The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Mr. Calleja had a valid and active license as a commercial certified pool/spa contractor. His license number is CP 1456568. At all times material to this proceeding, Mr. Calleja was the owner of or did business as Nautica Pools & Spa (Nautica). The Board is charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. On April 2, 2005, Mr. Calleja, as the representative for Nautica, entered into a contract with Jack Coleman to renovate Mr. Coleman’s existing pool. From April 2005 to July 27, 2005, Nautica installed rebar in the pool and set a new skimmer. Nautica subcontracted with Prestige Gunite of Melbourne, Inc. (Prestige), to put the gunite in the pool. Gunite is concrete that is sprayed out of a hose to form the walls of the pool. Personnel from Prestige arrived on the project site on the afternoon of July 27, 2005, to apply the gunite, but did not do so because the application would have taken longer to do than one afternoon. The following day, July 28, 2005, Mr. Calleja and a crew from Prestige returned to the project. A representative from Prestige told Mr. Calleja that the steel rebar had not been laid properly. Mr. Calleja told Prestige to apply the gunite and do what was necessary to cover the steel. Mr. Calleja left the project site, and Prestige began applying the gunite. During the application of the gunite, it became evident that the first spraying of gunite was not going to cover the steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja was not available to solve the problem. Prestige began applying additional coats of gunite in an attempt to cover the steel. After the gunite was applied, two problems were identified. The first problem was in the fountain area. The gunite had not been applied properly, and there were hollow areas. The second problem was in the wet deck area. The steel rebar was too close to the surface of the floor, and the steel was visible. In order to remedy the problems, the concrete in the areas would have to be jack hammered to remove the concrete, and new gunite would have to be applied. By letter dated August 28, 2005, Nautica requested Mr. Coleman to pay Prestige $954.57. Nautica advised Mr. Coleman that when that amount had been paid, Nautica would pay the balance owed to Prestige and forward a release to Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the $954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In the letter, Nautica acknowledged that there was additional work which had not been completed. The letter was signed by Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman that he wanted Mr. Coleman to pay him $2,000.00, and he would take care of paying Prestige. The general specifications in the contract required that the contractor was responsible for “[s]tandard structural engineering plans and permits required by code.” Prior to commencing work on the pool renovation, Mr. Calleja did not secure the required building permits for the project. Mr. Coleman called Clifford Stokes, who is the building official with the town of Indialantic, and asked whether a permit had been issued. Mr. Stokes went to the project site. At that time, the gunite had been shot, and there was exposed steel rebar. Since no permit had been pulled, no inspection had been done after the steel was put in place. On September 15, 2005, Mr. Calleja applied for a building permit. Because the steel had been placed, and the gunite shot, it was impossible to do a visual inspection to determine whether the steel had been placed properly. In order to get a permit after the construction had been commenced, certain affidavits had to be submitted to the building official of Indiatlantic. Mr. Calleja had to submit an affidavit stating that the steel had been placed properly. An affidavit stating that the work had been performed properly had to be submitted from an engineer, who had made a site visit to the project and had determined that the work performed had been according to code. Additionally, Mr. Coleman was required to submit an affidavit that stated that he understood that no inspection had been done of the work by the building official. Mr. Calleja also had to pay a fine to Indiatlantic for commencing work without a building permit. On October 19, 2005, Mr. Calleja and Robert Lee from Lee Engineering came to the project site for the purpose of preparing the affidavits necessary to secure a building permit. Mr. Calleja did not return to the project site after October 19, 2005. Mr. Coleman sent a letter to Mr. Calleja dated October 13, 2005, noting that no work had been done on the project since July 28, 2005, and requesting that Mr. Calleja remedy a number of deficiencies with the work performed on the project and complete the job in accordance with the contract. The letter was returned to Mr. Coleman by the postal service because the time for forwarding mail from the address listed in the letter had expired. When Mr. Calleja came to the project site on October 19, 2005, Mr. Coleman requested a current address from Mr. Calleja, but Mr. Calleja refused to give him one. Mr. Coleman wrote another letter to Mr. Calleja dated October 25, 2005, again stating that no work had been done since July 28, 2005, and requesting that Mr. Calleja correct the deficiencies in the work and complete the contract. Mr. Coleman filed an action in small claims court attempting to recover the money for the lien filed by Prestige. However, Nautica had filed for bankruptcy, and Mr. Coleman did not proceed with the small claim action. A building permit for the project was issued in January 2006. The issuance of the building permit did not relieve Mr. Calleja from the responsibility of assuring that the work in the shallow end of the pool area where the rebar was sticking up was redone properly. After the building permit was issued, neither Mr. Calleja nor Mr. Coleman called for inspections by the Indiatlantic building official. The permit expired in June 2006. After the issuance of the building permit, Nautica performed no further work on the project. The total contract price was $9,340.00. Mr. Coleman and Mr. Calleja entered into an addendum to the contract on July 27, 2005, which increased the contract price to $13,000.00. The contract called for a down payment of $934.00, which was ten percent of the contract amount. After completion of excavation and the form and steel work, a payment of $3,736.00 was due, representing 40 percent of the total work. After completion of the pool shell, a payment of $2,802.00 was due, representing 30 percent of the total work. Prior to plastering, which represented 20 percent of the total work, a payment of $1,868.00 was to be paid. The contract addendum of $3,660.00 called for 50 percent of the addendum amount to be paid at the completion of the pool shell, and the remaining 50 percent of the addendum amount was to be paid at the completion of the pool. By check dated April 22, 2005, signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on the project. In June 2005, Mr. Coleman gave Mr. Calleja a check for $573.42 for a pool and spa light. Mr. Coleman was to receive a credit of $380.00 toward the contract for the light. Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By check dated July 27, 2005, and signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to include half of the addendum amount, but Mrs. Coleman inadvertently included the full amount of the addendum. By check dated August 1, 2005, and signed by Mrs. Coleman, Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005, Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract. In December 2005, Mr. Coleman asked a representative of Paradise Pools, Patrick McDonough, to come to the project site and give an estimate to complete the pool. The estimate of $7,800.00 from Paradise Pools was for a cosmetic plaster of the existing pool, and the work was not warranted against leakage. Mr. McDonough would not warrant the work, because he saw a lot of potential liability problems with the work performed by Mr. Calleja. Mr. McDonough did not recommend that a cosmetic plaster be performed because of the potential problems. On October 26, 2005, Prestige filed a Claim of Lien against the property of Mr. Coleman for $4,227.40 plus interest, costs, and attorney’s fees. The lien was for the work which Prestige had performed on the project on July 28, 2005, and for which Mr. Calleja had failed to pay. Mr. Coleman called Mr. Calleja and told him that a lien had been filed. Mr. Calleja assured him that he would pay the lien, but he failed to do so. Mr. Coleman satisfied the lien by check dated April 11, 2006, for the amount of $5,139.58. David Bogenrief, P.E., viewed the project in June 2008 and provided Mr. Coleman with a quote to develop structural plans to repair Mr. Coleman’s pool. There was no testimony on the amount of the quote, and the Department did not request that the written proposal be admitted in evidence. Mr. Bogenrief did not know what it would cost to repair the pool. The Department has incurred $470.49 for costs in the prosecution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Calleja did not violate Subsection 489.119(2), Florida Statutes, and that Mr. Calleja violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; for the violation of Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as restitution for the payment of the lien filed by Prestige; for the violation of Subsection 489.129(1)(g)2., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $9,682.00, which represents the amount that Mr. Coleman paid to Mr. Calleja; for the violation of Subsection 489.129(1)(j), Florida Statutes, imposing a $1,000.00 fine and four years of probation; for the violation of Subsection 489.129(1)(m), Florida Statutes, imposing a $1,000.00 fine and four years of probation, which shall run concurrently with the other probation imposed; and, for the violation of Subsection 489.129(1)(o), Florida Statutes, imposing a $1,000.00 fine and two years of probation to run concurrently with the other probation imposed; and requiring payment of $470.49 as costs for the prosecution of this case. DONE AND ENTERED this 29th day of August, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2008.
The Issue The issue in this case is whether Respondent, Motel 6, discriminated against Petitioner, Emanuel Sessions, a/k/a Emanuel Glenn, by refusing to rent him a room at the Motel 6, Number 0791 (Motel), based on his race, African-American.
Findings Of Fact Petitioner is an African-American male. The Motel is part of a national public lodging establishment chain, which is in the business of renting rooms to consumers. The Motel is located in Orange County, Florida, where the alleged act of discrimination arose. On October 25, 2010, and for six consecutive nights, Petitioner was a guest at the Motel, registered under the name of Emanuel Glenn.1/ There were no allegations of discrimination reported between October 25, 2010, and October 31, 2010.2/ The only allegation of discrimination occurred on November 1, 2010, when Petitioner was denied a room at the Motel. On October 31, 2010, Petitioner secured room 124 at the Motel. This room was on the ground floor, facing the parking lot. During his testimony, Petitioner failed to recollect that he had stayed at the Motel for the five nights prior to October 31, 2010. Petitioner could not recall when he stayed at the Motel, claiming it was over a year ago, and he did not know; yet, he was adamant that, on November 1, 2010, the Motel would not rent him a room. The evidence was overwhelming that Petitioner had stayed at the Motel for six consecutive nights, beginning on October 25, 2010. On October 31, 2010, the Motel's manager-on-duty was Emile Saleeb (Mr. Saleeb).3/ Late on October 31, 2010, Petitioner went to the Motel lobby and complained to Mr. Saleeb about a security guard questioning Petitioner as he sat in his car in the Motel's parking lot. Petitioner acted in an aggressive and offensive manner and used profanity towards Mr. Saleeb while at least one and up to three other Motel guests were present in the lobby. Mr. Saleeb felt Petitioner caused a disturbance in the Motel's lobby, which could be categorized as aggravated misconduct on the part of a Motel guest. Mr. Saleeb had concerns for the safety and welfare of the Motel's guests as well as its employees. The Motel has a policy that anyone causing a disturbance or engaged in aggravated misconduct on the property will be placed on the do not rent (DNR) list.4/ Mr. Saleeb has the authority to place someone on the DNR list for the Motel. Based on his encounter with Petitioner on October 31, 2010, Mr. Saleeb put Petitioner's name on the Motel's DNR list. Mr. Saleeb's testimony was credible. The following evening, on November 1, 2010, Petitioner attempted to rent another room at the Motel. At that time, Petitioner was told he would not be able to rent a room as he had been placed on the Motel's DNR list. No testimony, credible or otherwise, was offered that Petitioner was told that the refusal to rent a room to him was based on his race. Petitioner jumped to the conclusion that he had been discriminated against because of his race. He believed he had been denied a room at the Motel because he is African-American. He filed a complaint with the Commission about the incident. In his complaint, Petitioner said that he "was told that I couldn't rent a room at Motel 6 on November 1, 2010 because of my skin color, and I have proof wich [sic] is my witness that was there with me." However, this complaint information conflicts with the information that Petitioner provided to the Motel's guest relations department on November 2, 2010. In the guest relations contact report, it was recorded that: GST states last night, he tried to c/i to prop & was told by GSR that he cannot rent there. GST sd he asked why & was told it is based on past experience. GST asked GSR to elaborate & GSR said he had no further information. GST sd the last time he was at prop he had a room with his partner. GST sd he went to sit in his car right outside the rm to made a call to get a better signal. While he was sitting in the car, a police officer came up to the car & opened the door & asked him why he was sitting in his car & did he have a room there. GST sd he told the officer that he did have the room right in front of the car & was making a call from the car because there was a better signal. The officer told GST he had to go back inside his room. GST sd other people were outside their rooms. GST sd when he C/O he told GSR about the officer being rude & opening his car door. GST sd he does not understand any of this. GST said there is no reason for him to not be able to rent at property. GST said he was told he cannot rent there last night about 11 p.m. & the man at the F/D was named Nabeel. Petitioner did not present any witnesses to testify despite repeated opportunities to do so. According to Robert Wade (Mr. Wade), the general manager of the Motel, his primary concern is for the safety and welfare of all the guests on his property, as well as for the safety and welfare of his employees. Mr. Wade confirmed that he is in the business of renting rooms in order to make money; the more money the business brings in, the more his bonus (and the bonuses of his employees) will be. Thus, he wants to rent rooms to customers; however, he must be able to maintain the property in a manner that customers will want to stay at the property. Mr. Wade receives a security report every day from the security officer who was on duty the previous night. Based on this security report, Mr. Wade knows if there are broken lights on the property that need to be fixed, parking lot issues to be addressed or other maintenance issues that should be resolved to ensure the property is well maintained. Additionally, he reviews the security report to review any incidents involving Motel guests or other activities. Upon receipt of the security officer's report of October 31, 2010, Mr. Wade became aware of an incident in the parking lot involving Petitioner. Mr. Wade interviewed Mr. Saleeb and the security officer, Willie Wilson, in order to understand the circumstances. A day later, Mr. Wade was contacted by the Motel's guest relations office regarding a complaint that Petitioner had lodged on November 2, 2011. Based on his own investigation into the facts and circumstances regarding Petitioner being placed on the Motel's DNR list, Mr. Wade determined that it was in the best interest of the Motel that Petitioner be on the Motel's DNR list. Mr. Wade's testimony is credible. There are other Motel guests who are on the DNR list for similar and other reasons. Those guests who are put on the Motel's DNR list based on an infraction of a Motel policy are banned from the property for one year. However, guests whose names are provided by law enforcement for the Motel's DNR list are banned for up to three years. Neither of Petitioner's names is currently on the Motel's DNR list. During the hearing as the facts were presented, Petitioner did not appear to grasp the concept that his placement on the DNR list was a result of his encounter with the security officer in the parking lot which resulted in his loud, aggressive, and disruptive behavior in the Motel lobby in front of Mr. Saleeb and other Motel guests. Petitioner had stayed at the Motel for six consecutive nights. Unfortunately on the sixth night, Petitioner engaged in behavior that caused a disturbance, and he was placed on the DNR list. Petitioner contacted the Motel's guest relations department on November 2, 2010, to complain about his inability to rent a room at the Motel on November 1, 2010. During that November 2, 2010, telephone conversation, Petitioner specifically recalled his issue with the Motel security officer. Yet during the hearing, Petitioner evaded questions about any contact with the security officer, claiming he "might have come across a security guard." Petitioner did not answer questions in a concise manner and evaded answering some questions all together. Thus, his testimony is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Emanuel Sessions in its entirety. DONE AND ENTERED this 16th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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, 2011.
Findings Of Fact Leroy Alvin Colts was qualifier for Berkley Home Service, which held License #RC0029635. Colts held such license from 1977 - 81. In December 28, 1978, Leroy Alvin Colts' local certificate of competency was revoked by the Pinellas County authorities. This action was reviewed by the Florida Construction Industry Licensing Board prior to these charges being filed. On January 4, 1979, Leroy Alvin Colts was adjudged guilty of violating Section 812.021 (Grand Theft) and Section 812.014 (Grand Larceny) and sentenced to 45 years in the State Penitentiary. These offenses arose directly from Colts' activities as a licensed contractor. The court's judgment was affirmed by the appellate court. Notice of this proceeding was provided Colts in the manner prescribed by law, and inquiry of Counsel for the Petitioner Board and representatives of the St. Petersburg Police Department showed that Colts was free on bond and available to attend the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommended that the Florida Construction Industry Licensing Board revoke Leroy Alvin Colts' license. DONE and ORDERED this 21st day of September, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael E. Egan, Esquire 247 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joseph F. McDermott, Esquire 544 First Avenue, North St. Petersburg, Florida 33701 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner,
The Issue The issues in this matter are as promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation against William B. Garrison. In particular, the respondent is charged with having diverted funds or property received for the completion of a specific project in violation of Section 489.129(1)(h), Florida Statutes (1979). In addition, the respondent is charged with signing a statement falsely indicating that payment had been made for all subcontracting work, in violation of Section 489.129(1)(1), Florida Statutes (1979), and of making misleading, deceptive, untrue or fraudulent representations in the practice of his profession in violation of Section 455.227(1)(a), Florida Statutes (1979). It is the respondent's denial of these accusations and request for formal hearing which eventuated in this recommended order.
Findings Of Fact Respondent is a holder of a registered building contractor's license issued by the Florida Construction Industry Licensing Board. That license number is RB0029142, first issued in 1975. Respondent has been associated with the construction business on a full time basis since 1970. From 1975 through 1981 respondent operated as Garrison Builders of Tallahassee, Inc. At all times relevant to the administrative complaint, respondent was the qualifier of Garrison Builders of Tallahassee, Inc., pursuant to Section 489.119, Florida Statutes. On August 6, 1980, Garrison Builders of Tallahassee, Inc., contracted with TBW, Inc., to build eight townhouses at Larette Drive, in Tallahassee, Florida, for a contract price of $269,424.00. That base contract price was subject to change orders, the first of which decreased the contract price by $8,000 and the second which increased the contract price by $864.00. As a consequence, the final contract price was $262,388.00. Garrison Builders of Tallahassee, Inc., was paid a total of $257,598.38 under the terms of the contract. Garrison Builders paid out, related to the account for this project, $257,890.01. As of March 31, 1981, respondent had failed to pay the following subcontractors and materialmen in the amounts designated: Butterfield's Floor Covering, Inc. $ 277.10* Barineau & Sons Heating and Air Conditioning 2,420.00 Big Bend Rental Center, Store #1 596.96 Sam Crowder Co. 61.39 Discount Lumber, Inc. 445.33* Ken Driggers, Inc. 32.14 Deep South Insulation Co. 600.00 John T. Daniel Cabinet Co. 3,400.00 Miller Sheet Metal 1,292.00 Melco Wood fixtures 1,502.59 Maples Concrete Products Co., Inc. 1,571.31 Quality Plumbing, Inc. 5,864.00* Tallahassee Glass & Screen 690.56 Tallahassee Rug Co. 1,486.51 Yarbrough Paint & Decorating Center 1,589.15 City Building Department-Systems Charges 1,790.10 Wallpaper Installation-50 rolls @ $7.00/roll 350.00* Total $23,969.14 *Billing not complete The contract between Garrison Builders and TBW was to be performed in 150 days after August 6, 1980, subject to allowances for rain days, etc. Garrison Builders was responsible for satisfying the claims of the materialmen and subcontractors as reflected above, in keeping with the terms of the contract. Respondent, as president of Garrison Builders, was responsible for the overall project. In keeping with the contract terms, respondent and the job foreman for the subject project made application and certification for payment. These applications and certifications may be found as part of the petitioner's composite Exhibit Number 2, admitted into evidence. The last of those applications was made by the respondent on February 17, 1984. Prior to that payment, Garrison Builders had been paid $247,136.70. On that occasion, as on other occasions, respondent certified, "that all amounts have been paid by him for work for which previous certificates for payment were issued and payments received from the owner. . . ." in signing the certification for an additional $10,461.68 draw. At that point in time approximately 98 percent of the job had been completed. Nonetheless, contrary to the certification statement, materialmen and suppliers had not been paid as demonstrated in the accounting set forth above showing that as of March 31, 1981, $23,969.14 was still owed, which amount far exceeds the difference between the contract price of $262,388.00, and the amount Garrison Builders had been paid prior to the last draw, i.e., $247,136.70. That differential is $15,251.30. In a meeting in March 1981 at which respondent attended and was represented by counsel, respondent admitted to a representative of TBW that materialmen and suppliers had not been satisfied in terms of payment. By affidavit of April 3, 1981, a copy of which is petitioner's Exhibit Number 5 admitted into evidence, he acknowledged the $23,969.14 of outstanding claims effective March 31, 1981. Moreover, in a court appearance involving TBW and some of the materialmen and suppliers in which the question of possible liens by those latter entities was litigated, respondent admitted that he had lied in his statement of certification in the contractor's application and certificate for payment, wherein he stated that all materialmen and suppliers had been satisfied before obtaining payments under the contract. This admission, taken in the context of the other facts found, indicates that the respondent appreciated that materialmen and suppliers had not been paid when he made application for the February 17, 1981, draw and swore that they had. This oath as to that circumstance was not one of mistake or inadvertence. It was a comment made with the knowledge of the implications of the oath. Thus, the effect was to be false, misleading, deceptive, untrue and fraudulent, contributing to a loss of $277.10 which the owner paid Butterfield Floor Covering without reimbursement. Respondent was not paid the balance of the contract price, the owner having claimed that the contract was 90 days beyond the contract date for completion, and upon the assertion by the owner that additional funds had to be expended to complete the contract over and above the contract amount. Respondent claims that the reason for late completion concerned a problem with a subcontractor who was providing cabinets, one John Daniel. In addition, respondent alludes to the fact that he was in the hospital from November 10, 1980, through November 20, 1980, and again from December 2 through 19, 1980, and as a consequence was unable to supervise the job in a manner which he preferred. Daniel was a subcontractor chosen by the owner and accepted by the respondent. From a review of the evidence, it is unclear whether Daniel was the responsible agency for the project being approximately 90 days over the contract period. It is also uncertain whether the essentially 90 day delay was in view of respondent's failures as responsible agent for Garrison Builders. Had Garrison Builders been responsible the owner would have been entitled to deduct essentially $20 a day for late penalties. Finally, the owner's claim of expenditures in excess of $10,000 to complete the job was not satisfactorily proven. In summary, the job was late for reasons unestablished. Certificates of occupancy were issued for the eight units in March 1983 signaling the completion of the job. On the subject of whether respondent diverted funds and property from this project into other projects thereby affecting the outcome of the project, the proof on balance demonstrates that Garrison Builders, under the aegis of the respondent, made a bad bargain by underbidding this project as opposed to diverting funds and property to other pursuits.
Recommendation Upon consideration of the findings of facts and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of a violation of Section 489.129(1)(1), Florida Statutes, and Section 455.227(1)(a), Florida Statutes, and dismisses the allegation of a violation of Section 489.129(1)(h), Florida Statutes. For the violations established, a penalty of a 60 day suspension should be imposed against the respondent. DONE AND ENTERED this 11th day of September 1984 in Tallahassee, Florida. CHARLES C. ADAMS 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 11th day of September 1984. COPIES FURNISHED: Michael Egan, Esquire ROBERTS, EGAN & ROUTA, P.A. 217 South Adams Street Tallahassee, Florida 32302 Jeffrey H. Savlov, Esquire Post Office Box 10082 Tallahassee, Florida 32302 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Board of Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the Respondents committed the violations alleged in the Administrative Complaint dated April 18, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: FEMC is the entity responsible for providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers ("Board"). § 471.038(4), Fla. Stat. The Board is responsible for regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. At all times material to this proceeding, Mr. Hernandez has been a licensed professional engineer in the State of Florida, having been issued license number P.E. 46618. G.F. Consulting Engineers, Inc., is a licensed engineering firm holding Certificate of Authorization # 9129. In late 2004, architect Carlos Lozano was commissioned to design plans for the renovation of a structure that was to become the Moon Thai Restaurant in Coral Gables, Florida. G.F. Consulting Engineers, Inc., was retained to provide structural engineering services for the Moon Thai Restaurant Renovation Project ("Project"). Mr. Hernandez was the professional engineer in charge of producing the plans and calculations for the structural portions of the Project. On February 8, 2005, Mr. Hernandez sealed, signed, and dated a set of structural plans, which were submitted to the Coral Gables Building Department. Dariusz Reczek, P.E., a structural plans examiner employed by the Coral Gables Building Department, reviewed the plans and issued a set of Structural Review Comments dated April 12, 2005. Among other comments, Mr. Reczek directed Mr. Hernandez to "[r]eview 50% rule per FBC [Florida Building Code] (3401.8)" and to provide a set of structural calculations.3 Mr. Hernandez received Mr. Reczek's comments in April 2005, and, on or about April 26, 2005, Mr. Hernandez sealed, signed, and dated structural calculations and revised structural plans for the Project. Mr. Reczek prepared another set of Structural Review Comments dated May 23, 2005, which included the comments made on April 12, 2005, and added three comments related to the new structural drawings submitted April 26, 2005. On June 1, 2005, Mr. Hernandez sealed, signed, and dated additional structural plans and, on June 2, 2005, Mr. Hernandez sealed, signed, and dated additional structural calculations. The comment that Mr. Hernandez "review the 50% rule" was ambiguous with regard to Mr. Reczek's opinion as to whether the rule did or did not apply. Mr. Hernandez was, however, advised that Mr. Reczek was of the opinion that the 50 percent rule did apply to the Project. Mr. Hernandez believed that the 50 percent rule did not apply.4 Although Mr. Hernandez disagreed with Mr. Reczek's assessment that the 50 percent rule applied to the Project, he nonetheless modified the structural calculations and plans to address Mr. Reczek's primary concern, the danger that the building would overturn as a result of being subject to high velocity winds. In the June 1 and 2, 2005, plans and calculations, Mr. Hernandez addressed Mr. Reczek's concern that the building might overturn by designing 8' x 8' concrete dead weight anchors that were to be attached to the existing footings on the building. The dead weight anchors were designed to prevent the building from overturning by adding additional weight to the building to counteract the overturning effect. Mr. Hernandez's intent in the June 1 and 2, 2005, structural plans and calculation was not to redesign the footings of the building.5 Mr. Hernandez's design of the dead weight anchors was appropriate to address the concern of the Coral Gables Building Department plans examiners regarding the lateral stability of the building and the possibility of overturning, even though he disagreed with the plan examiner's concern, and Mr. Hernandez used due care and had due regard for acceptable standards of engineering principles in formulating the design.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Engineers enter a final order dismissing the Administrative Complaint against Fresnel E. Hernandez, P.E., and G.F. Consulting Engineers, Inc. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 June, 2007.
The Issue This dispute concerns the interpretation of the contract for the construction of the new capitol complex for the State of Florida in Tallahassee. The Respondent, J. A. Jones Construction Company, is the general contractor. Honeywell, Inc. and Electric Machinery Company, Inc. are Intervenors and subcontractors on the job. At the heart of this dispute is the question of whether certain items were included in the base bid or should be considered to be part of an alternate to the base bid which was not accepted by the owner, Department of General Services. Specifically, the parties differ over the interpretation of Schedule 16707 of the base bid which involves certain fire and security installations and Contract Alternate No. 7 which was not accepted by General Services. The Respondents and Intervenors maintain that Schedule 16707 should be considered to be part of Alternate No. 7 and no longer part of the base bid. The Department of General Services, on the other hand, maintains that Alternate No. 7 did not and could not be interpreted to exclude any part of Schedule 16707 and that Jones and the subcontractors are responsible for installing said work and receiving no extra compensation for it. Schedule 16707 of the base contract specifications consists of 16 pages dealing with requirements for installation of the new capitol's sophisticated fire and security control and monitoring system. Alternate No. 7 is found on Schedule 01102-P4 and is entitled Alternate No. 7; ADD CCTV AND SECURITY ITEMS. It states in part: "Under Alternate No. 7 add the following work to the Building Monitoring System for Fire and Security: (c) All remote door locks, actuators, annunciators and alarms for the remote door locks for the Governor's suite specified in Section 16707, Paragraph 16707-03f) and scheduled in Paragraph 16707-05." The specifications of the contract provided that the base bid would include the entire, completed project except for work included in the alternates. alternate No. 7 was not accepted by the Department of General Services after the bids were opened and the question now remains as to how much work the general contractor is responsible to provide under the base bid. Since Alternate No. 7 is excluded from the project, the contractor is not responsible to provide items described in that schedule, without extra compensation. Honeywell, Inc., through its employees, submitted a bid to the Electric Machinery Company, Inc. consisting mostly of a bid on the equipment it would provide under the contract specifications and Electric Machinery Company used that bid to submit a bid to Jones who bid as a general contractor to provide installation of the required components for the Capitol Complex Phase II. Jones used that information and estimate to prepare and submit a bid for the entire Capitol Complex. That bid was submitted on the assumption and interpretation, after studying the entire contract specifications including the alternates, that the base bid consisted of the fire management system and that Alternate No. 7 encompassed the security system. The contractors did not interpret the base bid to include items in the security system as it was their interpretation such work would be performed only if Alternate No. 7 was accepted. On the other hand, the Department of General Services states that the fair interpretation of Alternate No. 7 restricts itself not to the entire complex, but only to the Governor's suite. The Department of General Services maintains that Alternate No. 7 cannot be considered to be misleading or ambiguous to anyone experienced in bidding on complex construction projects and that the fair reading of the specifications in Alternate No. 7 and Schedule 16707 requires the contractor to furnish items in the security system under their responsibilities in the base contract. Further, the Department of General Services maintains that under the contract J. A. Jones and the subcontractors had a responsibility to get an interpretation from the architect over any items they now maintain to be ambiguous and that the failure to do so absolves the Department of General Services from any obligation to pay on a quantum meruit basis. The contractors when preparing their bid submittals did not consider Alternate No. 7 to be ambiguous at any time, but interpreted it in the manner described above. When it became apparent there was a difference of interpretation over what was included in the base bid, the question was submitted to the architect (Reynolds, Smith and Hills) who responded by letter on November 12, 1975 (Honeywell Exhibit No. 3) stating that Alternate No. 7 only excluded remote locking devices for the Governor's suite and gates, gate sensors and remote gate locks specifically referred to in the Alternates And Basis of Bids section. Although the central issue during this hearing was the interpretation of these specifications, testimony was taken and argument presented over a period of four days. The contractors presented evidence which tends to show that they acted consistently with their claim that their base bid never included items which are part of the building security system. For example, the contractors submitted shop drawings for door frames to the architect for approval and these show drawings did not have cutouts which would be required for the installation of the security devices. The architect approved the shop drawings and failed to mention the lack of cutouts for these devices. Likewise, the electrical wiring riser diagram submitted by the contractors for approval did not show installation of wiring for the security system. The contractors maintain that this indicates that even the architects did not consider the building security subsystem to be part of the base bid until the issue was put before it for resolution under the contract which required an architect's decision before going to hearing. No weight can be given to the architect's denial of relief in this case, particularly since the dispute is about specifications drawn up by the architect. On the other hand, the Department of General services maintains that the above examples are minor events which are not conclusive of anything. The Department of General Services points out several items in other parts of the contract specifications which can be interpreted as consistent with their interpretation of Alternate No. 7. The only real issue to be determined in this matter is whether Alternate No. 7, above quoted, is ambiguous. If it is, then the contractors may have established a right to recovery. If not, they have no valid basis for a price adjustment. After carefully reviewing and evaluating the evidence and testimony at the hearing it is the conclusion of this Hearing Officer that alternate No. 7 is ambiguous. Ambiguity is generally considered to be the use of words which are susceptible of more than one meaning. From a fair reading of Alternate No. 7 it is impossible to tell whether it relates only to the Governor's suite or the entire complex. Although the architect and its agents express no difficulties in understanding Alternate No. 7 and although it was their intention to apply said alternate to the Governor's suite, it is susceptible to more than one interpretation. The work in question is presently being performed and the parties have agreed that any price adjustment will be determined by the eventual outcome of this proceeding. In this case the specifications and contract were drawn up by the architect-engineer, Edward Durell Stone and Reynolds, Smith and Hills, working with the Department of General Services. Their relationship with the Department of General Services was one of agent-principal so that their acts or omissions will bind the Department of General Services. The wording of Alternate No. 7 had been interpreted differently by the owner and the contractors. Both interpretations appear to be reasonable in light of the ambiguous wording of this specifications. No evidence was presented at this hearing to demonstrate with any degree of certainty that either interpretation is faulty or rest upon an obvious error. In this type situation the law is abundantly clear that the contract specifications will be interpreted against the draftor and in favor of the contractor. WPC Enterprises, Inc. United States, 232 F. 2d 874 (1963) Ct. C1. (1964). As stated above, the Department of General Services, it architects, and engineers intended Alternate No. 7 to be applied only to the Governor's suite, however, they did not adequately convey this meaning to the contractors and because of this ambiguity the contract must be interpreted in a fashion least favorable to them. See American Agrinomics Corp. v. Ross, 309 So.2d 584, Tanner v. Equitable Life Ins. Co. of Washington, D.C., 303 So.2d 352. The Department of General Services does not differ as to the possible applicability of the above rules of contract interpretation, however, it maintains that because of other contract provisions such rules of law do not apply in this case. Specifically, the Department refers to Article 4.1 of the contract entitled Instructions To Bidders. This contract section contains an express warning to bidders that they have a legal duty to read the bidding documents carefully and inquire in writing of the architect at least seven days before bids are received for the interpretation or correction of any ambiguity, inconsistency or error in the specifications. The Department of General Services cites authority for the proposition that the above contract clause has imposed a duty upon the contractors to have ambiguities clarified before they submitted their bids. Failing to do so they are now barred to present a claim based on a claim of ambiguity. "A prime purpose of these contractual provisions relating to ambiguities and discrepancies is to enable potential contractors (as well as the Government) to clarify the contract's meaning before the die is cast. The bidder who is on notice of an incipient problem, but neglects to solve it as he is directed to do by this form of contractual preventive-hygiene, cannot rely on the principle that ambiguities in contracts written by the Government are held against the drafter (e.g. Peter Kiewit Sons Co. v. United States, 109 Ct. C1. 390, 418 (1957). Even more, the bidder in such a case is under an affirmative obligation... We hold that (when a contractor) is presented with an obvious omission, inconsistency, or discrepancy of signifi- cance, he must consult the Government's representative if he intends to bridge the crevasse in his own favor ..." Beacon Construction Company of Massachusetts v. The United States, 314 F. 2d 501 (U.S. Ct. C1. 1963). This Hearing Officer finds that the above quote of authority is an accurate interpretation of the applicable law, however, there was no evidence which was presented at this hearing indicating the contractors had any questions regarding the interpretations of Alternate No. 7 at the time they submitted their bid. It is the opinion of this Hearing Officer that the Department of General Services cannot avail itself of the provisions of article 4.1 of the contract unless there was some evidence at this hearing which would indicate the contractors were aware of the ambiguity at the time they prepared their bid and failed to get a written interpretation from the architect. The evidence in this case clearly indicates that the owner-architect and the contractors proceeded under different interpretations of Alternate No. 7 and were unaware of the other party's position until it became apparent by the work being performed that there was a disagreement among the parties. In the absence of the contractor being aware of a problem and not seeking to solve it, the Department of General Services cannot use Article 4.1 of the contract to hold themselves harmless for defects in its draftsmanship. Were it otherwise the Department could avoid liability for every disagreement involving contract interpretation by using such clause as a blanket defense. Such a result would put bidders at their peril every time a contract became subject to a varying interpretation.
Conclusions It is therefore concluded that the clause in question, Alternate No. 7 is ambiguous and that the contractors were not unreasonable in interpreting it so as to exclude items in the building security subsystem found in Schedule 16707. The ambiguity should be resolved against the owner as it has not demonstrated knowledge or such neglect on the part of the contractors to avail itself of Article 4.1 of the contract. It is therefore RECOMMENDED the contractor be compensated on a quantum meruit basis for the work being performed under dispute. DONE and ENTERED this 20th day of December, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bernard S. McLendon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32304 Robert R. Feagin, III, Esquire Holland & Knight P. O. Drawer 810 Tallahassee, Florida 32302 Patrick G. Emmanuel, Esquire Holsberry, Emmanuel, Sheppard & Condon P. O. Drawer 1271 Pensacola, Florida William J. Terry, Esquire 2713 First Financial Tower Tampa, Florida 33602
Findings Of Fact Petitioner owns property located at 530 Mandalay Avenue, Clearwater, Florida, on which a 14-unit, two-story hotel is located. The property is zoned CTF-28. The existing motel is non-conforming to the building and zoning regulations in the following specifics: Density. The zoning regulations allow 42 motel units per net acre. The property is now developed with a density of 70 units per net acre. Lot area. Minimum size lot on which a motel may be constructed is 10,000 square feet. This lot size is 8700 square feet. Setbacks. Required setback is 15 feet. The existing setback from public right-of-way is virtually zero and on the south and west sides the building is within five feet of the property line and stairways encroach into those areas. Impermeable surfacing. Maximum permissible impermeable surfacing is 75 percent of the property. At this site impermeable surfacing occupies 85 percent of the property. Parking. Regulations require 14 parking spaces. Here there are only seven spaces and some of those are located in the public right-of-way. Petitioner is requesting a variance to construct a storage/office building within three feet of the east property line and construct a roof and sundeck with zero clearance from the property line at Mandalay Avenue. Granting this variance will make the property more non-conforming than it is at present. Petitioner contends that the property will be upgraded if the variances requested are granted. No credible evidence was presented to justify the variances requested.
