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BUILT RIGHT CONSTRUCTION INC. vs PALM BEACH COUNTY SCHOOL BOARD, 11-005316 (2011)

Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Oct. 14, 2011 Number: 11-005316 Latest Update: Apr. 03, 2014

The Issue Whether, in accordance with Section 4.1(l)(f), State Requirements for Education Facilities (SREF), Respondent has grounds to ratify the Superintendent's determination that Petitioner is delinquent, so as to be disqualified for a period of one year from bidding on any construction contracts with Respondent that require certification.

Recommendation It is RECOMMENDED that the School Board enter a final order ratifying Count II of the Superintendent's Letter for five of the Six Schools (except Independence Middle School), ratifying Count III of the Superintendent's Letter, declining to ratify Counts I and IV of the Superintendent's Letter, and determining that Petitioner is delinquent for one year from the date of final order. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of December, 2013.

Florida Laws (4) 120.569, 120.57, 713.001, 713.01

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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD vs VIC GEORGE, 07-003349PL (2007)

Division of Administrative Hearings, Florida Filed:Miami, Florida Jul. 19, 2007 Number: 07-003349PL Latest Update: Jul. 05, 2024

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DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs PASQUALE ALMERICO, JR., D.D.S., 13-003286PL (2013)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Aug. 29, 2013 Number: 13-003286PL Latest Update: Sep. 11, 2014

The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint and, if so, the penalty that should be imposed.

Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed dentists such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Dentistry has found probable cause exists to suspect that the licensee has committed one or more disciplinable offenses. Respondent Pasquale Almerico, Jr., a graduate of the University of Pennsylvania School of Dental Medicine, has been licensed to practice dentistry in the State of Florida since 1984. Respondent's address of record is 704 North Alexander Street, Plant City, Florida. The Events On February 16, 2010, patient P.D., a 60-year-old female, presented to Respondent's dental office to discuss the replacement of a partial, removable denture that was causing discomfort. The partial denture, which another dentist installed some 15 years earlier to fill the gaps created by lost teeth in the lower-left portion of P.D.'s mouth——specifically, teeth numbers 18 and 19——was secured by a metal “C-clasp” attached to tooth number 20. Noticing immediately that the partial denture was ill fitting, Respondent recommended its replacement with a three- unit cantilever bridge at teeth numbers 19, 20, and 21. As explained during the final hearing, a cantilever is a type of fixed bridge that attaches to adjacent teeth on one end only. Thus, in this instance, abutment crowns on teeth numbers 20 and 21 would connect to a pontic (an artificial tooth) extending into the gap formerly occupied by tooth number 19. P.D. consented to the suggested treatment during the February 16 office visit, at which point Respondent removed the existing crown on tooth number 20, took a radiograph of the relevant area, and performed a thorough clinical examination of teeth numbers 20 and 21. Although Respondent observed some abrasion2/ on the distal surface of tooth number 20 where the C- clasp of the partial denture had been attached, the teeth otherwise appeared healthy——i.e., neither Respondent's direct visualization of the teeth nor his review of the radiograph suggested the presence of decay. At the conclusion of the February 16 visit, Respondent prepared teeth numbers 20 and 21 (a process that involves the use of a drill to remove enough enamel from the teeth so that the bridge will fit properly), took a final impression, and provided P.D. with a temporary bridge. P.D. returned to Respondent's office on March 3, 2010, at which time Respondent removed the temporary bridge and performed a “try-in” with the metal framework of the new bridge. During this process, Respondent directly visualized tooth number 20 and, as was the case during the previous visits, observed no signs of decay.3/ However, Respondent noticed that the metal framework would not seat correctly, which prompted him to take a new impression. Thereafter, on March 10, 2010, Respondent removed P.D.'s temporary bridge and conducted a try-in with the new metal framework——affording him a third opportunity to visualize tooth number 20. Once again, Respondent observed no indications of decay or any other issues. Of the opinion that the second impression had yielded a satisfactory framework, Respondent scheduled P.D. to return at a later date for the seating of her new bridge. Upon P.D.'s return on March 24, 2010, Respondent removed the temporary bridge and directly visualized tooth number 20 for a fourth time; no decay was observed. Respondent then proceeded to seat the cantilever bridge, which fit well and caused the patient no discomfort. At that point, it was anticipated that P.D. would follow up with Respondent in six months for routine cleaning and maintenance. As it happens, though, P.D. returned to Respondent's office a mere five days later, on March 29, 2010. During the visit, P.D. reported that her new bridge was “hurting” and that she was feeling “pressure constantly.” Notably, however, P.D. denied that the pain was of such intensity that it kept her awake at nighttime, which militated against a conclusion that the patient was suffering from an abscess.4/ In response to P.D.'s complaints, Respondent adjusted and flossed the bridge. That an adjustment was made so soon after the bridge's seating, although less than optimal, was by no means unusual; indeed, Petitioner's expert witness concedes that neither the timing of the March 29 visit nor P.D.'s report of pressure necessitated a clinical examination or the taking of an x-ray on that date.5/ Nine days later, on April 7, 2014, P.D. appeared at Respondent's office once again, this time with the complaint that she was biting her cheek. During the clinical examination that ensued, Respondent surmised that the cheek biting, if any, had been caused by a different, aging bridge located in the upper left of P.D.'s mouth (at teeth numbers 11 through 14).6/ Respondent did, however, notice that the new bridge was hitting high, which prompted him to make a minimal adjustment using a rubber wheel. Although Petitioner contends that Respondent should have taken an x-ray during the April 7 visit to rule out an abscess, the evidence demonstrates that P.D. exhibited none of the clinical symptoms sometimes attendant to such a condition. Save for her report of “cheek biting,” P.D. presented with no complaint of severe——or, for that matter, any——pain,7/ nor did she exhibit any discomfort during the adjustment. Moreover, P.D. did not react adversely when Respondent used the end of his examination mirror to perform percussion on the bridge. Finally, Respondent detected no inflammation below the gum line. Subsequently, on April 13, 2010, P.D. returned to Respondent's office and reported that the new bridge was “catching her lip.” P.D. complained of no other pain relating to the new bridge, and Respondent's clinical examination yielded no indications (e.g., thermal sensitivity or sensitivity to percussion) that the patient was suffering from an abscess.8/ Owing to the dearth of symptoms suggestive of endodontic involvement, Respondent determined that an x-ray was unnecessary. However, Respondent made a minimal adjustment to the new bridge and sent P.D. on her way, with the expectation that the patient would return in six months for a follow-up visit. Although P.D. would return a mere six days later, on April 19, 2010, her complaints at that time related only to the aging bridgework at teeth numbers 11 through 14 (seated years earlier by another dentist), which Respondent discovered was “hitting hard.” Significantly, P.D. raised no issues concerning her new bridge at teeth numbers 19 through 21, and Respondent's examination revealed, yet again, no signs of endodontic involvement.9/ As such, Respondent did nothing more than make a slight adjustment to the bridge at teeth numbers 11 through 14.10/ Soon thereafter, P.D. scheduled another appointment and returned to Respondent's office on April 27. On this occasion, as with the previous visit, P.D. voiced no complaints concerning her new bridge, and Respondent observed no signs of inflammation, cheek biting, or any problems. This time, however, P.D. accused Respondent of “breaking” the bridgework at teeth numbers 11 through 14 and suggested that he provide a replacement free of charge. Respondent was understandably dismayed by P.D.'s demand, for he had never caused any damage to the 11 through 14 bridge; moreover, the bridge in question, although in poor condition, was by no means “broken.” At that point, Respondent terminated his relationship with P.D. Expert Testimony As noted previously, Petitioner advances two unrelated theories in support of its charge that Respondent violated the minimum standard of care. First, Petitioner contends that, prior to the seating of the new bridge on March 24, 2010, Respondent failed to treat decay supposedly present on the distal surface (i.e., the part of the tooth that faces the back of the mouth) of tooth number 20. In light of Respondent's concession that the standard of care requires the removal of existing decay prior to the seating of a bridge, Petitioner's first theory boils down to a factual dispute over whether decay was present on tooth number 20 on March 24, 2010. In an attempt to establish the presence of decay, Petitioner adduced testimony from Dr. Solomon Brotman, an eminently qualified dentist with more than 30 years of practical experience. Although Dr. Brotman concedes that he never clinically examined P.D., he nevertheless maintains that the presence of “substantial” decay on tooth number 20 is demonstrated by x-rays in Respondent's possession when the bridge was seated.11/ Dr. Brotman further opines that the x-rays of tooth number 20 are not reasonably susceptible to any other interpretation (e.g., abrasion or erosion), and that Respondent may have missed the decay because it is “sometimes” tooth colored. Finally, Dr. Brotman asseverates that, in cases involving interproximal decay, it is appropriate to make a diagnosis based solely on an x-ray. Respondent counters with testimony from Dr. Robert Fish, an expert with an equally impressive background, who credibly asserts that the x-rays in question are not suggestive of decay but, rather, abrasion12/ that likely resulted from the ill-fitting “C-clasp” of the removable partial denture——an opinion that jibes with Respondent's persuasive testimony that he observed abrasion on the distal surface of tooth number 20. Dr. Fish further contends that, had decay been present, it is highly unlikely that Respondent would have missed it given the number of times he directly visualized tooth number 20 prior to the seating.13/ The short of it is that decay quite possibly existed on the distal surface of tooth number 20 at the time Respondent seated the bridge. However, Respondent's persuasive account of his clinical observations of the tooth, buttressed by the credible testimony of Dr. Fish, leaves the undersigned with substantial doubt on this point. As such, Petitioner has failed to sustain its burden of proof. The undersigned now turns to Petitioner's alternative theory, namely, that “continuing, localized dental pain” required Respondent to rule out the possibility of an abscess at the root of tooth number 20. In relevant part, the Amended Complaint alleges: Continuing, localized dental pain is a symptom of endodontic involvement. Minimum standards of diagnosis and treatment in the practice of dentistry require that when a patient complains of continued dental pain, a dentist take radiographic images of the symptomatic area to determine whether there is endodontic involvement. . . . Patient appointed with Respondent for relief of pain five times [after the bridge was seated] . . . . Respondent Dr. Almerico did not take radiographs of that area or otherwise rule out endodontic involvement during those visits. By failing to take radiographic images to determine possible endodontic involvement at bridge #19-21, Respondent failed to meet minimum standards of dental diagnosis and treatment when measured against generally prevailing peer performance. (emphasis added). Fairly read, the Amended Complaint alleges the standard of care as follows: when a patient reports continuing, localized dental pain, a practitioner must take an x-ray of the symptomatic area or otherwise rule out endodontic involvement. As Respondent correctly argues, however, the testimony of Petitioner's expert departs substantially from the theory pleaded in the charging document. First, contrary to paragraph 27 of the Amended Complaint, which alleges a failure to take x- rays “or otherwise rule out” an abscess, Dr. Brotman's formulation of the standard of care absolutely requires the taking of an x-ray to eliminate the possibility of endodontic involvement. To muddy the waters further, Dr. Brotman's articulation of the prevailing standard at times focused not on P.D.'s supposed reports of continued pain but, rather, the fact that Respondent made more than one adjustment to the new bridge subsequent to its seating: A Sure. I think we fell below the minimum standards on 4/7, 4/13 and 4/19 of 2010, because each of those visits, because the patient came back with the bite having shifted, which for that reason Dr. Almerico continued to adjust the bite on each visit. * * * BY MR. PRICE: Q Doctor, you just gave an opinion that is the standard of care that a patient with more than one adjustment, they automatically get an X-ray. You just gave that as a standard-of-care opinion, didn't you? A Yes, sir. (emphasis added).14/ In light of the significant degree to which Dr. Brotman's testimony deviates from the theory charged in the Amended Complaint, it is concluded that Petitioner has failed to convincingly articulate the minimum standard of performance against which the undersigned, as fact-finder, can independently evaluate Respondent's conduct. Even assuming that Petitioner had established the standard of care (as pleaded), there is a dearth of credible evidence that P.D. presented with continuing, localized pain relating to the new bridge. As detailed previously, P.D.'s report on April 7 that she was “biting her cheek” involved the older bridge at teeth numbers 11 through 14; on her next visit, she complained only that her new bridge was “catching her lip”; on April 19, P.D. merely informed Respondent that the older bridge was “hitting hard”; and, on her final visit, P.D. complained of nothing at all (save for her dubious request for a free replacement of the older bridge).15/ Such hardly constitutes a pattern of ongoing, localized pain. In any event, the persuasive evidence demonstrates that Respondent “otherwise ruled out” endodontic involvement through his clinical observations. Indeed, as Dr. Fish persuasively explained during his testimony, P.D. presented with none of the symptoms16/ sometimes associated with the presence of an abscess——e.g., sensitivity to temperature, exquisite pain, sensitivity to percussion, a fistula, or inflammation——during the office visits of April 7, 13, 19, and 27, 2010, thereby obviating the need for an x-ray. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is not guilty of violating section 466.028(1)(x).

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Dentistry dismissing Count I of the Amended Administrative Complaint. DONE AND ENTERED this 9th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 9th day of July, 2014.

Florida Laws (3) 120.57, 120.60, 466.028

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WILLIAM J. HELWIG AND A. W. ROWE vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 79-001570 (1979)

Division of Administrative Hearings, Florida Number: 79-001570 Latest Update: Dec. 10, 1979

Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.

Florida Laws (1) 120.57

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HEWITT CONTRACTING COMPANY, INC. vs. DEPARTMENT OF TRANSPORTATION, 88-002898BID (1988)

Division of Administrative Hearings, Florida Number: 88-002898BID Latest Update: Aug. 24, 1988

Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.

Florida Laws (1) 120.57 Florida Administrative Code (3) 14-22.002, 14-22.003, 14-22.0041

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TONY L. PHILLIPS vs DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, 15-005003 (2015)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Sep. 09, 2015 Number: 15-005003 Latest Update: Nov. 23, 2016

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/

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.

Florida Laws (10) 120.52, 120.54, 120.569, 120.57, 120.68, 489.101, 489.103, 489.105, 489.107, 489.111

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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD vs FREDERICK L. PAYETTE, 08-000543PL (2008)

Division of Administrative Hearings, Florida Filed:Vero Beach, Florida Jan. 29, 2008 Number: 08-000543PL Latest Update: Jul. 05, 2024

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SUPERIOR PAVING, INC. vs. DEPARTMENT OF TRANSPORTATION, 86-000314BID (1986)

Division of Administrative Hearings, Florida Number: 86-000314BID Latest Update: Apr. 09, 1986

Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.

Florida Laws (2) 22.03, 337.14

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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION vs LAWRENCE HARTWELL RACIES AND THE HARTWELL GROUP, INC., 07-000781 (2007)

Division of Administrative Hearings, Florida Filed:Deland, Florida Feb. 14, 2007 Number: 07-000781 Latest Update: Feb. 29, 2008

The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the offenses set forth in the Administrative Complaint and if so, what if any sanction is warranted.

Findings Of Fact The Petitioner is an agency of the State of Florida charged, as pertinent hereto with enforcing the provisions of Chapter 455 and Chapter 489, Florida Statutes (2007), regulating the licensure, registration or certification of contractors in the State of Florida and regulating the standards of contracting practice, as well as regulating unlicensed construction and contracting pursuant to those statutory chapters. The Respondent has not been licensed to engage in contracting in Florida. On June 13, 2005, the Respondent was previously issued two notices and orders to cease and desist from practicing or performing contracting work in violation of Section 489.127(1), Florida Statutes, for performing or offering to perform contracting work without licensure. On May 10, 2006, the Respondent submitted a "Contract" to Nelson Goodreau calling for the Respondent to build a deck at Goodreau's residence located at 45 South Shell Road in DeBary, Florida. Mr. Goodreau had contacted the Respondent by calling a phone number he saw listed on an advertisement placed by the Respondent in a local newspaper. The advertisement was placed by the Respondent, holding himself out as the licensed contractor, with license number CBC 058448, and advertising to build custom decks. The Respondent had the permission of Zent Construction, Inc., through Michael Zent (hereinafter Zent), the holder of that license number CBC 058448 to reference that license number in advertising. The permission of Zent, however, was approval to advertise for contracting work, but only in the name of and on behalf of Zent Construction, Inc. In any event, the Respondent did not have any permission from Zent Construction, Inc. to use that license or license number to advertise for contracting projects on behalf of the Respondent's own business. The Respondent met with Mr. Goodreau at Goodreau's home and showed him a portfolio of pictures of his previous deck projects. The Respondent and Goodreau entered into an agreement or contract which contained the following paragraph: This project is being proposed with you, the owner acting as 'owner contractors' and as such are responsible for all municipal compliance issues relevant. The Hartwell Group, Inc. is a construction subcontracting entity and not a Florida state certified general contractor as specified in Florida law. Under this agreement, it would appear that Goodreau was to obtain any necessary permits from the municipality or county as the case may be. No permits were ever obtained for the deck project. The Respondent drew a sketch of the deck contemplated, following discussions between the Respondent, Goodreau, and Goodreau's wife, Donna. Goodreau's input in designing the deck was limited to choosing the location of benches and stairs and the shape and form of the deck railing as well as choosing composite timber as the decking material. Mr. Goodreau paid the Respondent approximately $10,600 to build the deck. Goodreau and the Respondent contemplated that he would be retained pretty much as a contractor to build the deck although the agreement stated that Goodreau was to be the "owner-contractor." Goodreau did not hire the Respondent as merely a laborer to work under Goodreau's supervision. Goodreau hired the Respondent to build a turn-key deck project. Goodreau did not contemplate nor did he closely supervise the Respondent during the construction. He occasionally did point out to the Respondent certain problems with the quality of the work of the deck which he observed and requested the Respondent to correct the problems. The Respondent did not look to Goodreau for any instructions on how to build the deck during the deck's construction. Although the contract between them indicated that Goodreau would be responsible for securing any regulatory compliance from the municipality, no permit was ever obtained for the project. Ultimately, the City of DeBary, Florida, cited Goodreau for the unpermitted deck work. On May 23, 2006, Goodreau sent an email to the Respondent asking him to correct a number of quality problems with the deck. In the email, Goodreau identified those problems and indicated to the Respondent the solutions Goodreau preferred for the correction of the problems. In responding to Goodreau's request to use a new full length board or timber for the ledger board of the deck where it attached to the house instead of wood scraps, as the Respondent had used, the Respondent answered Goodreau saying that "although this is a micromanagement request over the line," he informed Goodreau he would still accommodate the request with "no change order." The Respondent also requested Goodreau to be patient because Goodreau has "seen the up close final products of [Respondent's] recent work on decks and docks in portfolio, and know [sic] that the final products are not sloppy." When Goodreau asked the Respondent to straighten the deck joist, the Respondent replied that he would do that as part of his "already existing quality control standard and practices." Finally, when Goodreau asked to see the receipts for the materials bought by the Respondent, the Respondent angrily threatened to stop the project explaining that he does not like "controlling spirits crossing that far across the line into our inner system." This kind of language, terminology and dialogue indicates a person independently charged with completing their project and not a person employed as an employee, laborer or sub-contractor subject to the hourly and daily supervision by the owner. The Respondent's behavior during construction of the deck shows that he was not acting as a laborer but as a contractor. He did not ask Goodreau for any instructions on how to build the deck. He demanded payment like a contractor, for materials and a lump sum for the job, payable in draws for each construction phase. He resisted Goodreau's attempts to "micromanage him" and bluntly refused to account for the money paid by Goodreau for materials, justifying that such an accounting was a severe violation of his work autonomy. The entire time the Respondent acted as if, in exchange for the money paid by Goodreau, that he would deliver a satisfactory "final product" and clearly resisted Goodreau's attempts to discuss decking issues before the "final product" was delivered. His conduct shows clearly that he did not consider himself to be an employee, but rather an independent contractor.

Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondent violated Section 489.127(1)(f), Florida Statutes, and Section 455.227(1)(q), Florida Statutes (2007), and that an administrative penalty of $2,000.00 be imposed. DONE AND ENTERED this 1st day of February, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of February, 2008. COPIES FURNISHED: Michael C. Huddleston, Esquire Clayton, Teal & Huddleston, P.A. 817 West New York Avenue Deland, Florida 32720 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (8) 120.569, 120.57, 455.227, 455.228, 489.103, 489.105, 489.127, 489.531

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FLUOR-ASTALDI-MCM, JOINT VENTURE vs DEPARTMENT OF TRANSPORTATION, 17-005800BID (2017)

Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Oct. 19, 2017 Number: 17-005800BID Latest Update: Apr. 30, 2018

The Issue Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture. DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 April, 2018.

CFR (3) 23 CFR 771.109, 23 CFR 771.1113, 23 CFR 771.125 Florida Laws (7) 120.54, 120.569, 120.57, 120.68, 334.30, 337.11, 7.20

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