The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Respondents are certified general contractors and were so licensed at all times pertinent to these proceedings. Respondents Herbert S. McNairy, George A. Hunt, Jr., and James R. Brown, Jr., were qualifiers for George Hunt, Inc. at all times pertinent to the proceedings. Respondents Larry A. Thompson and Bill H. Hunt were qualifiers for Hunt Brothers Construction, Inc. at all times pertinent to the proceedings. On or about March 17, 1979, George Hunt, Inc. entered into a contract with Don Olson Firestone, Inc. for the construction of a warehouse building at 2009 Sunnydale Blvd., Clearwater, Florida. On or about April 3, 1979, Hunt Brothers Construction, Inc. applied for and received a building permit for the construction of the building from the Pinellas County Building Department. The permit was signed by Respondent, Bill Hunt, qualifier for Hunt Brothers Construction, Inc. Respondent, Herbert S. McNairy participated in discussions with the architect and was a supervisor of construction. Immediately prior to the permittee's signature line, the permit document states: "It is understood that any deviation from the original document will render this permit issued under this application null and void, unless approved by the building director." Elsewhere on the document, it is stated that "permits and applications are true representations of construction to be accomplished under this permit. It is understood that any deviation from the original document will render this permit issued under this application null and void unless the changes are approved by the building department." The plans for the warehouse were prepared by Frank Norris, registered architect. The plans called for concrete walls at the front and rear of the structure (north and south ends, respectively) and a concrete wall in the center of the structure, dividing it into two rooms. A structural steel roofing system was specified consisting of trusses mounted on columns and connected by joists welded to the top chords of the trusses. These joists were to be welded to the trusses and welded to steel plates located in the concrete walls. The plans did not contain a drawing or specifications for the trusses. The plans called for end-bracing between the trusses and specified the steel to be used to accomplish this bracing. The joists specified were 22H7 joists--22 inches in depth, 50,000 pounds per square inch tensile strength. Cross-bridging was specified between the joists. Pursuant to a verbal contract, State Steel Erectors, Inc. was hired to erect the structural steel for the roof, i.e., mount the trusses on the columns and connect (weld) the joists to the trusses and to the steel plates in the walls. The steel was fabricated by George Hunt, Inc. in lieu of a steel fabricator subcontractor. The Southern Standard Building Code (1973 Edition) had been adopted as the Pinellas County Building Code at the time of this construction. Inspectors for the building department inspected the construction as follows: INSPECTION DATE Footing & Columns April 6-10-12, 1979 Pilaster April 12, 1979 Rough Plumbing May 8, 18, 1979 Lintel May 10, 1979 Slab May 30, 1979 The roofing system would have been inspected during the framing inspection, after completion of all framing in the building. Inspections are requested by the contractor and there had been no request for a framing inspection of this building. Due to additional framing to be completed in the interior of the building, construction had not progressed to a point where a framing inspection was called for. On or about June 4, 1979, while the deck subcontractor, Decks, Inc., was applying a gypsum deck on the top of the roofing structure on the north end of the building, the structure on that end collapsed, killing one workman and injuring several others. The scene of the accident was visited by Frank Morris; Tom Jones, President of State Steel Erectors; Robert Hostetler, Chief Building Official for Pinellas County; and O. E. Olsen, an engineer hired by the insurance carrier for State Steel Erectors, Inc. Inspection of the scene following the building collapse and subsequent investigation revealed the following: (a) The joists on the north end of the building were 20 J7 joists--having a depth of 20 inches and a tensile strength of 36,000 pounds per square inch. (b) Straight bridging was installed between the joists. (c) None of the trusses were end-braced. (d) Some of the joists in the north end of the building were not welded to the trusses or the walls. (e) Joists of varying depths were installed in the south end of the building. (f) Some joists in the south end of the building had been spliced. TRUSSES: The architect's plans called for bottom-bearing trusses resting on steel columns with vertical x-bracing between the ends of all the trusses. The roof failure occurred as a result of lateral movement of the point where the trusses were welded to the columns. That "point" amounted to a weak joint which buckled on both of the trusses in the north section of the building, causing the collapse. The vertical bracing which was omitted from the structure was the only feature which would have kept the trusses plumb with the columns, and the roof failure would not have occurred if the trusses had been end-braced as required. Without drawing, a contractor or subcontractor would not have known that bracing of the trusses was required. However, it was not possible to safely build the warehouse without bracing of the trusses as was required by the plans. In the south section of the building, where roofing work had not begun and where truss-bracing had also been omitted, the trusses showed lateral deviation off of the columns, indicating the beginning of failure. The failure to brace any of the 16 truss ends as called for in the plans was not an inadvertent deviation from the plans but was an omission of a principal member of the steel structure. JOISTS: The plans called for 33 joists in the north part of the warehouse and 44 in the south. The joists were to be size 22H7. The specific size was called for so that the joists could carry the design load. The design load is the load of the structure and the applied live load called for by Steel Joist Institute specifications which are adopted in the Southern Standard Building Code. The first number designation is the depth of the joist. The letter designates strength. H means steel which yields 50,000 pounds per square inch yield point. J strength yields 36,000 pounds per square inch yield point. The last number refers to a Steel Joist Institute load table. J strength is no longer made although it was commonly used at the time the joists used in the warehouse were built. In the north part of the building, two joists measured 20 inches rather than 22 inches as called for in the plans. In the south, joists ranged from 14 to 20 inches in depth. The strength of joists is roughly proportionate to their depth. Mr. Olsen directed that pieces of two 20 inch joists from the collapsed portion of the building be cut and sent to Law Engineering Testing in Tampa, which sent the samples to their Atlanta office for steel tensile testing to determine whether they were H series, as called for, or J series. The tests showed that the steel was of the J series rather than that of the H series required in the plan. Because one cannot visually observe whether unmarked steel is H or J series, the usual practice is to assume used, unmarked steel is of the J series, rather than to attempt to test it. In this case, that assumption would have been that two 20J7 joists were used in the north portion of the warehouse and that, in the south, 14 to 20J7 joists were used, all instead of 22H7 joists as specified in the plans. Some joists in the southern part of the building were spliced. Splicing is normally accomplished only under shop conditions; otherwise, the welders and the materials used are generally not adequate. Inadequate procedures were evident in the warehouse joist splicing where the welding had burned holes through chord members. If joists were to be spliced, plans would be required to show the splices. These plans did not call for spliced joists. Additionally, if joists are to be spliced, the Southern Standard Building Code requires that they be butt-welded, which allows the joists to have the strength of a continuous member. Joists in this project were lapsed-spliced which made it impossible to develop the full strength required of the spliced joists. The facts that none of the joists used in the warehouse were marked as to weight, that they were used steel and thus more likely to be J series and that they were poorly, incorrectly spliced and of varying, incorrect depths, establish that deviation from the specifications was substantial and material. HORIZONTAL BRACING: The plans called for x-bridging in all the steel joists but horizontal bridging was used on the structure. However, the Steel Joist Institute accepts either x-bridging or horizontal bridging. The Pinellas County Building Code requires that the contractor notify the building department prior to changing the design of the building from the plans and specifications in the building department's file. In this case, the Pinellas County Building Department never approved any deviations from the plans and specifications prior to the collapse on June 4, 1979.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter its Final Order revoking the contractor's licenses of Respondents Herbert S. McNairy and Bill H. Hunt, and that the Administrative Complaints as to Respondents Larry A. Thompson, George A. Hunt, Jr. and James R. Brown, Jr. be DISMISSED. DONE and ENTERED this 2nd day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 2nd day of November, 1982. COPIES FURNISHED: Jane E. Heerema, Esquire Stephanie Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. Michael Huey, Esquire Mary Lou Rajchel, Esquire Post Office Box 1794 Tallahassee, Florida 32302 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. DPR Case No. 0010508 DOAH Case No. 82-1041 LARRY A THOMPSON, CG CA000105 HUNT BROTHERS CONSTRUCTION, INC. 805 Cardinal Avenue Palm Harbour, Florida 33563 LAT CONSTRUCTION, INC. CG C000105 Post Office Box 1027 460 Pinehill Road Port Richey, Florida 33568 Respondent. /
Findings Of Fact Harold B. Spears was 68 years of age at the time his employment with Ewell Industries was terminated. Ewell Industries, Inc. (Ewell) operates concrete block manufacturing facilities located in Largo and DeFuniak Springs, Florida (DeFuniak). Spears was an employee of Pinellas Industries when the Largo facility was acquired by Ewell in 1982 and became an employee of Ewell at that time as manager of the block plant at Largo. In 1984 Spears was involved in an automobile accident which damaged the alignment of his muscles and bones, causing swelling and severe pain throughout his body. At times the swelling and pain became severe and Spears wanted to retire. Between 1984 and 1987 Spears frequently announced his intention to retire. On at least two occasions, Ewell hired people to be trained to assume Spears' job, and after they had been trained Spears withdrew his notice of an intent to retire. Finally, in December 1986, immediately prior to his scheduled retirement in January 1987, Spears condition was again improving and he wanted to reconsider retiring. John McGregor (McGregor), vice president of operations, told Spears that this time he should go through with his retirement. Spears retired from Ewell in January 1987. After Spears' retirement McGregor recommended him for a position at C.E. Parrish where Spears later worked part-time to supplement his social security income. During the early fall of 1987 when Ewell was in the process of purchasing Sikes Concrete Products the owner of Sikes called Ewell's president, William McCue, to inform him that Sikes' plant manager had quit and to ask if McCue had anyone he could send to run the plant. McCue advised Sikes he did not have anyone available but suggested Spears might be interested in part-time work. In October 1987, McGregor discussed with Spears the possible position at Sikes Concrete for a six to eight month period and told him of the potential purchase of Sikes by Ewell. Sikes negotiated a contract with Spears in which Spears was paid annualized salary of $42,000 to help rehabilitate the Sikes block plant at DeFuniak and to train a manager for the plant. In addition, Sikes agreed to pay for lawn and pool services on Spears' home in Seminole, for rental of a lot for Spears trailer at DeFuniak Springs and a mileage allowance for Spears to make a monthly return visit to Seminole to check on his permanent home. When Spears started work at the DeFuniak plant, Marty Carpenter was designated the acting manager of the plant and the individual Spears was intended to train. Spears clearly recognized his position as a consultant at the Sikes plant at DeFuniak. In November 1987, Ewell consummated the purchase of the Sikes plant at DeFuniak. On November 10, 1987, all of the employees at the DeFuniak plant were assembled and told of the transfer of ownership. The former Sikes employees were told that they would all continue in their present position and at the same pay they received from Sikes until subsequent changes may be deemed necessary. Spears received from Ewell the same pay and special benefits he received from Sikes. Because of Spears' former association with Ewell, McCue told Pamela Wells, Ewell's administrative manager, to allow Spears to participate in the company group insurance plan and to withhold income and social security taxes for Spears. To accomplish this, Ms. Wells had Spears sign the same form the permanent employees used to transfer from Sikes to Ewell. At this time Spears and Ewell management both understood that Spears continued to operate as a consultant to train Carpenter as plant manager. Subsequent to the takeover it became apparent that Carpenter would not work out as plant manager. Spears was scheduled to be terminated and leave around March 15, 1988, and when it became necessary to replace Carpenter, Spears was requested to stay on an additional month to help the new plant manager, Dennis Duncan, until he became familiar with the plant. During the second week in April, Lewis, the operations manager, discussed with Duncan, Spears' April 15 departure date. Duncan wanted to keep Spears on longer to help with the problems. On April 18, 1988, Lewis reported to Pitts, the general manager, Sikes Division of Ewell, that Spears was still on the job. Pitts then called Spears and told him that his (Spears) work was finished at the DeFuniak plant and to go home. Spears had learned from Duncan that Duncan was interviewing for another job on April 27, 1988 and might be leaving Ewell. Spears didn't think Pitts had the authority to fire him and he called McGregor to tell him Duncan was leaving. McGregor was out-of-town and Spears talked to McCue who told Spears he would have McGregor call. A few days later McGregor spoke with Spears and he also told Spears that Spears was no longer needed and his work at DeFuniak was finished. Several times during the six to eight months Spears worked at DeFuniak he complained about the weather, spoke of his wife's problems in the colder climate, and expressed a desire to return to Seminole. Prior to the hiring of Duncan as plant manager, no one in Ewell management was aware that Spears was, or might be, interested in the job as plant manager. Concrete block plant managers' compensation generally runs between $25,000 and $35,000 per year. When Spears retired as plant manager at the Largo plant, his annual compensation was approximately $35,000. Spears never told McCue or anyone else in Ewell management that he was interested in the DeFuniak plant manager's job if Duncan left. Spears remained in the DeFuniak area until May 7, at which time the company-paid rent on his trailer lot ran out. In early May, Duncan notified McGregor that he was resigning as plant manager. McCue, McGregor and Pitts discussed Duncan's replacement and the decision was made to promote Ron Zablow who was working at the Largo plant and who had acquired most of his knowledge about block plants from Spears. Zablow was promoted to plant manager at a salary of between $24,000 and $26,000 per year. Neither McCue, McGregor nor Pitts considered hiring Spears for the plant manager position at DeFuniak nor would they have hired him had they been aware he was interested in the job after Duncan left. There had already been two plant managers at DeFuniak in the last six months, Spears' on again-- off again position prior to his retirement in 1987 detracted from his attractiveness, and no one, including Spears, thought he would be interested in the plant manager's job at a salary less than he had received as a consultant, which was approximately twice the salary paid to Zablow. Ewell Industries has over 400 employees. Of those 400, .25% (one employee) is over 70, 4.3% are over 60, 8.3% are over 50, and 43.4% are over 40 years of age. During the calendar year 1988 the percentage of terminations in the foregoing categories with respect to the overall work force was: 2.1% for employees over 60, 10.9% for employee over 50, and 25.5% for employees over 40.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 12, 1989, at Tampa, Florida.
Findings Of Fact Petitioner was employed as a journeyman sheet metal worker at the Florida Power and Light Crystal River project in May, 1982. At the time of his employment, the local union could not provide the sheet metal workers required by Respondent and Petitioner, with others, were hired as "travelers" as opposed to locals. Petitioner was qualified for the job held. In August, 1982, Petitioner was injured on the job and was placed on worker's compensation and returned to Alabama until he recovered. While Petitioner was on worker's compensation, the project on which he was working neared completion and it became necessary to reduce the number of workers employed thereon. Pursuant to an unwritten agreement between the union and Anco, "travelers" are the first to go when the work force is to be reduced. Thereafter, pursuant to the contract (Exhibit 1), the employer can lay off as he deems necessary to keep the best qualified people without regard to seniority. In accordance with this unwritten policy most of the "travelers" quit when the reduction of work made their jobs redundant. Some of those leaving were from Petitioner's Alabama union and were asked to tell Petitioner not to return to work unless called. None of these employees so advised Petitioner. The local union provides all applicants for jobs at Anco. If available these always comprise members of the local union. If the trades needed are unavailable, the union notifies sister unions located elsewhere and members of those unions may apply for the job openings. These are "travelers" and are expected to leave the job to make room for locals anytime the latter become "idle" (out of work) Petitioner returned to the job site September 26, 1982. At that time no "travelers" were employed as sheet metal workers. To help compensate Petitioner for his expenses in returning to the job site from Alabama, petitioner was put back to work for two days before he was discharged on September 23, 1982.
The Issue The issues framed by the Stipulated Issues, Facts and Exhibits are whether the license of David L. Norris as a certified general contractor should be disciplined for violation of: Section 489.129(1)(e), Florida Statutes (1983), by aiding an unlicensed person to evade the requirements of Chapter 489; Section 489.129(1)(f), Florida Statutes (1983), by knowingly conspiring with an unlicensed person to use Norris' certificate with the intent to evade the requirements of Chapter 489; Section 489.129(1)(j), Florida Statutes (1983), through the violation of Section 489.119, Florida Statutes (1983), by failing to qualify a firm through which Respondent was acting; Section 489.129(1)(g), Florida Statutes (1983), by acting in a name not on his license. At the final hearing, the Department amended the Administrative Complaint to dismiss the violations of Sections 489.129(1)(k) (abandoning a contracting job) and (m) (gross negligence or malpractice in contracting). The Department presented the two witnesses and the Respondent presented one witness. Twelve exhibits for the Department were received into evidence, and Mr. Norris offered one exhibit. The parties also stipulated to certain facts. (See Stipulated Issues, Facts and Exhibits filed May 15, 1986, Tr. 4-5)... /1
Findings Of Fact At all times material, Respondent, David L. Norris, was a certified general contractor, having been issued license numbers CG C011081 and CG CA11081, by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (PX 2; Stp. F. #1, Administrative Complaint paragraph 2) At all times material, Mitch Kobylinski (Kobylinski) was unlicensed, and KMK Remodeling and Repair (KMK) had no qualifying agent for the purpose of engaging in contracting under Section 489.119, Florida Statutes (1983). At times Kobylinski has done business as KMK. (PX 1; Stp. F. #2; Tr. 18-21) At no time did the name Kobylinski or KMK appear on the license issued to Norris by the Construction Industry Licensing Board, nor did Norris qualify a business by that name. (Stp. F. #1, Administrative Complaint paragraph 9) Norris knew Kobylinski was not licensed to engage in contracting. (Stp. F. #1, Administrative Complaint paragraph 5) Kobylinski had worked for Norris on prior jobs, including working for Norris in the capacity as overseer on a large room addition. Norris had paid Kobylinski by the hour, by the day or by the type of work Kobylinski did. On one other job, Norris and Kobylinski shared the job in that Kobylinski was paid by the day, however, at the end both Respondent and Kobylinski split the profit. (Tr. 21,22) Kobylinski, not Norris, was initially contacted by a leasing agent to improve a structure for Marianne Tomlinson (Tomlinson) at 21073 Jog Road, Suite 21, Boca Raton, to become Tootsie's, a nail salon. Kobylinski indicated to the leasing agent and Ms. Tomlinson that he would have to perform the work with a general contractor. (Stp. F. #3; Tr. 24) Kobylinski presented a proposal on KMK's letterhead, dated August 17, 1984, to Tomlinson for the work to be done. (PX 3; Tr. 16, 18) Norris also submitted a proposal, dated August 15, 1984, to Tomlinson. The evidence does not show what letterhead was used by Norris, because the exhibit is a carbon copy. (RX 1) The proposed cost of the work from Kobylinski was $23,593.75 and from Norris was $23,600. Both proposals made separate provisions for formica work at additional prices of $10,600 and $10,500 respectively. (Stp. F. #4; PX 3; RX 1) Only Kobylinski's proposal was signed by Ms. Tomlinson. (PX 3; Tr. 39) Norris and Kobylinski agreed that Norris would act as the overseer of the job and that, as compensation, Norris initially was to receive $1,000.00 to begin the job (Tr. 26) and further monies depending upon time Norris expended on the job (Tr. 22-23, 28-29). They also agreed that Kobylinski was to deal exclusively with Tomlinson and be responsible for all monies on the job and paying subcontractors. (Tr. 26, 43) No agreement was signed between Norris and Tomlinson providing that Norris would be the contractor for the job. (Tr. 38-39) Norris applied for and was issued, on September 18, 1984, the building permit for the Tomlinson job. (PX 4,5; Stp. F. #1, Administrative Complaint paragraph 6; Tr. 39) Norris contacted the electrician, at the initial stage of the job, for the electrical work. (Tr. 56) A certificate of occupancy was issued for the job. (Stp. F. #6; Tr. 46) Tomlinson made all payments for the construction work by checks payable to Kobylinski, drawn on Tomlinson's business account for Tootsie's. (PX 7; Tr. 30) Near the end of the job, Tomlinson gave Kobylinski a check, dated December, 1984, for $4,000.00. There were not sufficient funds in the account for Kobylinski to cash the check. Kobylinski returned to Tomlinson with the check, and Tomlinson issued him a replacement check for $2,000.00. She requested the return of the $4,000.00 check to her, but Kobylinski had not brought that check with him. At this point in time, the working relationship between Kobylinski and Tomlinson broke down. (PX 7; Tr. 31,32) Tomlinson submitted her punch list, dated December 17, 1984, to Norris. On it she identified him as the contractor for her job and stated she wanted to make the final payment to him. (PX 6) On January 20, 1985, due to problems with the punch list and remaining payment, Tomlinson and Norris met. As a result of that meeting, they reached an agreement dated January 20, 1985, as to what remained to be paid, viz., $4,113.75, and what work remained to be done. The August 17th agreement between Kobylinski and Tomlinson was referenced in the agreement of January 20, 1985. (PX 8; Tr. 45) By January 20, 1985, Kobylinski would have received all the monies for the cost of the work, according to the August 17th agreement, if the $4,113.75 were paid by Tomlinson. (Stp. F. #5) On January 21, 1985, Norris filed a claim of lien against the Tomlinson job. The lien indicated that the total value of the work was $23,593.75 (which was the cost of construction according to the contract with Kobylinski) and that the amount unpaid was $4,113.75. Norris filed the lien because, after signing the agreement of January 20, 1985, he and Tomlinson had further disagreements. (PX 9; Tr, 46) In a letter to Norris, dated April 23, 1985, in an attempt to get Respondent to release his lien, Tomlinson indicated that she had contracted with Kobylinski, not Norris, to do the work for her. (PX 11) As compared to the compensation received by Norris, Kobylinski has received over one-half the money from the Tomlinson job. (Tr. 28)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty as charged in the Administrative Complaint, as amended at the final hearing, and that an administrative fine of $1,000.00 be imposed. DONE AND ORDERED this 9th day of October 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 9th day of October, 1986.
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
Findings Of Fact Respondent, Antonio V. Mallo, is a certified general contractor in Florida and has been issued license number CGC004868, issued as an individual. (Exhibit 1, TR 21.) During times material hereto, Respondent was a certified general contractor in Florida practicing under the subject reference license as an individual. On October 26, 1984, Robert Golden contracted with Magic Eye Remodeling for the construction of an addition to his home situated at 19701 Northeast 12th Court, North Miami, Florida for the sum of $36,000. The contract price included the cost for labor and materials for a "turn key" job. (Testimony of Robert Golden and Jose Garcia, TR 25, 110, Exhibit 3 and TR 24.) As stated, the contract called for the construction of the entire project including air conditioning, electrical work, tile and bathroom fixtures. (Testimony of Jose Garcia, Exhibit 3, TR 112.) Magic Eye Remodelers was not licensed to perform contracting in Florida. Luis Valido, president of Magic Eye, and Jose Garcia, an employee of Magic Eye, negotiated and signed the contract with Magic Eye and Golden. (Testimony of Garcia and Golden, TR 21, 22 and 112, Exhibits 1 and 2.) Although Valido and Garcia had discussions with Respondent at the time Magic Eye was negotiating a contract with Golden, Respondent was not signatory to the Golden-Magic Eye Contract. (Testimony of Robert Golden, TR 34.) On November 6, 1984, Respondent obtained building permit number 84-01- 123-3 from Metropolitan-Dade County for the subject work at the Golden residence. (Exhibit 4, TR 28.) Construction commenced at the Golden residence and progressed slowly until approximately April 4, 1985 when owner Golden observed Magic Eye (its employees) preparing to leave the job. During that time, Garcia informed Golden that they had misused the construction funds advanced and could not finish the project. During that discussion, Magic Eye offered to complete the job if Golden would pay for the necessary supplies. Golden agreed to pay for the supplies. (Testimony of Robert Golden, TR 32.) During mid April, 1985, Golden contacted Michael O'Connor, Dade County code enforcement officer about his problems with Magic Eye and Respondent. O'Connor informed Golden to contact the contractor who obtained the permit, i.e., Respondent. Subsequent to that conversation and prior to June 4, 1985, Respondent was contacted by Golden. He visited Golden's home and worked on the construction project with Luis Valido. (Testimony of Robert Golden, TR 38.) This was the first contact between Golden and Respondent and the first time Respondent visited the construction site. In this regard, Golden was employed in a capacity whereby he did work early morning and late evening hours and spent all of his daytime hours on the construction site. (Testimony of Robert Golden and Jose Garcia, TR 34 and 125.) On or about June 3, 1985, all work at the project ceased and the Respondent informed Golden that Valido did not want to work there anymore since he wasn't making any money. (Testimony of Golden) Golden thereafter reported the problem to Michael O'Connor and Bob Wolfe, an investigator with the Department of Professional Regulation. O'Connor thereafter informed Respondent that unless he could produce a contract between himself and Golden, criminal charges would be filed by the State's attorney's office. (Testimony of Mike O'Connor, TR 166.) While at Michael O'Connor's office to sign the complaint with Petitioner, Golden was contacted by Respondent who advised that he would contract to complete the project. (Testimony of Golden, TR 40.) On or about June 12, 1985, Golden and Respondent negotiated a contract to complete the work for the sum of $39,882 of which a credit for $38,383 was given for work already performed by Magic Eye. As contracted, Respondent would receive $1500, fifty percent of which would be paid at the beginning of the tiling work and the remainder at completion of the project. Respondent performed plumbing and metal overhang work at the site after the contract was signed. (Testimony of Robert Golden, TR 41, 48 and Exhibit 6.) On July 10, 1985, Respondent notified Golden he was leaving the job because Golden failed to sign a change order to the contract and make payment as per the contract of June 12, 1985. At that time, or subsequent thereto, Respondent had not submitted a change order to the contract to Golden. Additionally, no payment was due Respondent under the June 12, 1985 contract for the tile was not ordered until September, 1985. (Testimony of Robert Golden, TR 54 and Bob Wolfe, TR 99, Exhibit 8.) When Respondent left the Golden project, the construction was sixty percent completed. Golden completed the project under an owner-builder permit. The total cost for the project was $62,804. (TR 65, 66 and Exhibit 11.) During the hearing, Respondent raised a question as to the validity of Petitioner's Exhibit number 6, claiming in essence that it had been tampered with by Golden. An examination of all the evidence introduced herein reveals that the agreement (contract) between Respondent and Golden (Petitioner's Exhibit 6) was valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent be assessed an administrative fine of $1,000. It is further recommended that Respondent's certified general contractor's license number CGC004868 be suspended for a period of two years. Provided however that Respondent make restitution to Robert Golden in the amount of $5,000, it is then recommended that the suspension be abated with Respondent's suspension reverting to a like term of probation. RECOMMENDED this 19th day of August, 1986, 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 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 86-1458 Petitioner's Proposed Recommended Order Paragraph 22. Incorporated as modified. COPIES FURNISHED: Ray Shope, Esquire 130 North Monroe Street Department of Professional Regulation Tallahassee, Florida 32301 Mr. Antonio Mallo 1256 San Miguel Avenue Coral Gables, Florida 33134 Mr. Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination at the final hearing was whether the contracting license of the Respondent Konrad v. Ising should be suspended, revoked, or otherwise disciplined by the Petitioner Department of Professional Regulation, for alleged violations of Chapter 489, Florida Statutes. At the final hearing Petitioner's Exhibits 1 and 2(a)-(g) were offered and admitted into evidence. The Respondent testified on his own behalf.
Findings Of Fact The Respondent Konrad V. Ising is licensed to practice contracting in Florida, and is a licensed certified general contractor holding license number CG C009669, a license current and active from 1982 through the present. The Respondent qualified Master Craft Constructors using license number CG C009669. During 1982, the Respondent entered into an association with Carlton Mosher whereby the Respondent would use his contractor's license to obtain building permits for construction projects which Mosher had contracted. The Respondent hoped his association with Mosher would lead to a partnership and assist him in obtaining practical experience in the construction field. During his association with the Respondent, Mosher was not a licensed contractor. In December 1982, Mosher, doing business as Re-Builders, contracted with Russell Hirstins to construct a room addition on his home at 4034 27th Avenue, St. Petersburg, Florida. On December 3, 1982, an application for a building permit for the job was submitted to the City of St. Petersburg and permit number 88638 was issued. The permit was obtained using the Respondent's license number and Respondent is listed as the job contractor. However, the Respondent performed no work on the Hirstins job, maintained no control over Mosher's work, failed to adequately supervise the project, and failed to qualify Re-Builders with the Construction Industry Licensing Board. Since becoming licensed in 1975, the Respondent has not been involved in any other disciplinary proceedings. At the final hearing, the Respondent candidly acknowledged that his association with Mosher was a regrettable mistake. The project was completed by Mosher to the apparent satisfaction to the Hirstins.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Construction Industry Licensing Board finding the Respondent Konrad V. Ising guilty of violating Section 489.129(1)(g) and (j), Florida Statutes, and imposing a $250 administrative fine. DONE AND ORDERED this 30th day of January 1984, in Tallahassee. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January 1984. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Konrad V. Ising Post Office Box 1023 Maitland, Florida 323751 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32302
