subsystem including drawings as required to obtain competitive bids. Evaluation of proposals for compliance with design parameters and to obtain the best combination of systems and subsystems proposals. Revisions of drawings and specifications to fit the combinations of systems and subsystems proposals finally agreed to. Coordination and scheduling of systems, sub- systems and non-systems elements through the use of the Critical Path Analysis and resulting Bar Chart. Coordination of new contract procedures for the transferable contracts required by Fast Track Bidding and construction. Resolution of any interface problems that may result between systems and/or subsystems. Fast-Track Management of the Systems or Sub- Systems where economically beneficial. Evaluation, including In-depth Comparison Reports of System vs. Standard Approach to construction during all stages. (Emphasis added) Instead of the 330 days allowed by the contract for the Petitioner to complete his part of the project it actually took 511 days, or 181 days beyond the required completion date of the contract. It is interesting to note that this excess time, 181 days, is almost exactly equal to the length of time it took Romac, the steel contractor who was supposed to be complete before the Petitioner even went on the job, to complete its contract. Romac took 176 days to reach substantial completion. Romac's contract called for completion in 90 days. On any complex project such as this, it is difficult, at best to define, minute-by-minute, the reasons for and extent of any delay in construction. It is reasonable, however, on the face of this record to find as a matter of fact that the Petitioner was delayed in its completion through no fault of its own. This delay, ultimately the responsibility of the Department, is attributable primarily to three causes. First, the alteration of the concept of the project whereby Romac and the Petitioner were issued simultaneous Notices to Proceed rather than allowing Romac to complete before the Petitioner began its work, changed the entire character of the project and necessarily increased the time reasonably necessary for completion by the Petitioner. Second, Romac, the Department's separate contractor, through no fault of the Petitioner, failed to complete its part of the project on time, thereby further delaying Petitioner's completion. Third, and perhaps most important, the lack of responsible construction management on the project caused much confusion and delay, none of which was the fault of the Petitioner. This third cause is inextricably intertwined with the first two. With proper scheduling and construction management the first two causes may have been eliminated. For the foregoing reasons the record establishes as a matter of fact that the Petitioner was delayed, and that a reasonable measure of that delay is the time it took Romac to complete its part of the project, 176 days. This delay was due to no fault of the Petitioner and was the ultimate responsibility of the Department, its agents or separate contractors. Except for the Department's actions and those of its independent contractor, Romac, the Petitioner would have come on the job, as designed, with the steel in place and ready for the Petitioner's labor. The Department and the Architect failed to provide adequate construction management of the project and, ultimately, failed to properly schedule the phases of construction. Because of this delay the Petitioner incurred certain additional costs. The Petitioner had to pay an extra job insurance premium of $2,592.00 to renew its job insurance policy for the continuation of the project beyond the original time of the contract. The Petitioner's total field office and home office overhead was $527.64 per day. Home office, or indirect, overhead was allocated for this job at $294.82 per day. Direct job costs, including the salary of the superintendent and project manager, utilities, and various items of basic equipment, averaged $232.82 per day. In September, 1974, approximately one month prior to the completion of the job in October, 1974, the Petitioner removed most of its facilities from the site because the job was essentially complete, except for finish work awaiting completion by separate interior contractors. Therefore, in September and October, 1974, the Petitioner's direct job overhead was reduced considerably. However, indirect, or home office, overhead remained constant. Therefore, because of the delay the Petitioner incurred 145 days of additional direct job overhead which cost $33,758.90 and 176 days of additional indirect job overhead which cost $51,888.32. The Petitioner's anticipated profit margin on this project was 6 percent which is reasonable and when applied to the above costs equals $5,294.35. Because of the above delays the Petitioner incurred increased costs for masonry. It was necessary for the Petitioner to rent additional equipment at a cost of $7,375.00. In addition, the pay scale for bricklayers and mason tenders increased 80 cents per hour respectively during the period from February through June, 1974. When those increased rates are multiplied by the number of payroll hours during the extended period, the Petitioner's increased labor costs for masonry due to the delay is $16,565.00. Sales tax for the materials and payroll taxes and insurance for this same time period total $3,608.00. Thus, the total increased masonry cost because of the delay in the project is $27,548.00. An itemization of the cost of the delay to the Petitioner is a follows: Additional insurance premium Direct overhead $2,592.00 145 days at $232.82/day 33,758.90 Indirect overhead 176 days at $294.82/day 51,888.32 6 percent Profit for above 5,294.35 Increased masonry costs 27,548.00 TOTAL COSTS $121,081.57 Thus, with regard to Petitioner's Claims Nos. 1, 12, 19, and 20 dealing with job progress delay, whereas the hearing examiner in the original "Recommended Order" found no ultimate fault on behalf of the Department, the undersigned finds as set forth above that the Department is responsible for the delay and that the Petitioner thereby incurred the above costs as a result of that delay. In disposing of Petitioner's Claim No. 3, dealing with the installation of certain spandrel angles, the hearing examiner found that "as a result of the Architect's untimely decision, the Contractor was required to fabricate and install additional spandrel angels". Thus, the hearing examiner concluded that the Petitioner was entitled to the total amount of his claim as established by the evidence. He then found that amount to be $5,400.75. However, as pointed out by the Petitioner in his exceptions, the evidence establishes that $5,400.75 includes only the cost of labor and materials. In addition, there was a real cost to the Petitioner of $507.50 for liquid air, auto fasteners, and welding machine costs necessary for the installation of the subject spandrel angles. Further, the $5,400.75 the hearing examiner found should be paid Petitioner with regard to spandrel angles, did not include an amount for overhead and profit. The reasonable amount to be allocated to overhead and profit respectively is percent. Thus, accepting the findings of the hearing examiner, with regard to the liability of the Department for this claim, the correct amount to which the Petitioner is entitled, is as follows: Labor and materials (recommended $5,400.75 to be awarded by the hearing examiner) Liquid air, auto fasteners, and 507.50 welding machine costs 6 percent overhead and 6 p. profit 708.99 TOTAL AMOUNT OWED CONTRACTOR $6,617.24 FOR ADDITIONAL SPANDREL ANGLE WORK Therefore, in addition to the $5,400.75 recommended to be awarded the Petitioner by the hearing examiner, it appears that an additional $1,216.49 is properly due the Petitioner based upon the finding of liability by the hearing examiner in the original "Recommended Order". The hearing examiner recommended that the Petitioner was entitled to recovery on Claims Nos. 2 and 8. The Petitioner took exception to that recommendation to the extent that it did not include an allowance of 6 percent for overhead and 6 percent for profit. While ordinarily it would appear as a matter of fact that those are the proper percentages to be allocated to overhead and profit, on the face of the record it appears that the amounts recommended by the hearing examiner for Claims Nos. 2 and 8 may have been agreed to as the amounts payable on those claims should the Department be liable. It does not appear that evidence exists warranting amendment of the hearing examiner's recommendation with regard to Claims Nos. 2 and 8. With regard to Claim No. 4 in the amount of $1,055.88, the hearing examiner found that the Petitioner failed to meet the basic notice requirements by the contract to entitle the Petitioner to compensation for additional work. Petitioner's Claim No. 4 referred to the necessity of chipping back one-half inch of the brick on the fourth floor, northside, because Romac's slab floor extended too far out, and as a result, the installed brick shelf angle protruded excessively and brickwork could not be aligned with the other floors. It is unchallenged that the work was actually performed by the Petitioner, and that the cost of that work was $1,055.88. The evidence establishes the necessity for the work and the fact that it was extra work not required by the Petitioner's contract nor caused by fault of the Petitioner. The Architect's project representative, Mr. Clayton Hyland, was aware that the work was needed and that it would be extra work for the Petitioner. Mr. Hyland indicated that Romac would be back-charged for the work. The formal notice of additional work required by the contract did not occur; however, it appears that the Architect and thus the Department had actual notice of the intended work, and accepted the necessity for the performance of the extra work. The evidence supports the claimed amount of $1,055.88. Adding 6 percent for overhead and 6 percent for profit, the total amount of the claim is $1,170.27. Claim No. 13 was a claim by the Petitioner arising out of a claim back through the Petitioner from the Holloway Corporation, who was the Petitioner's electrical subcontractor. The claim, which originally totaled $14,832.33, included an amount for the cost of off-site storage of material allegedly incurred because of the delay in the construction of the job, and the cost of extended overhead to Holloway Corporation because of the delay in the job. The hearing examiner found that with regard to that part of the claim was not preserved by the Petitioner's timely submission of it to the Department. A review of the record indicates that there is competent substantial evidence to support the hearing examiner's conclusion with regard to that part of Claim No. 13. The hearing examiner then found, however, that it". . . would appear that the subcontractor [Holloway Corporation] has preserved his right to process a claim for extended overhead and job costs due to alleged delays..." He goes on to find that "...very little additional information is adduced [in the record] upon which a claim for delay costs can be properly and adequately evaluated" and concludes that Petitioner has failed to sustain its claim for damages due to delays. In fact, it appears from the record that Holloway Corporation, the Petitioner's electrical subcontractor, was providing one of the major elements of the Petitioner's contract with the Department. The electrical work required Holloway Corporation to be on-site from the time of the Petitioner's Notice to Proceed until the completion of the Petitioner's part of the project. The electrical work could only proceed at the same rate as the building that was being erected. For example, the electrical contractor could not rough-in conduit in a ceiling if there was not ceiling yet in place. Similarly, the electrical contractor could not install fixtures in partitions if the partitions were not installed. Thus, the electrical phase of the project could only proceed at the same rate as the erection of the building. It has been concluded above as a matter of fact that the Petitioner was delayed for 176 days through no fault of its own in completion of the building. This delay necessarily affected the electrical portion of the Petitioner's contract being performed by the Petitioner's electrical subcontractor, Holloway Corporation. The evidence of record further establishes that the Holloway Corporation has claimed $45.30 per day for the cost of keeping its superintendent on the job during the pendency of the project, including all of the delays. There is no evidence of record to contradict the reasonableness of the foregoing costs. Therefore, it is concluded that as a matter of fact the Petitioner's electrical subcontractor, Holloway Corporation, was damaged by the delay of 176 days referred to above to the extent of $45.30 per day for the cost of a superintendent, which costs would not have occurred had the project not been delayed. That is a total of $7,972.80. The Holloway Corporation was reasonably entitled to 6 percent profit for its work. Therefore it appears that the Petitioner's electrical subcontractor, Holloway Corporation, pursuant to its claim through the Petitioner, incurred $8,451.17 in additional costs including profit because of the above-referenced delay. The Hearing examiner found that the Petitioner had to do the extra work for which it claims compensation in Claim No. 14 because of an error in the drawings by the Architect. The hearing examiner further found that the Petitioner in fact incurred extra labor and material costs. The record of his proceeding supports those findings. However, the hearing examiner then concluded as a matter of fact and law that the Petitioner failed to conform to the proper notice requirements required by the contract to perfect his claim. The amount of the claim, $1,087.00, is established by the evidence and with the addition of 6 percent overhead and 6 percent profit the claim totals $1,217.44. The record establishes that the Petitioner in fact did the work, that the work was necessary to the completion of the project, and that the work was extra work necessitated by an error in the drawings of the Architect and not through the fault of the Petitioner. The Department's Architect had actual knowledge of the extra work which is the subject of Claim No. 14 before, during, and after its performance. There was no indication in the record that the Petitioner offered to do this work for free. The Architect had actual, timely notice of the additional work. With regard to Claim No. 15 the hearing examiner stated unequivocally that the claim was well founded and that the Petitioner was entitled to be compensated in the amount claimed. A review of the record indicates no reason to alter that conclusion. Although he found that the claim was valid and that the "claim amount" should be paid, the hearing examiner recommended that $1,665.08 be paid the Petitioner under the claim rather than the claimed amount of $3,226.44. The claimed amount of $3,226.44, including extra labor and insurance, represents the excess of actual costs over estimated costs for the subject work, since the estimated costs did not include the extra work for which compensation is sought by Claim No. 15. Having searched the original "Recommended Order" and the record to determine the basis for the hearing examiner's recommendation of $1,665.08, and failing to find any such basis, and further noting that the Department in its memorandum to the undersigned Hearing Officer has provided no explanation of the basis for this lesser amount, it is concluded that the amount of $3,226.44 is the correct amount by which the Petitioner should be compensated for Claim No. 15. In disposing of Claim No. 16 the hearing examiner considers it together with Claims Nos. 1, 12, 19, and 20 which deal primarily with the overall question of job progress delay. The hearing examiner deals with that question in a broad manner, seemingly concluding that the matter is so complicated and difficult of solution that it is doubtful"...whether or not claims in respect of delay can be so meticulously reviewed in order to be able to determine where in fact the Contractor [Petitioner] is entitled to monies and where in fact he is not." Whereupon the hearing examiner finds that the Petitioner has not shown his entitlement to additional compensation for Claims Nos. 1, 12, 16, 19, and 20. However, no matter how Claims Nos. 1, 12, 19, and 20 may be disposed of, a review of the record indicates that Claim No. 16 can be dealt with directly. (It should be noted that at times in the record Claim No. 16 is referred to as Claim No. 12). This claim was for the cost involved in reforming a beam across the entrance way in the Rehearsal Building because of the alleged delay in receiving approval by the Architect of the shop drawing for the steel in the beam. The shop drawing for beam steel was submitted to the Architect's office by the Petitioner on June 20, 1973. The shop drawing was returned "approved", dated July 27, 1973. Thus, approval of the shop drawing by the Architect took at least 41 days, plus time for return mail. No correction or modification to the shop drawing was noted. Pending approval of the shop drawing the Petitioner had already formed the beam bottom, the installation of which awaited approval of the shop drawing. It does not appear unreasonable for the Petitioner to have formed this beam bottom in preparation for installation upon approval of the shop drawing, particularly since the shop drawing was approved with no changes or modification. While waiting for approval of the shop drawing the formed beam bottom warped from exposure to the weather and had to be reformed. No evidence was presented that would establish fault on the part of the Petitioner in allowing the beam bottom to warp, or in contributing to the delay of 41 days for approval of the shop drawing. It is found as a matter of fact on the record of this proceeding that 41 days was an unreasonable period of time for the approval of the subject shop drawing. The evidence establishes that the cost for labor and materials to reform the beam bottom was $972.00. Adding 6 percent overhead and 6 percent profit, the total cost to the Petitioner is the amount claimed, $1,088.64. This cost was incurred through no fault of the Petitioner. The Petitioner has taken exception to the hearing examiner's findings and recommendation with regard to Claim No. 18. A review of the record and the rulings of the hearing examiner indicates no reason in the opinion of the undersigned why those findings and recommendations should be disturbed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Petitioner be awarded additional compensation for the subject project as follows: Claims Nos. 1, 12, 19, and 20 $121,081.57 Claim No. 2 317.80 Claim No. 3 6,617.24 Claim No. 4 1,170.27 Claim No. 8 3,018.11 Claim No. 10 2,348.33 Claim No. 11 1,386.00 Claim No. 13 8,451.17 Claim No. 14 1,217.44 Claim No. 15 3,226.44 Claim No. 16 1,088.64 Claim No. 17 2,734.44 Claim No. 18 -0- Claim No. 23 31,500.00 TOTAL $184,157.45 Respectfully submitted and entered this 21st day of July, 1981, in Tallahassee, Florida. CHRIS H. BENTLEY, Director 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 21st day of July, 1981. COPIES FURNISHED: Stephen Turner, Esquire 318 N. Calhoun St. Drawer 591 Tallahassee, Florida 32302 Spiro T. Kypreos, Esquire Department of General Services Larson Building (Room 457) Tallahassee, Florida 32303
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues presented in this case concern the question of whether Respondent has abandoned his position as a Highway Maintenance Technician I employed by Petitioner.
Findings Of Fact Prior to January 23, 1990 Respondent had been employed by Petitioner as a Highway Maintenance Technician I. He was a permanent employee. He did not report to work on that date or upon subsequent dates for which he was obligated to report, those dates being January 24 through 26, 1990 and January 29, 1990. The reason he did not report was based upon his incarceration for indecent exposure. Jessie Calvin Rhoden, Highway Maintenance Supervisor II and the immediate supervisor to Respondent, testified that the members of his crew, to include Respondent, were responsible for calling no later than one hour before their time to report for work if they intended to be absent. This is in keeping with the policy of the Petitioner as announced in an excerpt page from that policy found as Petitioner's exhibit 4. The employee handbook containing the policy statement was received by Respondent prior to the days upon which he was absent. In particular he had received the employee handbook on April 20, 1983 as evidenced by his signature on a copy of the acknowledgment of receipt of the employee handbook which is Petitioner's exhibit 5 admitted into evidence. Rhoden did not approve leave prior to January 23, 1990 that pertained to the days upon which the Respondent was absent, nor did he approve of that leave at any time during the absence or after the absence. No other official with Petitioner gave approval for Respondent to be absent. Respondent's sister contacted Rhoden at 7:45 a.m. on January 23, 1990 and asked if the Respondent had reported to work. Rhoden told the sister that if the Respondent contacted her that the Respondent should call personally to request leave time. On the evening of January 24, 1990 the Respondent's father, Shirley Odell Richardson spoke with Rhoden and told Rhoden that whatever the problems were that the Respondent was experiencing, that Respondent would be back to work on Thursday, January 25, 1990. Previous to this occasion when the Respondent wished to have leave he would ask for that leave a week or two in advance of the time that he expected to be absent from his job, unless some emergency arose and in those instances Respondent would call and request leave at the time of the emergency. Alex Hamilton Slaughter is a Highway Maintenance Supervisor III, who is in line of authority the supervisor of Rhoden. Ordinarily it is his responsibility to approve leave for Respondent. He also had a conversation with Respondent's father, as he recalls on January 23, 1990 at which time the father stated that the Respondent had gotten into some form of trouble. The father said that the problem would probably clear up quickly and Respondent would be back at his job on January 25, 1990. In this conversation Respondent's father made known the fact that the Respondent was in jail. A further conversation was held between Slaughter and the father on Thursday or Friday afternoon of the first week of Respondent's absence at which time the father said that the problem had not cleared up, but he expected the son to return to work momentarily. Larry Collins is the Assistant Maintenance Engineer who is the supervisor of Slaughter. He oversees all operations of Petitioner's Ellis Road Facility in Jacksonville, Florida where Respondent was assigned. He identified that at the time the Respondent was absent it was not the policy of the Petitioner to approve leave for individuals who had been incarcerated. He gave two specific examples of that policy that had transpired prior to the circumstance of the Respondent. They are outlined in Petitioner's exhibits 1 and 2 related to Gary D. Smith and Gregory E. McCray respectively. Those individuals were incarcerated and were relieved of their employment based upon the fact that they missed work due to incarceration and were considered to have abandoned their jobs. This policy of the agency is an acceptable arrangement in the circumstances pertaining to Respondent. That is to say, Petitioner is not obligated to approve leave for persons who have been incarcerated. This is particularly true in the instance where Respondent has accepted the reason for his incarceration as being legitimate. Petitioner through Mr. Collins identified that the agency considers that incarceration is not grounds for mitigation of the circumstance and an excuse for the absence. He draws the contrast between that situation and one in which a person has been hospitalized wherein the employee would probably have leave approved. Petitioner's exhibit 3 is a copy of the time sheet of the Respondent during the relevant time period showing his absence without authorized leave. In his remarks at hearing Respondent identified the fact that he had been arrested on January 23, 1990. He stated that the authorities would not allow him to contact his parents and tell them that he was being arrested. Eventually he was allowed to make contact with his family which led to his father's conversations with Respondent's supervisors to explain the absence. The father had talked to the supervisors about allowing Respondent to take leave during the incarceration, but that request was not favored. In his testimony the father identified the fact that he had contacted the employer to make known and have them understand the reason for his son's absence. As the father established, his son was in jail for one and a half weeks because he could not make bail. He then served three weeks house arrest at which time he could have returned to his job; however, this was beyond the time that would have been acceptable for the Respondent to take up his duties again as viewed by the Petitioner. On January 30, 1990 a letter was sent to the Respondent identifying the fact that the Petitioner deemed him to have abandoned his job position. A copy of that letter may be found as Petitioner's exhibit 6. It refers to Rule 22A-7.010(2)(a), Florida Administrative Code, as grounds for the action. It identifies the fact that the Respondent had missed five days and forty hours of work through unauthorized leave. Respondent sought a hearing from the Secretary, State of Florida, Department of Administration and the case was referred to the Division of Administrative Hearings for disposition. This led to the final hearing that has been described.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing on September 28, 1987 and October 6, 1987, the following relevant facts are found: Respondent, White Construction Company, Inc. (WHITE) is a contractor engaged in the highway construction industry and holds a current Certificate of Qualification with the Petitioner, Florida Department of Transportation (FDOT). The Certificate of Qualification entitles WHITE to bid on construction contracts to be awarded by FDOT. WHITE has been in the road construction business since 1950 and has performed several hundred road construction contracts of FDOT amounting to some $400,000,000.00. On May 28, 1986, FDOT received bids on State Project Nos. 61080-3522 and 61080-3523 (Project). FDOT subsequently awarded the contract to WHITE for performance of the work. The Project consisted of improvement to drainage structures, resurfacing of approximately 1.5 miles of roadway which included milling the existing asphalt and replacing it with a new structural course, and placing incidental handrail and roadway markings. The contract specifications called for the completion of the Project in ninety-five (95) calendar days. Calendars days are calculated by multiplying the number of workdays required to complete the work by a coefficient of 1.825. The coefficient of 1.825 is derived by dividing the number of days in a normal year (365) by the number of actual working days in a year (200). WHITE was awarded the contract on the Project on July 11, 1986 and was required to return the executed contract within twenty (20) days or be penalized one (1) day for each calendar day WHITE was late in returning the executed contract. WHITE returned the executed contract on August 5, 1986 or twenty-five (25) days after being awarded the contract. As a result of returning the executed contract late, the number of days to complete the Project was reduced from ninety-five (95) to ninety (90) days. Certain utilities belonging to the City of Chipley were in conflict with the drainage work to be performed by WHITE under the contract, but were to be removed prior to WHITE starting work on the Project. As required, a Pre-construction Conference was held on August 7, 1986 concerning the Project, with representatives from FDOT, WHITE, WHITE'S subcontractor and Southern Bell present. The City of Chipley did not attend the Pre-construction Conference. One of the items discussed was the relocation of the City of Chipley's utilities that were in conflict with the drainage work to be performed by WHITE. At the time of the conference, it was not known if the utilities in conflict with the project had been relocated by the City of Chipley. On August 26, 1986, WHITE'S Work Progress Schedule Chart was approved. The chart indicated that certain types of work would be performed concurrently, such as drainage structure work and subgrade base and surface work (milling). At the time the chart was submitted, WHITE understood that the utility conflicts would be relocated prior to it commencing work, and had no knowledge of other utility conflicts discovered at a later time. On November 3, 1986, WHITE moved onto the Project site and commenced work. The ninety (90) days for completion of the Project began to run on that date. On November 3, 1986 when WHITE moved onto the Project site, the known utility conflicts had not be relocated. The first day of contract time WHITE began clearing and grubbing, and on the second through the fifth day of contract time (November 4 - 7, 1986) WHITE performed surveying work in preparation for the next controlling item of work - drainage structures. On the sixth day of contract time (November 8, 1986) the known utility conflicts had not been relocated by the City of Chipley as was contemplated by the contract. Except in a piecemeal fashion, which would not be economical, WHITE was unable to proceed to the next controlling item of work after the drainage structures, the milling of the asphalt, until the utility conflicts were relocated and the cross drains installed. On November 14, 1986, the 12th day of contract time, WHITE's subcontractor commenced work on the Project and from this date until January 12, 1987 worked twenty-seven (27) days on the Project. On November 20, 1986, the 18th day of contract time, WHITE began unloading pipe, but was able to work only two (2) hours due to rain. On November 21, 1986, the 19th day of contract time, WHITE completed unloading the pipe and began to lay pipe, but the discovery of an unknown utility conflict delayed laying pipe until December 16, 1986, the 37th day of contract time. On November 22, 1986, the 20th day of contract time, WHITE moved off the Project, and did not return until December 16, 1986, the 37th day of contract time. WHITE worked the 16th and 17th of December, 1986, and on December 18, 1986, the 39th day of contract time, another utility conflict was discovered. WHITE performed no further work on the Project until January 12, 1987, when the utility conflict was resolved. WHITE requested and was granted vacation time during November 27 through December 3, 1986 and December 24 through 28, 1986, and contract time was stopped for twelve (12) days. WHITE, through no fault of its own, was unable to work on a controlling item of work for thirty-six (36) contract days which is equal to fifty (50) calendar days. Converting contract days to calendar days is accomplished by multiplying the contract days by the coefficient of 1.4. Using this coefficient takes into consideration the weekends (365-102 = 261. 365 divided by 261 = 1.4) The subcontracted portion of the Project was eleven per cent (11 percent). Converting the twenty-seven (27) days worked by the subcontractor during this period to days chargeable to WHITE is accomplished by multiplying 11 percent times 27 days which equals 2.97 or 3.0 days. By letter dated January 29, 1987, WHITE requested an extension of time of eighty-one (81) days, and as a basis for the extension alleged delays caused by rain or conditions related to rain, utility conflicts and conditions due to natural springs adjacent to the Project site. The extension request was reviewed first by the Assistant Resident Engineer on the Project who recommended to the Resident Engineer the granting of a thirty-one (31) day extension which was calculated by granting thirty-five (35) days for utility delays and subtracting four (4) days for time attributable to work done by the subcontractor during this period, but denying any time for delay caused by rain or conditions related to rain or conditions related to the natural springs adjacent to the Project site. After reviewing the recommendation of the Assistant Resident Engineer, the Resident Engineer recommended to the District Construction Engineer that only a twenty (20) day extension be granted based on twenty-nine (29) days being affected and subtracting nine (9) days for work accomplished by the sub and prime contractor during this period. The District Construction Engineer agreed with the State Construction Engineer, and recommended to the State Construction Engineer that a twenty-eight (28) day extension be granted. Calculated by multiplying the twenty (20) day extension recommended by the Resident Engineer times the coefficient of 1.4 to convert to calendar days of contract time. The State Construction Engineer concluded that forty (40) days of contract time had been affected, and without further explanation granted forty (40) calendar days. In none of the calculations did the engineers take into account the delays caused by FDOT's failure to require the City of Chipley to timely relocate the known utility conflicts prior to WHITE commencing work on the Project, thereby preventing WHITE from proceeding in an orderly sequence with the work as contemplated in its Work Progress Schedule Chart without any excuse for delay until the unknown utility conflicts were discovered on November 21, 1986. Likewise, without the unknown utility conflicts, WHITE could have worked the job in an orderly sequence (concurrently working on drainage structures and the milling aspect). However, not knowing where the next utility conflict might arise, WHITE was precluded from milling asphalt while working on drainage structures without subjecting itself to additional work and costs. On this basis, WHITE should have been granted a forty-seven (47) day extension (50 days for utility delays minus 3 days for work accomplished by subcontractor). This extension is arrived at by allowing WHITE thirty-six (36) contract days during the period of November 8, 1986 through January 12, 1987 while WHITE was unable to perform work on a controlling item of work under the contract, and converting those days to calendar days (36 X 1.4 = 50) and subtracting the three (3) days of work performed by the subcontractor during this period and chargeable to WHITE (50 minus 3 = 47). By letter dated March 19, 1987, WHITE submitted a second time extension request for fifty (50) days. The request covered a period of time from January 12, 1987, through March 8, 1987, a period of eight (8) weeks. The reasons for the request were: delays due to rain and corresponding wet conditions; delays due to utility conflicts; and delays due to conditions caused by natural springs adjacent to Project site. FDOT's personnel performed its customary analysis of WHITE's second- time extension request, and granted a time extension of eleven (11) calendar days. FDOT's review revealed that WHITE had been delayed nine (9) days due to weather, two (2) days due to utility conflicts, and no delays caused by the natural springs adjacent to Project site. A review of the daily diaries reveal that work on the Project by WHITE was affected twenty-two (22) days by rain or conditions caused by rain and was affected five (5) days by utility conflicts. There were nine (9) days when rain stopped work on the Project, (1/15, 16, 21/87; 2/2, 5, 24, 25, 26, 27/87) but since approximately one (1) per week is accounted for in the coefficient used to calculate the calendar days of the contract, only one (1) day should be allowed. There were thirteen (13) days on which work on the Project was affected by conditions caused by rain. WHITE was dewatering due to excessive rainfall or natural springs adjacent to the Project site as follows: 1/19/87 - 1 day; 1/20/87 - 1/2 day; 1/22/87 - 1 day; 1/23/87 - 1/2 day; 1/26/87 - 3 hours; 1/27/87 - 5 hours; 1/28, 29, 30/87 - 3 hours each day; 2/18/87 - 2 hours; 2/23/87 - 0.7 of a day; and 3/3/87 - 1 day. On February 6, 1987, WHITE lost all day because it was too wet to work. The above calculates into eight and one- half (8 1/2) days of contract time. WHITE's work on the Project was affected on five (5) days due to utility conflicts. They were as follows: 1/27/87 - 2 hours; 2/13/87 - 2 hours; 2/14/87 - 2 hours; 3/3/87 - 3 hours and; 3/4/87 - 6 hours. This calculates into two (2) contract days. It is apparent from the calculations of FDOT that WHITE was not given credit for certain days when the controlling item of work was delayed due to rain or conditions due to rain. The correct amount of contract time should have been eleven and one-half (11 1/2) days which, when converted to calendar days, equals sixteen (16) days. During the course of the work on the Project, a "rutting" problem was encountered in a section of the road involved in the Project whereby the road was gradually sinking. The "rutting" was apparently caused from improper backfilling of a trench which had been excavated earlier by a contractor performing work for the City of Chipley. The "rutting" was not the result of any work performed by WHITE on the Project. Negotiations began between FDOT and WHITE regarding WHITE correcting the "rutting" problem on March 6, 1987, and continued until April 13, 1987, at which time FDOT and WHITE entered into a Supplemental Agreement whereby WHITE agreed to correct the "rutting" problem for a stated amount, and FDOT granted WHITE thirty-five (35) additional calendar contract days. It was also understood that WHITE would be allowed time for material acquisition. On April 23, 1987, WHITE was advised by FDOT that no additional contract time after April 27, 1987 would be considered. On April 27, 1987, WHITE began work on the "rutting" problem, and completed the work on the "rutting" problem on May 13, 1987. On May 18, 1987, FDOT issued WHITE a Preliminary Notice of Delinquency notifying WHITE that the progress of work on the Project was considered by FDOT to be unsatisfactory. On June 3, 1987, in response to FDOT's Preliminary Notice, WHITE submitted a written time extension request for the period of March 8, 1987 through May 24, 1987. The time requested was one hundred and twenty-five (125) days, and the reasons were: delays caused by rain and corresponding set conditions, settlement of "rutting" problems, and; a request for reconsideration of the days denied in the first two time extension requests. FDOT granted nineteen (19) calendar days of contract time for the negotiations of the "rutting" problem, and denied the balance of time requested. The nineteen (19) days were derived by calculating the number of days involved in negotiation, acquiring material and performing the work, and subtracting the thirty-five (35) days granted under the Supplemental Agreement. During the period of time from March 20, 1987 through April 27, 1987, thirty-eight (38) calendar days of contract time, WHITE was precluded from working on any controlling item of work on the Project due to negotiations on the "rutting" problem and acquisition of materials to correct the "rutting" problem, and these days were not considered by FDOT in making its decision to grant the work in correcting the "rutting" problem under the Supplemental Agreement. Therefore, WHITE is entitled to the full thirty-eight (38) calendar days of contract or an additional nineteen (19) calendar days of contract time than was granted by FDOT. Because problems arose in securing aluminum handrails that WHITE had no control over, FDOT suspended time on the Project from July 4, 1987 through August 23, 1987. FDOT issued to WHITE a Final Notice of Delinquency by telegram on August 7, 1987, confirmed by a certified letter of the same date, informing WHITE that the notice would become final and WHITE's qualification to bid on FDOT projects would be suspended unless WHITE requested a hearing within ten (10) days. Pursuant to this notice, WHITE requested an administrative hearing. On October 19, 1987, FDOT granted WHITE an additional five (5) days of contract time for completion of the Project by Supplemental Agreement. Based on FDOT's calculations, the contract time expired on May 28, 1987, the 195th day of contract time (the original 95 days, minus 5 days penalty, plus 40, 11 and 19 days of extension, plus 35 days under Supplemental Agreement). Based on the findings herein, the contract time expired on July 3, 1987, the 231st day of contract time (the original 95 days, minus 5 days penalty, plus 47, 16 and 38 days of extensions, plus 35 and 5 days under the Supplemental Agreements). On August 25, 1987, the 233rd day of contract time, the subcontractor began to erect the handrails and completed erecting the handrail on August 27, 1987, the 235th day of contract time. The Project was conditionally accepted by FDOT on August 27, 1987, the 235th day of contract time, and time stopped running on the contract. WHITE was four (4) days delinquent in completing the contract which was the result of the penalty imposed for failure to timely return the executed contract. FDOT's inability to resolve the known and unknown utility conflicts and the rutting problem timely resulted in WHITE not being able to proceed with the work on the Project in an orderly sequence as anticipated by the Work Progress Schedule Chart. This required WHITE to move on and off the Project to work on other projects and resulted in the inefficient use of the allowable contract time, and should be considered when determining delinquency. There was insufficient evidence to show that WHITE did not have sufficient equipment, personnel, or finances to timely complete the job.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Department of Transportation enter a Final Order finding the Petitioner, White Construction Company, Inc., not delinquent in its prosecution of the work on Job Nos. 61080-3522 and 61080-3523 and rescind its final notice of delinquency issued on August 7, 1987. RESPECTFULLY SUBMITTED and ENTERED this 21st day of December, 1987 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3811 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 1. 3. The first sentence is adopted in Finding of Fact 3. The balance of paragraph 3, although supported by creditable testimony in the record is neither material nor relevant since the project could have been completed timely without the utility delays, and adjustment of contract time has allowed for these delays. 4. The first and third sentences of paragraph 4 are adopted in Finding of Fact 4. The balance of paragraph 4 is rejected as not being material or relevant. 5. Adopted in Finding of Fact 9. 6.-9. Adopted in Findings of Fact 9-14 and 16 but clarified to make statements of fact rather than statements of witnesses' testimony as was sometime the case in Petitioner's findings set forth in paragraphs 6-9. 10.-11. Adopted in Findings of Fact 28, 29, 31 and 32 but clarified to make statements of fact rather than statements of witnesses' testimony as was sometimes the case in Petitioner's findings set forth in paragraphs 10 and 11, and also rejecting certain portions as not being material or relevant. Rejected as not being relevant or material. Rejected as not being relevant or material, especially since it was WHITE's responsibility to obtain the handrail timely in the first place. Adopted in Finding of Fact 33 but clarified, rejecting that portion concerning the ten days between June 26- July 3 and August 24 and 25, 1987 as being no fault of WHITE since it was WHITE's responsibility in the first place. The first sentence is adopted in Finding of Fact 31. The balance of paragraph 15 is rejected as not supported by substantial competent evidence in the record. Adopted in Findings of Fact 41 and 42. Specific Rulings on Proposed Findings of Fact Submit by Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4 as clarified. The first three sentences are adopted in Findings of Fact 7 and 8. The balance of paragraph 5 is rejected as not being material or relevant. Adopted in Findings of Fact 9-12. Adopted in Findings of Fact 13 and 14 but clarified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 11 and 13 but clarified. Adopted in Findings of Fact 11, 14 and 15 but clarified. Adopted in Finding of Fact 14. Adopted in Finding of Fact 18 but clarified. 13.-14. Adopted in Findings of Fact 19-23 but clarified. Adopted in Finding of Fact 24 but clarified. Adopted in Findings of Fact 25-27 but clarified. Adopted in Finding of Fact 28 but clarified. Adopted in Finding of Fact 29 but clarified. Adopted in Findings of Fact 29 and 32 but clarified. Rejected as not being material or relevant. Adopted in Finding of Fact 36 but clarified. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 31 but clarified. Adopted in Finding of Fact 34. Adopted in Finding of Fact 31. Adopted in Finding of Fact 39. Adopted in Finding of Fact 34. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, Mail Station-58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
Findings Of Fact On December 6, 7 and 8, 1988, petitioner Harold E. Solano was absent from his job at the Department of Transportation without leave.
Recommendation It is, accordingly, RECOMMENDED: That the Department of Administration enter a final order deeming petitioner to have abandoned his career service position with respondent. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 18th day of July, 1989. COPIES FURNISHED: Harold E. Solano Route 1, Box 5 Elkton, Florida 32033 Charles G. Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, Florida 32399-0458 Andrew J. McMullian, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
