The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2007.
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller license pursuant to provisions of Chapter 501, Part IV, Florida Statutes.
Findings Of Fact Petitioner is Gerovicap Pharmaceutical Corporation, Inc., a Nevada Corporation. Petitioner was incorporated in 1988. Petitioner has no offices in any state other than Nevada. Petitioner has been operating telemarketing services for a period of approximately 10 years. Respondent is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with provisions of Chapter 501, Part IV, Florida Statutes. The application submitted by Petitioner to Respondent for licensure as a commercial telephone seller listed three legal actions taken against Petitioner in the states of Florida, Oregon and Wisconsin. Petitioner entered into an Agreed Permanent Injunction and Final Judgment in the Circuit Court of the 11th Judicial Circuit for Dade County, Florida, on October 5, 1992. At that time, Petitioner accepted responsibility for running a mail advertisement promotion in Florida, advising potential customers to call a toll free number to place orders although Petitioner had not met the State of Florida's registration requirements. As a part of the settlement, Petitioner agreed to refrain from advertising and promoting sweepstakes in Florida in violation of state requirements and paid a total of $2,500 to cover a civil penalty, as well as attorney fees and costs. Petitioner entered into an Assurance of Voluntary Compliance in Circuit Court in Marion County, Oregon, on August 7, 1992. Petitioner agreed at that time to refrain from engaging in telephone solicitations in the state of Oregon and to pay $7,500 in investigative costs and attorney fees to the Oregon Department of Justice. On September 11, 1992, a Consent Judgment was entered in the Circuit Court for Waukesha County, Wisconsin. Based upon the stipulation of the parties, the judgment enjoined Petitioner from engaging in certain sweepstakes activities and ordered Petitioner to pay a civil forfeiture to the state of Wisconsin in the amount of $10,000 for various violations of that state's telemarketing regulations. In accordance with provisions of Section 501.612(1)(c), Florida Statutes, Respondent denied Petitioner's application for licensure in the State of Florida as a commercial telephone seller as a result of the Florida, Oregon and Wisconsin legal actions.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE AND ENTERED this 20th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-2. Accepted in substance. 3.-5. Rejected, relevance. 6.-8. Subordinate to HO findings on this point. Rejected, unnecessary. Accepted, but not verbatim. 11.-12. Rejected, argument, relevancy. Accepted. Rejected, weight of the evidence. Rejected, relevancy. Respondent's Proposed Findings 1.-7. Accepted in substance. Rejected, recitation of statute. Accepted. COPIES FURNISHED: Terry Fleischer, President Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160 Las Vegas, Nevada 89104 Jerome A. DePalma, Esquire 3201 South Maryland Parkway Suite 326 Las Vegas, Nevada 89109 John S. Koda, Esquire Office of General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether Respondent's intended decision to reject Petitioner's bid for University of Central Florida (UCF) Invitation to Bid No. 1030LCSAR (ITB) was arbitrary, unreasonable, or capricious.
Findings Of Fact UCF received a grant for $10,000,000.00 through the United States Department of Energy pursuant to the American Recovery and Reinvestment Act (ARRA) for, among other things, the construction and installation of turnkey 10kW PV systems with battery backup at schools located in Florida and designated as emergency shelters. Part of the grant money was to be used for administration and for education of Florida school children concerning renewable energy sources and energy efficiency. In order to procure the construction and installation of the PV systems, UCF issued the ITB. This was the second invitation to bid issued for PV systems. The first invitation to bid was issued during the summer of 2010, and all the bids received were over budget. The introduction in the ITB provides: As part of the Florida SunSmart Schools Emergency Shelter Program, the University of Central Florida intends to purchase at least ninety (90) turnkey installations of 10 kWdc (minimum) grid-tied photovoltaic (PV) systems with battery backup for specified Florida schools designated as EHPA (Enhanced Hurricane Protection Area) emergency shelters. This program provides for emergency electrical power for critical loads and provides ongoing educational programs for students. UCF/Florida Solar Energy Center will select the schools at which the PV systems will be installed. It is expected that at least one system will be installed in each County in the State of Florida. It is anticipated that multiple Bidders will be selected for participation in this program. One bidder will be selected for each Region, as defined in the Bid Document. A Bidder may be awarded more than one Region. All PV modules and systems must be certified by the Florida Solar Energy Center as specified in the bid document. The Florida Solar Energy Center (FSEC) is a statutory affiliate of UCF which "develop[s] and promulgate[s] standards for solar energy systems manufactured or sold in this state based on the best currently available information and shall consult with scientists, engineers, or persons in research centers who are engaged in the construction of, experimentation with, and research of solar energy systems to properly identify the most reliable designs and types of solar energy systems." § 377.705(4)(a), Fla. Stat. (2010).1/ All solar equipment that is sold or manufactured in the State of Florida must be certified by FSEC. § 377.705(4)(d). BlueChip was among the 19 bidders, which submitted bids in response to the ITB. On November 19, 2010, UCF posted the intent to award the contract for all regions to Vergona-Bowersox Electric, Incorporated (Vergona-Bowersox). By letter dated November 19, 2010, UCF notified BlueChip that its bid was rejected for a number of deficiencies. The Sunny Island inverter, which BlueChip included in the system it bid, is not made in America, and, therefore, does not comply with the Buy America provision of the ITB. Sunny Boy inverters, which BlueChip included in the system it bid, are undersized and do not meet the specifications of the ITB. The batteries used in BlueChip's bid do not meet the specifications of the ITB. FSEC did not receive a PV System Certification Application from BlueChip as required by the ITB. BlueChip does not hold a solar contractor license, nor does it hold an electrical contractor license as required by the ITB. By letter dated November 20, 2010, Dimitri Nikitin (Dr. Nikitin), president of BlueChip, wrote to UCF concerning the rejection of BlueChip's bid. The letter stated in part: On behalf of BlueChip Energy, LLC, which submitted a bid for the SunSmart Emergency Shelters project on November 8, I would like to express my concerns and ask for clarification regarding the Intent to Award notice for UCF Bid 1030lcsar posted on the UCF Purchasing website on November 19. First, we would like a written explanation why UCF rejected BlueChip Energy's bid. Our bid followed the requirements of the ITB to the letter, including compliance with the Buy America Act and ability to provide a payment and performance bond. * * * We would like to receive a clear explanation of why the only solar panel manufacturing, engineering and Installation Company in Florida with first hand PV module manufacturing experience and multi-Megawatt international install base was simply rejected as a bidder. To find out the reasons for your decision we will initiate a media investigation and congressional and Florida Energy Commission inquiry into the administration of UCF bid 1030LCSAR, and the possible conflict of interests of UCF employees and related parties. Your timely response to our questions and concerns is very much appreciated. The BlueChip letter dated November 20, 2010, did not state that it was intended to be a Notice of Protest. By letter dated November 24, 2010, BlueChip responded to each of the deficiencies listed in UCF's letter to BlueChip dated November 19, 2010. BlueChip's letter dated November 24, 2010, did not state that the letter was supposed to be a formal protest, but did state: Due to the spurious and baseless nature of the issues raised by your November 19 letter we insist UCF immediately reinstate and reconsider our bid. In the absence of that we will have no choice but to initiate a media investigation and congressional and Florida Energy Commission inquiry into the administration of ECF [sic] bid 1030LCSAR and the possible conflict of interest of UCF employees and related parties. Additionally, the November 24, 2010, letter did not include a protest bond. Appendix II, section 13, of the ITB provides: 13. Compliance with the Buy America Recovery Act Provisions (Section 1605 of Title XVI)-- By accepting funds under this Agreement [State of Florida Grant Assistance Pursuant to American Recovery and Reinvestment Act], the Grantee [UCF] agrees to comply with sections [sic] Section 1605 of the American Recovery and Reinvestment Act (ARRA)." The Grantee should review the provisions of the Act to ensure that expenditures made under this Agreement are in accordance with it. The Buy American provision in the American Recovery and Reinvestment Act of 2009 (section 1605 of title XVI), provides that, unless one of the three listed exceptions applies (nonavailability, unreasonable cost, and inconsistent with the public interest), and a waiver is granted, none of the funds appropriated or otherwise made available by the Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all the iron, steel, and manufactured goods are produced in the United States. On September 30, 2010, the United States Department of Energy granted a limited waiver of the Buy America provision of ARRA with respect to certain PV equipment. The waiver provided: This amended public interest determination waives the Buy American requirements of EERE-funded Recovery Act projects for the purchase of the following solar PV equipment: (1) Domestically-manufactured modules containing foreign-manufactured cells, (2) foreign-manufactured modules, when completely comprised of domestically- manufactured cells, and (3) any ancillary items and equipment (including but not limited to, charge controllers, combiners, and disconnect boxes, breakers, fuses, racks, lugs, wires, cables and all otherwise incidental equipment with the exception of inverters and batteries) when utilized in a solar installation involving a U.S. manufactured PV module or a module manufactured abroad but comprised exclusively of domestically-manufactured cells. (emphasis added). BlueChip's bid specifies inverters manufactured by SMA America Solar Technologies, Inc. (SMA), specifically SMA's Sunny Boy 4000US inverter and Sunny Island 5048US inverter. SMA's Sunny Island 5048US inverter is made in Germany, not the United States. The United States Office of Management and Budget (OMB) has issued interim final guidance, directing that the Buy American provision shall not be applied where the iron, steel, or manufactured goods used in the project are subject to an international agreement. The recipient of ARRA funds is to treat the goods subject to an international agreement the same as domestic goods and services. In Florida, only executive branch agencies may invoke the United States' international trade agreements. State of Florida universities may not participate in the international trade agreements. The total bid of BlueChip was $6,383,811.00. The value of the contract awarded to Vergona-Bowersox pursuant to the ITB was $6,720,896.70. Appendix 1, section 2(C)(8), of the ITB states: "The battery bank shall have a minimum usable capacity (at C/100) of 25kWh." BlueChip's bid specifies a battery bank capable of producing and delivering a maximum energy output of 24 volts to its specified Sunny Island 5048US inverter. In order to turn on and function, the Sunny Island 5048US inverter requires a minimum energy input of 41 volts from the battery bank. The 24 volts produced by the battery bank specified by BlueChip is insufficient to turn on the inverter. Therefore, the PV system bid by BlueChip would not be functional and would not meet the minimum usable capacity required by the ITB, because the inverter could not be activated by the battery bank. Appendix 1, section 2(C)(8), of the ITB provides the following requirements: PV systems must be capable of parallel operation with the utility supplied electrical service to the facility. The entire PV system must also be capable of stand-alone operation, providing backup power to a critical load panel when the utility supplied electrical service is unavailable. Systems will be grid- interactive, providing power to a collection of pre-determined critical loads. BlueChip's electrical schematic is non-conforming to the ITB, because it does not properly allow for the required operation with the utility supplied electrical service to the facility and is not capable of a stand-alone operation, providing backup power to a critical load panel when the utility supplied electrical service is unavailable. BlueChip's bid specifies a PV array capable of producing and delivering a maximum energy output of approximately 90 volts to its specified Sunny Boy 4000US inverter. In order to turn on and function, the Sunny Boy 4000US inverter requires a minimum energy input of 295 volts from the PV array. Therefore, the system bid by BlueChip cannot turn on the Sunny Boy 4000US inverter included in BlueChips's system, which makes the system nonfunctional. BlueChip's bid contains a schematic showing a Sunny Boy 4000US inverter with two DC inputs and two AC outputs. Sunny Boy 4000US inverters have only one DC input connection and one AC output connection. Based on the schematic submitted by BlueChip, the system is nonfunctional. The ITB provides that UCF may waive "any minor irregularity." BlueChip contends that any technical issues with the system bid could be corrected by FSEC during the certification process after the bids were opened and the intended award was announced. Appendix 1, section 1(C)(1), of the ITB provides: Bidders will serve as the prime contractor and must be licensed to install photovoltaic systems in the State of Florida. Bidder must hold a valid license as a certified solar contractor or electrical contractor, per Chapter 489, Florida Statutes. General Contractors may not serve as a prime contractor for the installation of a photovoltaic system due to the limitations provided in Section 489.113(3), Florida Statutes. Bidders may include subcontractors as deemed necessary, but subcontractors must be identified in the bid response, with a description of the work to be performed by each subcontractor. A successful Bidder will be solely responsible for fulfilling the terms of award. BlueChip submitted the bid and identified itself as the prime contractor in its bid. In its bid, BlueChip identified Advanced Solar Photonics and Complete Electrical Contractors as wholly-owned subsidiaries of BlueChip. BlueChip purchased Complete Electric Contractors, Inc., and the name was changed to Complete Electric Contractors, LLC. On January 5, 2010, Complete Electric Contractors, LLC, registered to do business under the fictitious name of BlueChip Energy. No evidence was presented at the final hearing that BlueChip was a certified solar contractor or that BlueChip was registered or certified pursuant to section 489.521, Florida Statutes. BlueChip contends that BlueChip meets the requirement as an electrical contractor, because Complete Electrical Contractors, Inc., was registered as a business performing electrical contracting with Andrew White (Mr. White) as the qualifying agent and is a wholly-owned subsidiary of BlueChip. Complete Electrical Contractors, LLC, is the wholly-owned subsidiary of BlueChip and is a separate legal entity from BlueChip. The bid was not submitted by Complete Electrical Contractors, LLC, or by Complete Electrical Contractors, Inc. Additionally, Mr. White is the qualifying agent for Complete Electrical Contractors, Inc., not Complete Electrical Contractors, LLC. BlueChip did not list Complete Electrical Contractors, LLC, as a subcontractor in its bid. Appendix 1, section 1(D), of the ITB provides that, if a bidder chooses not to use a PV system that is not already certified by FSEC, the bidder is responsible for submitting an application for system certification. There is a special application process in FSEC for applications that are being made as part of a bid solicitation process. The applications are submitted, but the processing fee is not required at the time of the submittal of the application, and only the applications for bidders selected for a contract will be certified. The directions for submittal of the applications for certification are contained in Appendix 1, section 1(4), of the ITB, which provides: IMPORTANT: The Florida Solar Energy Center has established a modified application process for certifying PV systems for this program only. The following process should be followed carefully to qualify for this offer. On or before the deadline date of the ITB, Bidder must complete and electronically submit (see ii below) the Photovoltaic System Certification--SunSmart E-Shelter Program Application form available at: http://www.fsec.ucf.edu/en/education/ sunsmart/e-shelters/documents/ EShelterApplication.pdf. Applications submitted under previous solicitations will not be considered under this program. Only certification applications submitted through the current bid process will be considered. Only fully completed applications will be accepted for consideration under this program. The application must include all required documentation to be considered complete. All materials must be submitted electronically to FSEC in a single email. FSEC will not accept partial submissions. All email attachments must be in PDF format. All certification applications must be sent to pvshelter@fsec.ucf.edu. A complete electrical schematic that includes the following information is required as part of the system certification package. (This list is provided for guidance and assistance only and is not the only information required in the certification application.) Modules labeled and shown in correct array configuration (source circuits) Size, type, and location of all conductors (+dc, -dc, L1, L2, L3, N, G, etc.) in the system Complete circuit paths shown Size, current rating, voltage rating, and location of all over-current protection devices Inverter/Charger/Controller equipment correctly identified Data acquisition system (DAS) [monitoring equipment] identified Battery wiring and cables labeled and shown in correct bank configuration Complete details of the system grounding in compliance with NEC 690 V. Grounding Point of interconnection specified and in compliance with NEC 690.64(B)(7) Ratings and locations of all disconnects Incomplete applications will be rejected and the applicant's system and bid may be ineligible for an award under this program. The applicant will be so notified but application materials will not be returned to the applicant. The system bid by BlueChip had not been certified by FSEC. BlueChip was required to submit an application to FSEC as part of the bid process. BlueChip had submitted applications to FSEC as part of the previous solicitation for PV systems for emergency systems, which had been cancelled in October 2010. At the final hearing, Dr. Nikitin testified that he had submitted other applications for the ITB; however, the only receipt that he could produce was for an email delivery dated August 23, 2010, which was before the ITB was issued. The totality of the evidence does not establish that BlueChip sent an application by email to FSEC for the ITB. BlueChip did include with its bid two applications submitted in response to the previous invitation to bid. One application was dated July 28, 2010, and one was dated August 19, 2010. Because BlueChip submitted no application to FSEC for the ITB by email, FSEC evaluated the technical aspect of BlueChip's bid based on the application submitted with the bid. BlueChip asserted in its letters to UCF, dated November 20, 2010, and November 24, 2010, that there had been a conflict of interest concerning a member of the Policy Advisory Board of FSEC and Vergona-Bowersox. However, no evidence was presented to support this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that BlueChip failed to submit a notice of protest in accordance with UCF Regulation 7.130; finding that the rejection of BlueChip's bid is not arbitrary, unreasonable, or capricious; and rejecting BlueChip's bid. DONE AND ENTERED this 8th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 8th day of April, 2011.
Findings Of Fact State outdoor advertising permits numbered 108 60-10 and 10861-10 were issued in February of 1979, and are now held by Headrick Outdoor Advertising, Inc. These permits authorize a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida. In July of 1985, Lamar Advertising Company applied for state outdoor advertising permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida. The location proposed by Lamar in its application is in conflict with the location where Headrick holds permits, in that the two sites are less than 1,000 feet apart. The land where the Headrick signs had been located, and the site where the Headrick permits authorize a sign, has been graded and paved, and is being used as a shopping center. In the course of the construction of this shopping center, the Headrick signs were removed, and Headrick no longer has a lease for its permitted site or permission of the property owner to locate a sign there. Lamar has a lease to the site where it applied for permits. This lease is from the owner of the land, and it grants Lamar permission to locate a sign at the location sought to be permitted, through February, 1992.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the state sign permits numbered 10860-10 and 10861-10 held by Headrick Outdoor Advertising, Inc., authorizing a sign on the south side of U.S. 90A, approximately 300 feet west of SR 95A, in Escambia County, Florida be revoked. And it is further RECOMMENDED that the application of Lamar Advertising Company for permits to erect a sign facing east and west on the south side of U.S. 90A, approximately 400 feet east of U.S. 29, in Escambia County, Florida, be granted. THIS Recommended Order entered on this 15th day of January, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 15th day of January, 1987. COPIES FURNISHED: Robert P. Gaines, Esquire P. O. Box 12950 Pensacola, Florida 32576 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Mr. Jim Baughman Vice President Headrick Outdoor Advertising, Inc. 404 Jenks Avenue, Suite "B" Panama City, Florida 32401 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064
The Issue The parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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)
Findings Of Fact The pertinent provisions of Exhibit 4 establish that the Lighthouse Point Fire Department is a volunteer organization which may consist of a Chief and as many subordinate volunteer firemen and employees as may be necessary, all appointed in conformity with rules and regulations of the City of Lighthouse Point. The Chief who is appointed by the Mayor, subject to City Commission confirmation, is also the fire marshal and has executive supervision and control of all firemen and other officers and employees of the department. All officers and employees of the fire department shall be employed without compensation until the city commission deems it appropriate to compensate them. The Fire Department presently consists of a Chief, one Fire Captain, three Lieutenants, six Firefighters and six Driver-Engineers. The manning of the fire station is accomplished in three shifts, each consisting of one Lieutenant, two Firefighters, and two Driver-Engineers. After each shift of 24 hours, the shift personnel are off-duty for 48 hours. All of the personnel are full-time paid personnel. The Captain also is paid fees for reporting to fire calls and for attending training drills. He receives a mileage allowance for using his personal vehicle for official Fire Department business, such as reporting to the scene of a fire or other emergency, and a cleaning allowance for maintenance of uniforms. No other full-time personnel, except the Chief, receive supplemental payments. He is under the same sick leave and vacation criteria, and eight hour work day, as the Chief. Sick leave and vacation benefits for other personnel are determined in a different manner. If the Captain is on holiday, he remains subject to call, whereas when the other personnel are on duty on holidays, they receive another holiday to compensate therefor. The Captain is presently receiving state instruction to become a certified instructor. He assumes command of the department in the absence of the Chief. The Lieutenants are under his general supervision. Either the Chief or the Captain is present at all fires except those of a minor nature. Each Lieutenant, as above-mentioned is in immediate charge of a shift and supervises shift personnel. They are interchangeable with the Captain as far as capability to assume command at a fire when the Chief or the Captain is not present. The Chief holds infrequent, unscheduled staff meetings at which the Captain and Lieutenants normally are present to discuss such matters as assignment of shifts, grievances of subordinate personnel and other routine personnel matters. The budget for the department is prepared by the Chief, with input as to capital improvements submitted by the Captain and recommendations also by the Lieutenants as to required equipment. As to personnel matters, the Chief has no authority to hire, fire, or promote personnel but must make recommendations, through the Assistant City Administrator to the Mayor. Disciplinary matters, such as suspension, are handled similarly, although the Captain and Lieutenants have authority to send an intoxicated or incapacitated member home, normally after consultation with the Chief.
