The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact About seven o clock on the morning of May 23, 1983, Michael S. Boyden telephoned the Pensacola offices of Shear Concrete Products, Inc. (Shear Concrete), and asked that 20 cubic yards of concrete be delivered to a construction site at 438 Creary Street. Under construction there was the house Mr. Boyden was building for himself and his family. (He has since finished it and moved in.) During the first conversation, somebody told him the concrete would arrive at half past ten. At eleven, with no concrete in sight, Mr. Boyden again telephoned; Danny Woods or Terry Knowles told him the concrete was on the way. In fact, it was at least five minutes before one before the first Shear Concrete truck was loaded, and this truck reached the site about two in the afternoon. Thirty-five or forty minutes later, the first truck had been emptied of concrete. The second Shear Concrete truck was loaded at quarter past one, but reached the construction site within minutes of the time the first arrived. Mr. Boyden, a concrete finisher and three other men he had hired were all present at the time the second truck arrived. At the finisher's direction, water was added to the concrete in the second truck; and its contents were also eventually emptied, wheelbarrow by wheelbarrow. By half past three, it was clear that a greater quantity of concrete would be needed; but it was evening before the finisher, Caesar Johnson, told Mr. Boyden that the concrete from the second truck was not setting up properly. Once cement, sand, water and gravel are mixed in a concrete mixer, a reaction begins that runs its course regardless of whether the mixture is poured in time. (The time this reaction takes depends on, among other things, how hot the day is.) If mixing is still going on when the concrete "gets hot," the elements of the mixture do not cohere and the batch is no longer useful as concrete. Adding water retards the reaction to the extent it acts as a cooling agent, but it does not reverse the process. By the time the mixture was poured into the Boydens' foundation, it was no longer suitable for its intended use. The other concrete had hardened by the next day, but concrete from the second truck, the one driven by Ronald Lane Thompson, was soft and friable. Mr. and Mrs. Boyden incurred expense in removing the miscongealed concrete. They ordered and received a replacement load on May 31, 1983, which was satisfactory. They have never paid for this load, even though Shear Concrete has billed them and given them a "notice to owner" in an effort to preserve its rights under the mechanics' lien law. Petitioner's proposed findings of fact have been considered and adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, conclusive or subordinate.
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Did Respondent, Commercial Concrete Systems, LLC (Commercial Concrete), discriminate against Petitioner, Bernard Maybin, because of his race or color?
Findings Of Fact Mr. Maybin was an employee of Commercial Concrete in 2019. Mr. Maybin is a dark-skinned African-American. In 2019, Commercial Concrete reprimanded Mr. Maybin for tardiness and absenteeism on January 18, April 15, and August 16, 2019. On November 8, 2019, Commercial Concrete terminated Mr. Maybin for being absent all of the preceding 30 days. This was consistent with its policy of terminating employees who were absent for thirty days without communicating with the company. During at least some of the days that he was absent, Mr. Maybin was recovering from an automobile accident. He advised Commercial Concrete of the accident. But he did not advise it which days he would be unable to work due to the accident or request leave. He also did not communicate with Commercial Concrete during the period of absenteeism, beyond advising it of the accident when it first occurred. There is no evidence that any non-African-Americans or light-skinned employees with attendance failings similar to Mr. Maybin's were treated differently than him. There is no evidence of statements by any manager or other employee of Commercial Concrete alluding to Mr. Maybin's race or color. There is no evidence that non-African-American or light-skinned employees were paid more than Mr. Maybin or received vacation pay that he did not, although his petition makes that allegation. When Commercial Concrete discharged Mr. Maybin, it was not aware that he had filed a complaint of discrimination with the Commission.
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Petitioner Bernard Maybin. 2 Federal case law dealing with Title VII applies when interpreting chapter 760. School Bd. of Leon Cty. v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981). DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 9th day February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Peter Shoup Commercial Concrete Systems, LLC 6220 Taylor Road, Suite 101 Naples, Florida 34109 Bernard Maybin 290 Lowell Avenue North Fort Myers, Florida 33917 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should imposed.
Findings Of Fact Preliminary matters Petitioner, Department of Business and Professional Regulation (Department), is a state agency charged with the responsibility, inter alia, of regulating the practice of contracting and, pertinent to this case, prosecuting administrative complaints for the unlicensed practice of contracting, pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Edward Irons, is not now, nor was he ever, licensed by the Department to engage in the business or profession of contracting in the State of Florida. Irons Contracting For some time prior to August 1992, Respondent's brother, Gerry Irons, was engaged in the business of contracting in the State of New York. At the time, Gerry Irons was licensed by the State of New York as a contractor, and did business as Irons Contracting. Respondent was not present in New York State during that period, and had no interest or involvement with his brother's business. Following the landfall of Hurricane Andrew in August 1992, and the opportunities it presented to the construction industry, Gerry Irons relocated to Fort Lauderdale, Florida. There he engaged in construction related activities under the name Irons Contracting, and, when joined by Respondent as discussed infra, he was engaged by Tank Mangoya, a licensed contractor, to assist in the repair of residential damage caused by Hurricane Andrew. At no time was Gerry Irons or Irons Contracting licensed or certified as a contractor by the State of Florida. The Respondent and his involvement with Irons Contracting Respondent, Edward Irons, was born December 13, 1948, and completed his formal education with graduation from high school. His training and experience post-high school, to the extent it appears of record, was shown to include boat repair (painting and varnishing), but not construction related activities (until his employment by his brother, discussed infra, in or about August 1993). At the time of hearing, Respondent was engaged in reconditioning (washing, waxing, and buffing) automobiles. Personally, Respondent presents as a well, if soft- spoken gentleman, who is pleasant, candid, and credible. At or about the time Gerry Irons relocated to southeast Florida, Respondent was residing in Venezuela with his family, aboard his boat, and had so resided for approximately one year. Previously, Respondent and his family had resided in the Bahamas for approximately five years. In or about August 1993, about a year after Hurricane Andrew struck southeast Florida, the Irons family began their return voyage to the United States. At some point during the voyage they encountered a storm, which severely damaged their boat. Fortunately, Respondent was able to run the boat aground on an island; however, the boat, as well as the family's possessions, were lost. Lacking insurance, Respondent's family was rendered homeless, and without any means of support. Responding to his brother's call, Gerry Irons offered the family accommodations at his home, and sent them money and airplane tickets for their return. Upon their return, Respondent's family resided with Gerry Irons for about six months, after which they relocated to South Carolina. In the interim, Gerry Irons employed Respondent to work in his business (Irons Contracting). At the time of Respondent's initial employment, Gerry Irons was engaged by Tank Mangoya, a licensed contractor, to assist him in repairing residential damage suffered by Hurricane Andrew. Under his arrangement with Mangoya, Gerry Irons included Respondent's time in his billings to Mangoya. Mangoya would pay the bill submitted by Gerry Irons, and Gerry Irons would pay Respondent for his labors. Toward the end of 1993, Mangoya laid-off Gerry Irons and, consequently, Respondent. At the time, or immediately prior, Irons Contracting had been working under Mangoya repairing a home for the Chasner family in southwest Dade County. The Chasner family was apparently satisfied with the work performed because when asked by a neighbor, Ms. Sally Stern, they recommended Irons Contracting. At the time, Ms. Stern was renting a home in the neighborhood, having been displaced from her residence at 10452 Southwest 114th Street, Miami, Florida, because of damage caused by Hurricane Andrew. Apparently, she had employed a number of contractors to work on the home, and at the time she approached the Irons was dissatisfied with the progress made by the current contractor. Following discussions with Ms. Stern, Gerry Irons, who was no longer employed by or working under a licensed contractor (Mongoya), approached a friend of his, Terry Klob, a licensed contractor. While not privy to the entire conversation, it was Respondent's impression that Mr. Klob agreed to be the contractor on the job and Gerry Irons (Irons Contracting) would do the actual work.1 Subsequently, Gerry Irons met with Ms. Stern to inspect the property and negotiate the scope of work to be performed, and then prepared a proposal for the repair of Ms. Stern's home at 10452 Southwest 114th Street, Miami, Florida. The proposal named Irons Contracting as the contractor, and the proposed contract price was $118,093.75. On December 29, 1993, Gerry Irons and the Respondent met with Ms. Stern, and she acknowledged her acceptance of the proposal by affixing her signature to the agreement. Signing on behalf of Irons Contracting were Gerry Irons and the Respondent. Notably, it was not customary for the Respondent to sign documents on behalf of Irons Contracting; however, in this instance, Gerry Irons prepared the contract to include Respondent as a signatory to assure Ms. Stern, who had apparently developed a sympathetic concern for Respondent's loss, that he would be employed to work on her house. At no time was Ms. Stern led to believe, nor did she ever believe, that Respondent was a licensed contractor. Rather, it was always her understanding that Gerry Irons was the licensed contractor. Not only was it not customary for Respondent to sign on behalf of Irons Contracting, it had never occurred before and never occurred again. Notably, Irons Contracting was Gerry Irons' business, and he exercised primary control over its operations. Gerry Irons operated the business from his home; owned all the tools and other equipment used in the business; conducted all negotiations with Irons Contracting customers or potential customers; signed contracts, proposals, correspondent, and all other documents on behalf of Irons Contracting; and paid the bills or debts of Iron Contracting, including Respondent's pay, by check.2 Respondent's association with Irons Contracting was strictly as an employee,3 who was paid on an hourly basis for the work he did on Irons Contracting jobs. On an average week, Respondent would usually earn approximately $400. During part of the period following the signing of the contract and April or May 1994 when work ceased,4 Respondent worked as a day laborer on Ms. Stern's house,5 as well as other Irons Contracting projects. During that period, Ms. Stern made payments totaling $35,000. Each payment was by check payable to Irons Contracting, and each check was endorsed by Gerry Irons. Respondent, apart from being compensated for his daily labors, did not share in any of the proceeds Gerry Irons received from Ms. Stern. The costs of investigation and prosecution At hearing, Petitioner offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with an attorney's time, as of April 23, 1998, totaled $663.88. (Petitioner's Exhibit 8).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order: Finding the Respondent guilty of Counts I and II of the Administrative Complaint; Finding the Respondent not guilty of Counts III through VIII of the Administrative Complaint; Imposing an administrative penalty of $300.00; and Requiring, pursuant to Section 455.227(3), Florida Statutes, that the Respondent pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $663.88. DONE AND ENTERED this 11th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1998.
The Issue The issue for consideration in this matter is whether Respondent's operation of an overweight truck over the low-limit bridge involved herein is a violation and if so, what penalty should be assessed.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier and truck vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. The parties agree that on August 8, 1991, Respondent, P.J. Constructors, Inc. was prime contractor to the Petitioner, Department of Transportation for the removal and replacement of a highway bridge over the Florida Turnpike where it intersects with Hood Road in Palm Beach Gardens, Florida. At the time in issue, Respondent was operating a 1981 MAC tractor trailer low boy on which it was transporting a piece of heavy construction equipment. At the time in issue, Officer Neff stopped the vehicle for crossing over this bridge which was clearly posted as having a maximum weight limit for tractor trailers of 15 tons, (30,000 pounds). Following standard Department weighing procedures measuring weight at each axle and combining those weights to arrive at a total, and using portable Department scales which are calibrated every 6 months for accuracy, Officer Neff determined the vehicle weight at 54,800 pounds. This was 24,800 pounds over the legal weight and resulted in a penalty assessment of $1,240.00 at 5 per pound of overweight. The approaches to this bridge were clearly marked at several locations with signs indicating the maximum weight permitted for this type vehicle was 15 tons. These signs were located at sites which were far enough away from the bridge to give a driver ample notice of the restrictions and ample opportunity to turn around or to take an alternate route over roads situated between the signs and the bridge. In addition to the signs, however, earlier the same day, as warnings were issued to users of the bridge who were going to a construction site on the other side, Respondent's driver was specifically told of the bridge's low limits and advised of an alternate route to avoid it. Admittedly, the alternate routes would be longer than the route over the bridge, but no evidence as presented by either party as to how much the difference was. Respondent's General Manager, Mr. McAllester, claims the signs were not in position on the two occasions he visited the site during the bid process in February or March, 1991. He cannot say that he knew where the signs might have been located (away from the site), but avers only that he did not see any. However, officer Neff specifically checked to see that the signs were in place before issuing the citation on August 8, 1991 and it is, therefore, found that the signs were properly in place on that date. Mr. McAllester also urges in the alternative, however, that even if the signs were in place, as contractor on the bridge replacement project, the terms of the bid specifications, which directs contractors from operating equipment in excess of the maximum weights set out by law, exempts the contractor where the existing road or bridge is to be removed as a part of the work included in the project. The bridge in issue here was removed and replaced as a part of the project on which Respondent was contractor and the current bridge has no limit. Mr. McAllester admits that when the instant citation was issued, Respondent had no special permit to cross the bridge with an excess load. Once the citation was issued, however, Respondent quickly retained an engineer to do a structural analysis of the bridge in issue. Based on that analysis, Respondent thereafter sought and obtained permission to cross the bridge with an overload provided all other traffic was stopped on Hood Road while the excessively laden vehicle was on the bridge so it would be the only vehicle thereon at the time, and provided that vehicle kept to the center of the road while on the bridge. Subsequent to the citation and before the permit was issued, Respondent did not operate any excessively laden vehicles on the bridge. Respondent admits that at the time the citation was issued, there was traffic operating both on the Turnpike and on Hood Road. Therefore, a potential danger to the public existed. Nonetheless, traffic was maintained on both roadways throughout the entire project without incident. None of the weight limits or a need to maintain weight standards was discussed at the pre-bid conference, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $1,240.00 against the Respondent. P.J. Constructors, Inc. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Foster McAllester Vice President and General Manager P.J. Constructors, Inc. 4100 S.W. 70th Court Miami, Florida 33155 Ben G.Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel ]Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On December 3, 1979, the petitioner forwarded to the Division of Administrative Hearings a request for a formal hearing in the instant case. On January 7, 1980, the hearing was scheduled for February 28, 1980 in Bradenton, Florida. The Notice of Hearing which was mailed to the Respondent at the address furnished the Petitioner was returned undelivered with no forwarding address. Attempts to locate the Respondent proved unsuccessful until June 5, 1981, at which time an investigator from the Board located the Respondent working as a foreman on a construction site in Clearwater, Florida, and served him with a copy of the Notice of Hearing. On April 15, 1978, the Respondent entered into a contract with Mollie Cooper to construct a 12' x 31' room addition including a family room, bedroom and bath, onto an existing residence. The contract price was $11,340.00. An initial payment of $5,670.00 was made on April 17, 1978 by Ms. Cooper to the Respondent's construction company, Southern Cross. In the contract, the Respondent agreed to complete the working drawings for the addition and to obtain building permits. The Respondent obtained a building permit for the project from the City of Bradenton, Department of Planning and Development on May 17, 1978. The Respondent began working on the addition in May of 1978. On May 30, 1978 workmen poured the slab for the addition. When Ms. Cooper awoke on June 4, 1978, she discovered approximately four inches of water in her house which was caused by the slab being poured at the wrong angle. Later that day, a workman arrived at Ms. Cooper's home and removed the ends of the roof including fascia and guttering. Nothing further occurred until June 29, 1978 when the Respondent delivered concrete blocks to Ms. Cooper's home. Ms. Cooper never spoke to the Respondent after June 29, 1978, but her lawyer did contact the Respondent's attorney regarding problems which she was having with the Respondent's work. The job was never finished by the Respondent and Ms. Cooper was required to spend approximately $1,500.00 to repair her home. The Respondent holds active registered contractors license No. RR 0012951. The City of Bradenton has no local licensing board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license as a registered residential contractor be revoked and an administrative fine of $500.00 be imposed. DONE and ORDERED this 21st day of September, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 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 September, 1981. COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202
Findings Of Fact Respondent has been a certified building contractor in the State of Florida. He held license number CB C033166. The license was first issued on March 7, 1985. As of March 31, 1988, Respondent had not renewed the license, which expired on June 30, 1987. Respondent is not and has never been certified as a contractor with the Orange County Building Department. On June 18, 1987, Respondent and Richard G. Rapagnani entered into a contract for Respondent to add a screen porch onto an existing slab at 8763 Belter Drive, Orlando, Orange County, Florida, which was Mr. Rapagnani's residence. The total contract price was $4013. The contract price was payable $1500 down, $1500 due upon completion of framing, and the balance due in two payments with the final payment due upon completion. Prior to obtaining the contract, Respondent assured Mr. Rapagnani that Respondent would take care of obtaining the necessary building permits for the job and that the job would be of high quality. Respondent began the work without obtaining the necessary building permits. He never obtained any permit or any inspection for the job. In performing the work, Respondent removed part of the existing roof. He placed a plastic sheet over the open area, but failed to affix the plastic so as to prevent rain from penetrating the roof, ceiling, and walls. After installing some posts and rafters, Respondent left the job. When asked numerous times by Mr. Rapagnani to return, Respondent offered various excuses. Respondent claimed that he needed more money and suggested that Mr. Rapagnani purchase some of the necessary materials directly from the suppliers. On July 10, 1987, Mr. Rapagnani paid Respondent $1000. Respondent in turn promised to work on July 17 and 18 with materials that he had recently purchased. However, when Respondent failed to show on July 17, Mr. Rapagnani called him and learned that he had no money left and no materials. Mr. Rapagnani then purchased shingles and skylights, and Respondent returned on July 18 to install them. He never completed the installation of these items, and the shingles and skylights that he did install leaked badly. Over a period of two months, Mr. Rapagnani called Respondent at least 50 to 60 times to request him to finish the job. Mr. Rapagnani paid Respondent a total of $2700 and paid an additional $789 for shingles, skylights, and other materials called for in the contract. In mid-August, Mr. Rapagnani fired Respondent. After hiring another contractor about six months later, Mr. Rapagnani was forced to spend approximately $3000 more to complete the work that Respondent had contracted to do. When the new contractor viewed Respondent's roofing job, the contractor determined that the roof was about to fall down due to faulty workmanship. Respondent had failed to secure the roof to the house. It took two to two and one-half days to correct the problem. While on the job, Respondent caused damage to the house and other property of Mr. Rapagnani. He damaged a window screen adjacent to the work area. He punched a hole through the drywall into the living room. His work on the roof led to water leakage into the bedroom. He dropped shingles onto Mr. Rapagnani's boat, thereby damaging it. He never fixed any of this damage. On October 27, 1987, the Orange County Building Department issued a Notice of Code Violation to Mr. Rapagnani listing 21 violations of the applicable code provisions. All of these violations, including the failure to obtain the necessary permits, were attributable to Respondent. Several of the violations pertained to work affecting the structural integrity of the roof and screen porch.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of deliberately proceeding without a timely permit, deliberately failing to obtain a required inspection, and engaging in the contracting business with an expired license. It is recommended that the Final Order impose an administrative fine of $2500. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of May, 1988. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Peter Dethlefsen 2190 Glenwood Drive Winter Park, Florida 32792 Peter Dethlefsen 628 Lander Road Winter Park, Florida 32792 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact During 1981, a five-story, ninety-eight unit condominium was constructed in Deerfield Beach, Florida. This condominium was called the "Beach House". The prime contractor on the Beach House project was "Morelite Construction Company." The licensed general contractor who qualified Morelite Construction Company at the time of the Beach House project and who was closely involved with that job was Mr. Raymond Orsi. The engineer who designed the Beach House was Mr. Alan Reese. Morelite Construction Company hired as a subcontractor "General Contractors of Florida, Incorporated," which firm was qualified by Respondent at the time of the Beach House project. At the time of the Beach House project and final hearing in this case, Respondent was licensed as a contractor as alleged in the Administrative Complaint, was qualifying agent for General Contractors of Florida, Inc. (hereafter GCOF) and responsible for that firm's work. GCOF was hired by Morelite as the "shell contractor." GCOF's contract called for GCOF to do all the concrete and masonry work in building the Beach House. GCOF was to build the structural shell of the building, leaving all plumbing, electrical, and finish work to be done by other parties. More specifically, GCOF was to construct all the plywood frames for the numerous concrete beams and columns for the Beach House, to assemble the steel reinforcing rods inside those forms, and then pour the concrete into the forms. The steel and concrete was supplied by Morelite. GCOF was also responsible for constructing the numerous concrete block walls throughout the condominium and pouring the concrete floors on each of the five levels of the condominium building. The floor joists and floor form work were done by other firms, and GCOF's responsibility was to pour concrete slabs on top of those joists and to assure proper thickness of the slabs. GCOF's contract called for the firm to construct plywood forms for the various concrete beams and columns on the Beach House, to assemble inside those forms the steel in reinforcing rods, and to pour the concrete into the forms. The steel and concrete was supplied by Morelite, but all labor and know-how was supplied by GCOF. As admitted by Respondent, after removing the plywood forms on numerous beams that had been assembled and poured by GCOF, it was discovered that extensive honeycombing on the bottom of the beams had occurred. Irregular void and pitted areas at the bottom of the beams were found where there should have been solid concrete. It was apparent that the honeycombing was caused by the failure of the concrete to reach the bottom of the forms. Although the Respondent asserted that the honeycombing was caused by an improper concrete mix which was supplied to him, slump tests performed by an independent testing laboratory from concrete as it as being delivered and used by Respondent, show that the concrete Respondent was using was in the range that would be required to properly form the beams. Acceptable construction practice calls for a contractor doing concrete work such as Respondent's firm to repair honeycombing within several days of removing the plywood forms in order to minimize rusting of reinforcing steel. The honeycombing was obvious to the naked eye and with a minimal degree at supervision by GCOF, it would have been immediately corrected. The honeycombing occurred because of Respondent's failure to sufficiently "vibrate" the concrete during the pour. Concrete is vibrated by placing a rapidly vibrating cylinder in the concrete as it is being poured into the form. The vibration tends to cause the crushed aggregate in the concrete to work its way around obstacles such as reinforcing bars and down to the bottom of the form. The honeycombing problem on this project was approximately ten times worse than would normally be expected on similar jobs of similar design and complexity. Ten percent of the concrete on this job was effected with honeycombing, whereas, normally only one percent of the concrete is affected. These voids and honeycombs constitute a violation of Section 2506.4 and 2506.6 of the South Florida Building Code which was in effect in Broward County, where the Beach House is located, when the project was being built. The Respondent received some off-color defectively mixed concrete and for one day concrete delivery was prematurely stopped. However, this occurrence was limited to one or two particular beams, and in any event did not involve the honeycombing problems, unfilled wall cell problems, or other problems alleged in the Administrative Complaint. GCOF's contract called for GCOF to place reinforcing steel in the concrete block walls throughout the project at a spacing of approximately four feet, and then to fill each such cell with concrete. Concrete block walls divided the condominium apartments from one another, and also constituted the exterior walls of the condominium building. The concrete block walls rested on the poured concrete beams for each floor. The walls were of the common variety of concrete blocks commonly seem throughout South Florida. Each such block contains holes or cells. The design called for having, approximately every four feet, a vertical series of blocks in which tee-holes were vertically aligned with one another from top to bottom of the wall. A long piece of reinforcing steel bar was then placed in the vertical series of block cells and the entire vertical series of cells was filled with solid concrete poured from above. There was a failure, however, to comply with the requirement concerning these reinforced masonry cells. On a typical section of this job, approximately 30 or more such vertical cells could be expected to be unfilled. In the same typical section of a comparable job where solid construction practices were being observed, approximately four or five cells could be expected to be unfilled. The cell problem on this project, as stated by one expert, was "grossly out of line." Moreover, in numerous cases the "cleanout holes," which were required by contract, were not present. There was a significant occurrence of instances in which reinforcing steel was not placed in the cells as required. The failure to fill the cells constituted a violation of Section 2704.10(d) of the Broward County Building Code in force when the Beach House was built. The honeycombing and unfilled cell errors occurred in GCOF's work over the course of approximately five months during which several floors of the building were being built and were seen throughout all three floors of the structure. GCOF's contract required that firm to pour the cement for each floor built. The concrete slabs should have been three inches thick, but varied in thickness from 1.75 inches to five and a half inches. It was Respondent's assertion that this variation was caused by a bow in the "Hambro" joists that were used on the Beach House. The "Hambro" joists refers to joists manufactured by the Hambro Company. Each joist has built into it a slight upward bow. The joists are supported an each end of the poured concrete beams. The joists are then covered with forms, and concrete is poured over the forms to constitute the floor of each level of the building. The weight of the concrete presses the bow out of the Hambro joist. It was Respondent's assertion that the thickness variation was caused by a design error in that the concrete weight was insufficient to press out the bow. Thus, Respondent asserted that the pattern of variation in thickness was that the concrete slabs were thickest at each side corresponding to the ends of the Hambro joists, and grew steadily thinner toward the center of the slab, where the joist bow brought the joist and subflooring to their highest point. However, field observations demonstrated that the thickness variations occurred randomly about the slabs as seen through the numerous plumbing holes routinely cut through the slabs. There was no pattern of the slabs being thinnest down their center lines. The variation in slab thickness was excessive as compared to acceptable practice in the industry, and deviated from what could be expected to be found on a similar job. The slabs were at times half as thick as required, and at other points they were twice as thick as required. These variations constitute violations of Broward County Building Code Sections 301.1, 301.2 and 301.4, in force when the Beach House was built. GCOF's duties on the job included placing certain corner steel. The corner steel was made of pieces of reinforcing steel rod, bent in an "L" shape, and placed in the beam forms at each corner of the building before any of the corner beams were poured with concrete. Their purpose was to tie the walls together where they met at 90-degree corners. The corner steel was required by the engineer's drawings and notes, and personnel of GCOF should have noted the requirement for placing said steel. None of the corner steel was placed as required. The absence of the corner steel was noted by other parties when the Beach House was approximately one-third complete. That entire one-third of the job had been done without placing any of the corner steel bars as required. The omission of the corner steel was a serious safety hazard and a violation of the Broward County Building Code Sections 302.1(e), 302.2 and 302.4. Voids in concrete columns existed underneath the beams on the project in at least two places. These vertical columns, which were formed, reinforced, and poured by GCOF were on the lower floor, and across their top ran an important horizontal beam. Upon inspection, it was noted that at the top of each column, which was designed to support the horizontal beam, the concrete had significant voids or empty spots. As a result, the load capacity of the columns was seriously weakened. These voids were critical and severely affected the structural integrity of the building. It was shown that they were visible to the naked eye and were of such a key nature that experienced construction personnel should have noted the problem immediately. Nevertheless, GCOF had removed the forms and had said nothing about the problem, allowing work to go on above without correction, adding another floor on top of the defective columns. When the problem was discovered an immediate temporary shoring all around the affected columns was ordered by the project engineer until repairs could be made. These voids constituted a violation of Broward County Building Code Section 2506.4. On July 22, 1981, the Deerfield Beach Building Department, which had jurisdiction of the Beach House job issued a stop work order on the project. The causes of the stop work order were the same deficiencies alleged in the Administrative Complaint, and described above. A series of meetings between the building department design engineer, the prime contractor, the owner and GCOF, concerning necessary remedial work was necessary. Certain repairs were done, and on August 7, 1981, the building department allowed work to resume. In July of 1981, Morelite Construction Company fired GCOF from the job due to dissatisfaction with the quality of GCOF's work. GCOF entered into its contract for the Beach House job on March 19, 1981, began work in March, and had been on the job approximately five months prior to being fired. The competency of GCOF's personnel on the job and the quality of supervision provided by Respondent and Respondent's personnel were constant problems throughout the job, and this was repeatedly brought to Respondent's personal attention. After the building department issued its stop work order, a series of meetings were held between the building department, the owners, the general contractor, Mr. Reese, and representatives of GCOF concerning necessary remedial work. Respondent did not attend any of those meetings, despite the fact that it was GCOF's work that was in issue. During the five months that Hector Vergara, the project engineer, inspected GCOF's steel placement, he never saw Respondent in the building. It was the Respondent's standard procedure to check on the job by stopping his car outside the site end asking an employee via mobile radio how the job was going. On occasion, Respondent would go to the construction shack on the job, but never ventured into the project. The failure to reinforce the masonry block walls resulted from insufficient supervision by GCOF on the job. GCOF never inspected the placement of steel reinforcing prior to the engineer' inspection. The problems cited in the Administrative Complaint were caused by a lack of supervision by the workmen of GCOF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for six months. DONE and ENTERED this 30th day of March, 1984, in Tallahassee, Florida. 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 March, 1984. COPIES FURNISHED: Ira L. Varnum Post Office Box 3100 Deland, Florida 32720 Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent violated Sections 489(1)(d),(j) and (m), Florida Statutes?
Findings Of Fact At all times relevant Respondent was licensed as a registered residential contractor in Florida and held license number RR0046781. Sometime in late April, 1985, Respondent entered into a contract with Mr. Reames. The contract called for Respondent to build a house at 1512 S.E. 24th Avenue, Ocala, Florida. Mr. Reames moved into the house on December 23, 1985, after a certificate of occupancy was issued, even though the house was not fully completed. Mr. Reames completed a "punch list," consisting of an undetermined number of items which needed to be completed, and asked Respondent to complete the items. Most items in the punch list were never completed by Mr. Huey. After the initial attempt by Mr. Reames to get Huey Construction Co. to complete the items in the punch list, Mr. Reames did not contact Huey Construction Co. about the other problems found subsequently. In March or April, 1986, Mr. Reames noticed that the wood floor was buckling and separating. He contacted Mr. Gassett, the person who had installed the floors, who determined that a water leak was causing the problem. In November, 1986, Mr. Reames hired Mr. Clyatt, a licensed general contractor, to inspect the house, to go over the punch list items which needed to be completed, and to correct other items which were discovered to be inadequate. In the first week of January, 1987, Mr. Norton, the chief building inspector for the City of Ocala, was asked by Mr. Reames to inspect the house. Mr. Norton found a number of problems and identified some violations of the City of Ocala Building Code (Code) which was in effect at the time the house was built. The inadequacies, problems and code violations found by Mr. Clyatt and Mr. Norton are set forth below. Ventilation The Code requires 1 sq. ft. of opening for each 150 sq. ft. of crawlspace, in order to provide ventilation. Since the house had 2720 sq. ft. of crawlspace, it needed 18 sq. ft. of openings. The house, however, had only 6 openings of 1 sq. ft. each, or 6 sq. ft. of openings. Additionally, the plans for the house indicated where the openings were to be located and the completed house did not meet the plan specifications in this area. Mr. Clyatt added 15 openings, 8 in. by 12 in. each. In addition to the inadequate openings, one area of the crawlspace was completely enclosed, with no ventilation. The Code requires that attic ventilation for this type of house be 1 sq. ft. of opening for each 300 sq. ft. of space. The plans called for 3 in. by 12 in. vents at 24 in. intervals. The openings in the house were approximately 2 in. in diameter and were placed sporadically. From a visual inspection, without taking actual measurements, the openings for attic ventilation were inadequate and did not provide the ventilation required by the Code. Roof The roof of the house contained exposed nails and staples on the shingles, including some which had rusted. Nails and staples should not be exposed on a shingle roof, since they can lead to leaks. The roof leaked in one area in the back of the house. Mr. Reames contacted H & B Roofing, the subcontractor who had installed the roof, who corrected the problems with the roof. Driveway The Code requires that a driveway permit be obtained prior to the installation of a driveway. Also, the Code requires an inspection of the driveway prior to the concrete being poured. Respondent obtained the required permit, but failed to call for the required inspection prior to pouring the concrete. By letter dated December 10, 1985, Respondent notified the Building Inspection Office of the City of Ocala that the driveway was poured according to the Code. By the time of the inspections by Mr. Norton and Mr. Clyatt, several cracks were present in the driveway. SubFloor Due to the water damage set forth in paragraph 5, supra, the wood floor was removed in late December, 1986 or early January, 1987. The plans originally called for the subfloor to be constructed of one-half inch plywood decking, particle board, and 15 lb. felt paper. However, the Code requires subfloors to be constructed using three-quarter inch plywood, and the plans contained a penciled in notation where the one-half inch was changed to eleven- sixteenths. The subfloor had been constructed using one-half inch CDX plywood decking with particle board on top. No felt paper had been used. Additionally, the subfloor had been nailed in violation of the Code. The Code requires nails to be spaced two and one-half inches on the perimeter of the plywood and four inches in the interior area of the plywood. The subfloor of the house contained boards which had only been nailed on the perimeter and boards which had a large number nails in one area, far in excess of the amount required by the Code. Girders When Mr. Clyatt inspected the house he discovered that approximately 6 of the wood girders supporting the floor appeared to have been cut short and, instead of bearing on the stem wall bearing plate, were supported by posts made of two-by-four and two-by-six non-pressure treated lumber. The posts were resting on soil and the bottom part of the posts had decayed. This construction is a violation of the Code which requires that pressure treated wood be used, and is a violation of construction standards which require that the girders rest on the bearing plate or on concrete. See Petitioner's Exhibit 6. Also, the girders supporting the wood floor were not resting directly on the block piers. Wood shims had been added to fill the space between the girders and the block piers. The wood shims were not pressure treated. The Code requires that pressure treated wood be used in this situation. Additionally, proper construction requires that the girders rest directly on the block piers. Foundation Wall A foundation wall was not bearing on the footing properly. The foundation wall was constructed of 8-inch block and portions of the wall had only one to two inches bearing on the footing; the rest of the wall was resting on the soil. This is a violation of the Code. This problem was corrected by Mr. Clyatt by removing the soil on which the wall rested and pouring concrete under the wall. See Petitioner's Exhibit 7. Cabinets The cabinets in or near the utility room area of the house were loose and separating from the soffit and the wall.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent and imposing a fine of $1500.00. DONE and ORDERED this 31st day of October, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 31st day of October, 1988. APPENDIX Case Number 88-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. Accepted. RO2. Accepted. RO3,4. First sentence, Accepted RO7. Second sentence accepted for proposition that Mr. Reames paid Mr. Clyatt $30,000 for work done on the house. However, the evidence fails to establish what portion of this amount was paid for problems caused by Respondent. 5-10. Accepted generally as to what Mr. Clyatt observed. RO19,20. But see discussion in Conclusions of Law portion of this RO. Accepted. RO13. Accepted generally. RO14. Respondent was not asked to repair the shingles when this deficiency was discovered about one year after Respondent had ended work on the house. First sentence rejected. Second sentence, accepted R016, but no competent substantial evidence was presented to show what caused the cracks. Accepted generally as to what was observed. RO22. But see discussion in Conclusions of Law portion of RO. Accepted. RO18. Accepted. RO18. Accepted. RO21. Accepted. RO21. Accepted. RO10,11. Accepted. RO10,11. Accepted. RO17. Accepted. RO12. Accepted. RO12. Accepted. RO15. Accepted. RO15. Accepted. RO8. Respondent's Proposed Findings of Fact Respondent's post-hearing statement consists of a two page letter with attachments. The attachments have been addressed in the Background section of this Recommended Order. The proposed findings of fact contained in the letter are addressed below. References are to paragraphs and sentences within each paragraph. Proposed Finding of Fact Number Ruling and RO Paragraph Par. 2 RO2 establishes that a contract existed; no finding is made as to whether the contract was oral or written, or as to what the contract amount was. Par. 3 First sentence is not supported by the evidence. Second sentence, accepted. Third-Fifth sentences rejected as not supported by competent evidence; however, no finding is made as to who is at fault for this problem. See Conclusions of Law. Fifth sentence is not a finding of fact. Par. 4 Not a finding of fact. Par. 5 (References are to statements after each number in the paragraph) #8 is accepted generally. RO15. #9 rejected as not supported by competent evidence. #10 rejected as not supported by competent evidence; some of the allegations were proven to exist as set forth in this RO. #11 and 12 are not findings of fact. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert D. Huey 3710 Southeast 12th Place Ocala, Florida 32670 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are: (1) whether Petitioner, Nu Way Drywall, LLC, was in violation of the workers' compensation requirements of Sections 440.107 and 440.38, Florida Statutes (2007),1 by failing to secure workers' compensation coverage for its subcontractors and/or employees of its subcontractors; and (2) if yes, what penalty should be assessed against Petitioner.
Findings Of Fact On April 15, 2008, Germaine Green, a compliance investigator for the Department, conducted a random compliance check of a work site where an office building was under construction. The work site was located at 698 South Tamiami Trail in Osprey, Florida. During the compliance check, Ms. Green observed three men hanging metal framing for the interior walls. One of the men at the work site identified himself as Ted Webb and told Ms. Green that he was in charge of the framing work being done and that the other two men working with him were his sons. Mr. Webb told Ms. Green that his company, Ted Webb, Inc., had workers' compensation coverage through an employee leasing company, Howard Leasing. Ms. Green telephoned the leasing company and was told that the contract with Ted Webb, Inc., had been terminated or had lapsed in December 2007. Ms. Green then checked the Department's computerized database known as Coverage and Compliance Automated System (CCAS). The information maintained in CCAS allowed Ms. Green to determine whether Mr. Webb or his sons had workers' compensation coverage or exemptions from such coverage. After checking CCAS, Ms. Green determined that Mr. Webb and his company did not have workers' compensation coverage and that Mr. Webb and his employees had no exemption from such coverage. Upon making this determination, Ms. Green issued a Stop-Work Order. Mr. Webb advised Ms. Green that Nu Way Drywall, LLC ("Nu Way"), had subcontracted with him or Ted Webb, Inc., to perform the framing services at the work site. Under Florida law, a subcontractor that does not have workers' compensation coverage becomes the "statutory employee" of the contractor that hired the subcontractor. Upon being told that Mr. Webb was working for Nu Way, Ms. Green checked CCAS to determine if that company had active workers' compensation exemptions for any of its employees. Ms. Green's review of CCAS revealed that Nu Way had an exemption for only one person, Alex Rivera, the managing member of the company. Ms. Green contacted Mr. Rivera to determine whether he had received documentation that Mr. Webb had workers' compensation coverage prior to Mr. Webb's beginning work on the Osprey project. Mr. Rivera reported that he had received information in the past that indicated that Mr. Webb had workers' compensation coverage. However, Mr. Rivera told Ms. Green that he had obtained information regarding Mr. Webb's workers' compensation coverage before Mr. Webb began work on the subject work site. At all times relevant to this proceeding, Nu Way had workers' compensation coverage through an employee leasing company, Employee Leasing Solutions. However, when Ms. Green called the leasing company, she was advised by someone with the company that Mr. Webb and his two sons were not listed on the employee roster for Nu Way. Therefore, they were not covered by Nu Way's workers' compensation coverage. Employee leasing companies provide workers' compensation coverage for their clients, but coverage is provided only to employees that the client company specifically identifies. Because Mr. Rivera could not provide proof that Mr. Webb and his sons had workers' compensation coverage pursuant to Chapter 440, Ms. Green issued a Stop-Work Order for Specific Worksite Only ("Stop-Work Order") to Nu Way on April 15, 2008. The Stop-Work Order was posted at the work site and served on Mr. Rivera on April 16, 2008. On the day that Ms. Green served the Stop-Work Order on Mr. Rivera, she also served on him a Request for Production of Business Records for Penalty Assessment Calculation ("Request for Business Records"). The Request for Business Records requested that Mr. Rivera provide the business records of Nu Way to the Department so that it could determine the employer's payroll for the period of April 17, 2005, through April 16, 2008, for the calculation of the penalty provided in Subsection 440.107(7). In response to the Department's Request for Business Records Documents, Mr. Rivera provided Nu Way's business records, which included Nu Way's canceled checks. In auditing the business records, Ms. Green discovered that in addition to making payments made to Ted Webb, Inc., in 2006 and 2008, Nu Way had also made payments to two other companies that did not have valid workers' compensation coverage for their employees when they worked for Nu Way. According to its business records, Nu Way paid Santis Drywall and Construction (Santis) $36,890.00 between July 28 and August 11, 2006, and paid Hernandez Chico Drywall (Hernandez) $260,972.50 between March 17 and April 28, 2006. During the time period Nu Way made those payments to Santis and Hernandez, neither of those companies had valid workers' compensation coverage. After auditing Nu Way's business records, Ms. Green prepared a spreadsheet that included the payments made to uninsured subcontractors or companies during the relevant time period of April 17, 2005, through April 16, 2008. Ms. Green calculated the penalty by dividing the payroll for each uninsured subcontractor by 100 and then multiplied that number (the dividend) by the "approved manual rate" for drywall work for the year in question. Each product of 1/100 of the payroll and the approved manual yielded the "evaded premium" that Nu Way should have paid for each uninsured subcontractor in the years in question. The amount of the "evaded premiums" were then multiplied by 1.5 and then added together to determine the total penalty amount. Applying the formula prescribed in Subsection 440.107(7)(d), Ms. Green determined that the total penalty assessment against Nu Way was $76,215.95. On April 17, 2008, Mr. Rivera was served with the Amended Order of Penalty Assessment, which showed that the total penalty assessment against Nu Way was $76,215.95. That same day, Mr. Rivera, on behalf of Nu Way, entered into an agreement with the Department to pay ten percent of the penalty assessment in one lump sum payment and to make 60 interest-free payments for the balance. After Mr. Rivera signed the agreement, the Department issued an Order of Conditional Release from the Stop- Work Order ("Order of Conditional Release"). The Order of Conditional Release allowed Nu Way to resume work at the work site, subject to his complying with the terms of the agreement. When Ms. Green served the Amended Order of Penalty Assessment on Mr. Rivera, she discussed the penalty assessment with him and also allowed him to review the spreadsheet for accuracy. Mr. Rivera reviewed the spreadsheet, but did not find any errors. In preparing for this hearing, Ms. Green reviewed the spreadsheet and discovered that she had mistakenly included some payments made by Nu Way. By mistakenly including certain payments on the spreadsheet, the payroll amount used to calculate the penalty assessment was higher than it should have been. After discovering the mistake discussed in paragraph 20, Ms. Green prepared a new spreadsheet, which did not include the payments that had been mistakenly included in the initial spreadsheet. Ms. Green then recalculated the penalty assessment and properly determined the corrected penalty assessment to be $72,963.77. The Department prepared a Proposed Second Amended Order of Penalty Assessment showing that the correct penalty assessment for Nu Way is $72,963.77. As of the date of this proceeding, the Department had not served the Proposed Second Amended Order of Penalty Assessment on Mr. Rivera. However, at hearing, Mr. Rivera indicated that he did not object to this amendment as it reduced the penalty assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Petitioner, Nu Way Drywall, LLC, failed to secure the payment of workers' compensation for its employees in violation of Subsections 440.10(1)(a) and 440.38(1), Florida Statutes; and Assessing a penalty of $72,963.77 against Nu Way Drywall, LLC. DONE AND ENTERED this 28th day of October, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 28th day of October, 2008.
