Findings Of Fact Respondent is a certified building contractor having been issued license No. CE C014020. Be was so licensed and was the qualifier for ARC Construction, Inc. at all times material to this proceeding. On July 25, 1980, Respondent, on behalf of ARC Construction, Inc., contracted with Mr. and Mrs. Richard Doyle to remodel a residence in St. Petersburg. The contract price was $43,180, plus extras of $1,525. Respondent was paid $1,500 initially and received draw payments of $4,318 on August 11, 1980, $8,636 on August 19, 1980, and $10,795 on September 3, 1980. These payments totaled $25,249, or about 58 percent of the basic contract amount and 56 percent of the contract price with add-ons. Respondent was obligated to pay suppliers and acknowledged this responsibility to the complainant, Mr. Richard Doyle, but advised him that he was having cash flow difficulties. Respondent's checks to Scotty's, dated August 10, 1980, for $2,518.28, and August 22, 1980, for $738.99, were dishonored by the bank. His check for approximately $5,000 to Florida Forest Products was likewise returned. Respondent failed to settle these accounts and the complainant was eventually obliged to do so in order to remove the liens on his property. Respondent ceased work on the project in mid-October, 1980, and was terminated by the complainant in January, 1981. At the time Respondent ceased work the project was 50 percent to 80 percent complete.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 29th day of April, 1983, 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 29th day of April, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James H. Thompson, Esquire 620 Madison Street Suite 2-C Tampa, Florida 33602 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to this proceeding, Respondent was a certified general contractor and the holder of license number CG C050853 issued by the Florida Construction Industry Licensing Board. At all times pertinent to this proceeding, Respondent was the licensed qualifying agent for Reliable Remodelers, a division of Action Bay Marine Company, Inc., and as such qualifying agent was responsible for all its contracting activities. On March 9, 1993, Joel Broder while representing himself to be vice president of Reliable Remodelers, executed a contract with Louise Rodney and Astrid Lamand wherein Reliable Remodelers agreed to perform certain roofing and carpet work at the residence of Yves and Louise Rodney at 35 N.W. 115 Street, Miami, Florida. The reason Astrid Lamand signed this contract was not established. The work to be done on the Rodney residence was in repair of damages caused by Hurricane Andrew. The costs of these repairs were to be paid by insurance proceeds. The price for this work to be performed by Reliable Remodelers, including materials, was $10,650.00. According to the terms of the contract, $200 was due as a down payment on or about March 9, 1993, and the remainder was due on completion of the work. Ms. Rodney gave Mr. Broder two checks as deposits toward the work to be done. The first was a check in the amount of $200.00 on March 9, 1993, the date the contract was signed. Mr. Broder told Ms. Rodney on March 9, 1993, to call him when her insurance settlement came in so he could come back for an additional check and thereafter begin work. On April 11, 1993, Ms. Rodney advised Mr. Broder by telephone that she had received her insurance settlement. On April 12, 1993, Ms. Rodney paid to Mr. Broder the second check, which was in the amount of $3,000.00. On April 13, 1993, Mr. Broder told the Rodneys that work would begin on the house in three days. Ms. Rodney made both of these checks payable to Joel Broder personally because Mr. Broder instructed her to do so. Mr. Broder assured her that it was acceptable to make these two deposit checks to him personally because of his position as a vice-president of Reliable Remodelers. Mr. Broder indicated that the final check would be made payable to Reliable Remodelers. Reliable Remodelers never began work on the subject contract. No building permit was ever pulled for the project described in the subject contract. A local building department building permit would have been required for beginning work on the roofing portion of the project described in the subject contract. The Rodneys never received a refund of the $3,200.00 paid to Joel Broder. Louise Rodney was justified in believing Mr. Broder was an authorized representative of Reliable Remodelers. Mr. Broder presented a business card and a contract with Reliable Remodelers' name and address and Respondent's general contractor's license number printed on the contract. Mr. Broder was employed by Reliable Remodelers and had the authority to negotiate contracts on its behalf with the public. Richard Levin, a corporate officer of Reliable Remodelers at the time of the Rodney contract, knew that Mr. Broder was representing Reliable Remodelers in a contract sales capacity at the time of the Rodney contract. Between April 13, 1993, and the end of June 1993 Louise Rodney and her husband, Yves Rodney, repeatedly called Mr. Broder at Reliable Remodelers, but were never able to get Mr. Broder or Reliable Remodelers to start work. When Mr. or Ms. Rodney called the number provided by Mr. Broder, he or she would sometimes get Mr. Broder, sometimes get an answering machine, and sometimes get a lady who answered the phone "Reliable Remodelers." Mr. Broder repeatedly made excuses to the Rodneys about why the job did not begin. Sometime around the end of June or early July, Ms. Rodney called Mr. Broder and demanded a return of her money. Mr. Broder told Ms. Rodney that he could not refund the money until the end of July because he never wrote checks until the middle of the month. Mr. Broder did promise to return the money to Louise Rodney by the end of July 1993. In July 1993, Ms. Rodney filed a complaint with the Metro Dade Building and Zoning Department against Reliable Remodelers and Joel Broder. On July 23, 1993, Ms. Rodney filed a complaint with the Florida Department of Business and Professional Regulation against Joel Broder and Reliable Remodelers. In late August or early September 1993, Mr. Broder contacted Ms. Rodney by telephone about the refund. This telephone contact was after a representative from the Florida Department of Business and Professional Regulation had contacted Mr. Broder about Ms. Rodney's complaint. In that telephone conversation Mr. Broder discussed the possibility of refunding to Ms. Rodney her deposit, but he insisted on keeping $200.00 of the $3,200.00. On or about September 10, 1993, the Respondent executed and sent Louise Rodney a letter on Reliable Remodelers letterhead. A copy of the letter was sent to the Department of Professional Regulation. This letter provided, in part, as follows: You have expressed a desire to be released from our contract dated March 9, 1993, for work in the amount of $10,650.00. We want to make it clear that we have been pro- hibited from fulfilling the terms of our contract by unreasonable and impractical demands by you, the Homeowners, as to how the work should proceed, i.e., demanding that roof tiles be loaded on the roof before it is hot mopped. 1/ Although your request at this time is not in accordance with the cancellation terms of our contract, we feel it would be in the best interest of all parties to grant your request. We do however, require written notification of your intent to cancel. Notarized signatures on this document will suffice. Upon receipt of this executed document we will initiate refund procedures. Your deposit of $3,200.00 will be returned to you within thirty (30) days. This allows us time to recoup binders issued for your job. Of course we have incurred some expenses in the set up for performing our contractual obligation. These, in excess of $400.00, we will overlook. Please endorse and have notarized the statement below and return this document to us promptly. The letter of September 10, 1993, contained a release clause that Ms. Rodney and Mr. Astride were to sign and have notarized before any refund was to be forthcoming. Sometime just after September 13, 1994, in the evening, three men came to the Rodney home with a copy of the letter signed by the Respondent on September 10, 1993. One of these three men was Jules Lindsor, a corporate officer of Reliable Remodelers. Mr. Lindsor falsely identified himself to the Rodneys as being Gary S. Sachs. These three men were trying to procure the Rodneys' signature on a release from the subject contract. The Rodneys refused to sign the release because there was no refund present and because they wanted to consult a lawyer before signing. Sometime after September 13, 1993, the Rodneys executed a release and mailed it to Reliable Remodelers. At the time of entering the contract with Reliable Remodelers the Rodney home was leaking from damage caused by Hurricane Andrew. The leaks were finally repaired between April and June 1994 by persons other than Reliable Remodelers. Respondent and Reliable Remodelers ratified the contract that Mr. Broder executed on its behalf. There was no evidence that Respondent or Reliable Remodelers ever repudiated the contract as a Reliable Remodelers contract, that there was any effort to perform the contract, or that there was a tender of a refund of the $3,200.00 paid by Louise Rodney. There was no evidence that Reliable Remodelers had any justifiable excuse for its failure to perform any work pursuant to its contract with Ms. Rodney and Mr. Astride.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $3,500.00 to the Florida Construction Industry Licensing Board, pay restitution to Louise Rodney in the amount of $3,200, and pay costs incurred in the prosecution of this proceeding in the amount to be determined by the Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of November 1994. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November 1994.
Findings Of Fact Petitioner Cobo Company, Inc., is a mechanical contractor located in Miami, Florida, whose qualifying agent, Jose Cobo, is certified in that capacity pursuant to Chapter 489, Florida Statutes. By letter of August 18, 1980, Respondent Department of General Services confirmed Petitioner's annual prequalification as a potential bidder for building construction contracts pursuant to Section 255.29, Florida Statutes, for the "type or class as defined in your license." (Testimony of Cobo, Exhibit 1) At an undisclosed date, Respondent published an advertisement for bids for Project No. DGS-7969-C, "Major Repairs-Chiller Replacement, Graham Building, Miami, Florida." The advertisement required all bidders to submit prequalification data of their eligibility to submit proposals if not previously qualified for the current fiscal year. The advertisement and invitation for bids stated that bids must be submitted in full in accordance with the requirements of the drawings, specifications, bidding conditions, and contractual conditions, and that sealed bids would be opened on September 30, 1980. Section B-2 of the specifications required that the bidder present evidence that he was "authorized to perform the work required in these documents in accordance with the applicable provisions of Florida Statutes governing contractors." (Exhibit 4) Respondent's Instructions to Bidders further required that bidders submit evidence of ability to provide necessary performance and labor and material payment bonds, and that bids should be accompanied by a bid guarantee of not less than 5 percent of the amount of the bid. The instructions also required bidders to submit a list of previous contracts involving similar work which had been satisfactorily completed, and to list those qualified subcontractors which the bidder intended to be employed on the contract. They further required a bidder to indicate bid prices on the proposal form for the entire work and for any alternates on which he bids. The instructions stated that if the base bid was within the amount of funds available to finance the contract and the owner (Respondent) wished to accept alternate additive bids, contract award would be made to that responsible bidder submitting the low combined bid, consisting of the base bid plus alternate additive bids. Section B-24 of the contract document reads in part as follows: B-24 CONTRACT AWARD The Contract will be awarded by the Executive Direction, Department of General Services, as soon as possible, to the lowest qualified bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality on bids received when such waiver is in the interest of the Owner. The Agreement will only be entered into with reasonable contractors, found to be satisfactory by the Owner, qualified by experience and in a financial position to do the work specified. Section 01010 of the specifications provides in part as follows: SECTION 01010 - SUMMARY OF WORK 1. GENERAL DESCRIPTION. The project in general consists of the construction of the contract entitled Major Repairs-Chiller Replacement, Graham building, Miami, Florida, State Project NO. DGS-7069-C. A general description of the project and its scope include the following: Replacement of chiller for central air conditioning system. Install new cooling towers and pump. The contract drawings and specifications provided for the removal of a portion of an interior wall, and removal of an exterior wall window and masonry work below the window to provide access for removal of the existing chiller and its replacement with new equipment. In addition, the contract included electrical work incident to the installation of the chiller, removal of an existing hand rail for clear access to the equipment and later replacement, installation of pitch pans for pipes and other openings on the roof, and the erection and installation of structural steel cooling towers. The specifications call for painting, plaster work, replacement of flooring and ceiling, and installation of a window wall panel, as required in restoring the demolished area. They further called for a replacement demountable interior wall partition to provide future access to the air conditioning equipment, as an alternate portion of the project. Section 01021 of the specifications described the bid items as a Base bid, Additive Alternate No. 1 for using higher efficiency chiller, and Additive Alternate No. 2 for installation of the demountable partition. However, the specifications had been altered prior to the issuance of the bid invitation to provide for the higher efficiency chiller as part of the base bid, but Section 01021 had not been changed accordingly. Respondent's proposal form for use by bidders, however, had provisions for entry of only a Base bid and Alternate No. 1 for the installation of the demountable partition. (Testimony of Karagianis, Exhibits 4-6) Petitioner submitted its bid for the project on September 30, 1980. Its base bid was $225,440. It also bid on the alternate for installation of demountable partitions in the sum of $1,170, and added to the bid form an alternate for the use of higher efficiency chiller in the amount of $1,150. Seven other bids were submitted on the proposal ranging from $239,300 by Sam L. Hamilton, Inc., to a high bid of $430,624. Hamilton's additive bid for the alternate partitions was in the amount of $1,950. Petitioner enclosed with its proposal the required contractor's qualification statement showing previous experience as a mechanical contractor, bid bond, and other required information. It listed L. Milton Construction, Inc., as a general construction subcontractor and Sparta Insulation as an insulation contractor. Although Petitioner intended that Lloyd N. Jones perform the electrical work on the project, he was not listed as a subcontractor because Petitioner did not know at that time whether he would be a subcontractor of Milton or of his own firm. Petitioner included the alternate bid for the higher efficiency chiller because it was required under Section 01021 of the specifications. Milton's bid to Petitioner for the construction work on the contract was in the sum of $7,000. (Testimony of Cobo, Exhibits 2-3) By letter of October 7, 1980, Respondent informed Petitioner that it intended to contract with Sam L. Hamilton, Inc., which had been determined the qualified low bidder meeting the requirements of the specifications. The letter advised the Petitioner that is bid was rejected because it was not a certified or registered general or building contractor as required by Section 489.105, Florida Statutes. Attached to the letter was a copy of a letter of William J. Roberts, attorney for the Florida Construction Industry Licensing Board, to Respondent, dated October 18, 1977, setting forth a legal opinion that a mechanical contractor could not be the prime contractor on a state contract in which the bulk of the work is mechanical in nature, but the remaining portion is to be subcontracted to a general contractor. Roberts testified at the hearing that he had drafted legislation which changed the definition of "contractor" previously found in subsection 478.102(1), and in his view, under such definition, a mechanical contractor would not be authorized to become a prime contractor is it were necessary for him to subcontract any non-mechanical work called for under the contract provisions which he was not qualified to perform. (Testimony of Roberts, Exhibit 7) Respondent's project director estimates that the chiller replacement project was approximately 90 to 93 percent mechanical in nature, and 7 to 10 percent requiring general construction and electrical work. It was his understanding of departmental policy that if any portion of a contract involved general construction work, only a general contractor would be eligible to receive the award and that, in this case, Petitioner could not therefore be accepted as a prime contractor. Respondent's Chief of the Bureau of Construction has instructed Bureau personnel not to award contracts to mechanical contractors which involve non-mechanical work unless the contractor is certified in the non-mechanical area for which the work is required. Several contracts awarded by Respondent to mechanical contractors in 1980 which involved non-mechanical work were "incorrect" awards, in the view of the Chief of the Bureau of Construction. (Testimony of Karagianis, Scaringe, Composite Exhibit 8) General contractors and mechanical contractors are required to be licensed under Chapter 489, Florida Statutes. Any person who desires to be certified statewide in a particular contracting area must establish his competency and qualifications by a combination of education and experience, plus the successful completion of an appropriate examination. The general contractor's examination and mechanical contractor's examination have similar portions relating to applicable federal and state laws and regulations in the contracting field. The remaining and major portion of the mechanical contractor's examination deals with subjects of that specialty such as air conditioning, refrigeration, heating, and the like. The general contractor's examination primarily covers matters relative to construction, such as site work, excavation, structural steel, masonry walls, piles, columns, and form work. (Testimony of Allen, Composite Exhibits 9-10) In the opinion of an expert in the field of architecture, there are no parts of the chiller replacement project which require the services of a general contractor. The demolition of the interior partition and the window wall properly may be accomplished by a mechanical contractor and installation of demountable partitions in lieu thereof can be obtained from speciality suppliers. Other aspects of the project, such as concrete pads, installation of cooling tower, pitch pans, and painting similarly are all considered to be incidental work to a project that is basically mechanical in nature. Certain large mechanical contractors customarily employ qualified individuals to perform specialty tasks such as painting and demolition work, but smaller contractors accomplish such portions of a job by subcontract. (Testimony of Coxen) A recent contract award was made by Dade County to a mechanical contractor for a project similar to the one here in controversy. In that case, the mechanical contractor had listed a general contractor as a subcontractor for the project. (Exhibit 11)
The Issue Whether Petitioner’s application for a certified building contractor’s license should be granted, and whether Respondent relied upon an unadopted rule in formulating its intended decision to deny Petitioner’s application, in violation of section 120.57(1)(e), Florida Statutes (2015).1/
Findings Of Fact Respondent, Construction Industry Licensing Board (Respondent or Board), is charged with administering chapter 489, Part I, Florida Statutes, relating to construction contracting, and issuing licenses to certified building contractors. Petitioner, Tony L. Phillips, applied to the Board for a certified building contractor’s license, pursuant to section 489.111, on March 3, 2015. Petitioner passed the required written examination and his application was scheduled for hearing before the Board on May 14, 2015. Building contractors are licensed to construct commercial buildings, and single-dwelling or multiple-dwelling residential buildings, not exceeding three stories in height. See § 489.105(3)(b), Fla. Stat. Section 489.111(2)(c)2. provides eligibility for licensure as a construction contractor. An applicant is eligible for licensure by examination if he or she has a total of at least four years of active experience as a worker who has learned the trade by serving an apprenticeship as a skilled worker who is able to command the rate of a mechanic in the particular trade or as a foreman who is in charge of a group of workers and usually is responsible to a superintendent or a contractor or his or her equivalent, provided, however, that at least 1 year of active experience shall be as a foreman. (emphasis added). Florida Administrative Code Rule 61G4-15.001(2)(a), provides the qualifications for certified building contractors, in pertinent part, as follows: In the case of applicants for certification in the general or building contractor categories, the phrases ‘active experience’ and ‘proven experience’ as used in Section 489.111(2)(c)1., 2., or 3., F.S., shall be defined to mean construction experience in four or more of the following areas: Foundation/Slabs in excess of twenty thousand (20,000) square feet. Masonry walls. Steel erection. Elevated slabs. Precast concrete structures. Column erection. Formwork for structural reinforced concrete. (emphasis added). In his application, Petitioner listed his experience as a foreman with Jacobs Engineering Group, Inc. (Jacobs), to meet the statutory and rule requirements for active experience in the trade. At all times relevant hereto, Jacobs was a construction engineering inspection consultant for the Florida Department of Transportation (FDOT). Jacobs performed the inspection of various design-build roadway projects undertaken by construction contractors on behalf of FDOT. Petitioner’s application included three specific projects to demonstrate Petitioner’s relevant experience: Wekiva Parkway, John Young Parkway Extension, and Baseline Road. The Wekiva Parkway project consisted of a four-lane highway, three category one bridges, a toll gantry, and equipment enclosure. The general contractor charged with construction of this project was the De Moya Group. Jacobs performed the construction engineering inspection role for FDOT. Jacobs’ role was quality control and inspection. Petitioner indicated in his application that he was the foreman “charged with overseeing the construction of the work on the bridges, roads and related structures.” Jacobs employed Petitioner as a foreman of Jacobs’ employees, who conducted inspections of construction work performed by the De Moya Group. Petitioner’s duties on the Wekiva project were to perform inspections. Petitioner did not perform construction duties, but rather inspected the construction performed to ensure compliance with the applicable FDOT and contractual requirements. While Petitioner’s inspection duties were vital to ensure the soundness of the facilities under construction, he did not perform construction work. The John Young Parkway project consisted of a flyover over State Road 441, including a large steel girder with integral pier box flyover bridge, sound walls, signalization, sidewalks, asphalt, and reinforced earth walls. The general contractor charged with construction of this project was Southland Construction. Jacobs performed the construction engineering inspection role for FDOT. Petitioner was project foreman for Jacobs on the John Young Parkway project. As such, Petitioner was responsible to ensure that the work was performed in accordance with the contract documents. Petitioner did not perform any construction work or supervise the construction workers employed by Southland Construction. As senior roadway inspector on John Young Parkway, Petitioner had the authority to question the work of the construction crew, and redirect work if it was not being performed per the contract documents or FDOT specifications. If necessary, Petitioner, through the chain of command at Jacobs, could stop work on the project in order to conform work to specifications. However, Petitioner did not perform any construction work on the project. The Baseline Road project consisted of small bridges, small animal crossings, noise walls, drainage structures and gravity walls, signalization, curb gutters, and sidewalks. The general contractor charged with construction of this project was C.W. Roberts Contracting. Jacobs performed the construction engineering inspection role for FDOT. On the Baseline Road project, Petitioner supervised the inspection of all animal crossing structures, as well as the relocation and installation of utilities, and the movement of traffic through the construction site. Petitioner admitted that all of the technical qualifications listed in his application were earned as a Jacobs’ employee performing the task of construction engineering inspection on these three projects. All of the experience Petitioner listed in his application was in the execution of projects performed on behalf of FDOT. None of the job descriptions which Petitioner listed in his work experience as road inspector, bridge inspector, utility coordination facilitator, environmental monitoring personnel, and administrator of maintenance of traffic contracts is considered “construction” by the Board. In fact, contracting work on roads, bridges, streets, and highways is exempt from regulation as construction contracting. See § 489.103(1), Fla. Stat. Thus, even the work performed by the FDOT contractors on those three projects was not “construction” subject to regulation by the Board. The single building or enclosed structure of any kind that Petitioner had any involvement with over the four years of work experience offered in his application was a one-story concrete enclosure to house toll-reading equipment. Petitioner did not supply any further information on this structure. It is clear from the record that Petitioner did not perform any of the construction work himself nor was he a foreman on any of the construction crews. All of the work that he performed concerned the inspection of work performed by construction contractors. Petitioner admitted that he has never built, or supervised the construction of, a single, two, or three-story, habitable, commercial, or residential building. Unadopted Rules Petitioner alleges that Respondent relied upon non- rule policy in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). Section 120.57(1)(e)1. prohibits agencies from basing agency action that determines the substantial interests of a party on an unadopted rule. The denial of Petitioner’s application for a building contractor’s license affects Petitioner’s substantial interests. A “rule” is “an agency statement of general applicability that implements, interprets, or prescribes law or policy.” § 120.52(16), Fla. Stat. Agencies are required to adopt each agency statement defined as a rule by rulemaking procedures set forth in section 120.54. See § 120.54(1)(a), Fla. Stat. Petitioner alleges Respondent maintains three statements which constitute rules, pursuant to section 120.52(16), but which have not been adopted as rules, pursuant to section 120.54, and relied on those statements in formulating its decision to deny Petitioner’s application, in violation of section 120.57(1)(e). First, Petitioner maintains the Board denied his application because, on the jobs he submitted to demonstrate his relative experience, he could not “hire or fire” contractors and did not control the “means and methods” of construction. Because these terms are not used in the controlling statute or rule, Petitioner argues that the Board relied upon statements of general applicability which have not been adopted as rules.2/ During the hearing on Petitioner’s application, two of the seven Board members, Mr. Boyette and Mr. Cathey, questioned Petitioner about whether he had control over the “means and methods” of construction on the projects he listed in his application. Both Board members concluded that, on the projects Petitioner listed as experience relevant to the building contractor’s license, he did not control the “means and methods” of construction. “Means and methods” of construction is a term of art in the construction industry referring to the plans for executing the work on a particular project. The term encompasses scheduling different aspects of a project and directing the work of a construction crew and, sometimes, subcontractors. A construction foreman has the ability to direct a construction crew and subcontractors. Thus, having control of the “means and methods” of construction is integral to the job of a construction foreman. At the hearing on Petitioner’s application, one of the members, Mr. Boyette, questioned whether Petitioner had authority to hire and fire C.W. Roberts, the prime contractor on the Baseline Road project. A construction foreman may have the authority to hire and fire members of a construction crew, depending on the size of the job. The record reflects that Petitioner’s application was denied because he did not meet the requirements for “active experience” in construction, as defined in the rule, not because he was not empowered to hire and fire members of the construction crew. Second, Petitioner contends that the Board refused to accept an affidavit certifying his construction experience, which is contrary to the rule requirements, thus applied an unadopted rule in reaching its decision to deny his application. Rule 61G4-15.001(1)(a) provides that “[a]ctive experience in the category in which the applicant seeks to qualify shall be verified by affidavits prepared or signed by . . . an architect or engineer . . . who is licensed in good standing . . . listing chronologically the active experience in the trade, including the name and address of employers and dates of employment (which may be corroborated by investigation by the Board). Petitioner did not submit an affidavit with his application. Respondent does not contend Petitioner’s application was denied for failure to include the affidavit with his application. At hearing, Petitioner introduced an affidavit from Anthony Caruso, Petitioner’s supervisor at Jacobs. In the affidavit, Mr. Caruso certified that Petitioner “has more than four years proven experience as a foreman” in the following areas of construction work: [f]oundation/slabs in excess of twenty thousand (20,000) square feet, [s]teel erection, [e]levated slabs, [p]recast concrete structures, [c]olumn erection, and [f]ormwork for structural reinforced concrete (six of the seven criteria listed in rule 61G4-15.001). At hearing, Respondent’s expert, Paul Del Vecchio, a certified general contractor and former 12-year member of the Board, testified that the Board does not rely on affidavits to verify an applicant’s active experience. Mr. Del Vecchio related that the Board had been advised it had no statutory authority to require an affidavit and had discontinued accepting affidavits pursuant to the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order denying Petitioner’s application. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 10th day of March, 2016.
