The Issue The issue is whether Respondent undertook to act as a contractor without a license as charged in the Administrative Complaints, and if so, what disciplinary action should be taken.
Findings Of Fact Pursuant to Section 20.165, the Division of Professions is a subordinate unit of the Department of Business and Professional Regulation (the Department). The Department provides administrative support, including prosecutorial support to the Construction Industry Licensing Board (the Board), which is also located within the Department. Mr. Grandmont is not currently licensed as a State Registered or State Certified Contractor in this state, nor has he ever been licensed by the Board. Mr. Grandmont's last known address is 355 China Berry Circle, Davenport, Florida. He was provided notice of the hearing at that address, and at 7733 Park Road, Charlotte, North Carolina 28210, which is the address he used when demanding a hearing on disputed facts in two of these cases. In DOAH Case No. 06-3279, he provided no address in his demand for a hearing. All attempts by U. S. Mail to notify Mr. Grandmont of the hearing, were returned. Mr. Grandmont is deemed to have known of the time, date, and place of the hearing, and is deemed to have waived his appearance at the hearing. On November 11, 2005, subsequent to Hurricane Wilma, Robert L. Coe, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged mobile home. He provided a written estimate of $10,500. The estimate contained a list of 11 items requiring repair, and stated that he would accomplish the repair of them. He demanded a $4,200 down payment, which Mr. Coe provided in a draft drawn on Fidelity Cash Reserves, and dated November 11, 2005. Mr. Coe never saw Mr. Grandmont again. The repairs set forth in the written estimate were not accomplished. The draft, however, was negotiated by Mr. Grandmont. On November 12, 2005, subsequent to Hurricane Wilma, Joseph Webster, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to repair his damaged residence. Mr. Grandmont discussed charging $13,500 in return for repairing Mr. Webster's residence. After negotiations, Mr. Grandmont agreed to do it for $11,500. No written estimate or contract was prepared. Mr. Grandmont demanded $5,750 payment in advance. Mr. Webster rounded off the down payment to $6,000 and presented Mr. Grandmont an official check of the Taunton Federal Credit Union, of Taunton, Massachusetts, for that amount. The check was negotiated by Mr. Grandmont, but the promised repairs were not accomplished. On November 4, 2005, subsequent to Hurricane Wilma, Ella Arseneau, of Lake Worth, Florida, was contacted by Mr. Grandmont, who offered to replace her roof. He provided an estimate of $5,500 in return for repairing Ms. Arseneau's residence. He demanded that she pay $3,500 in advance, which Ms. Arseneau provided by presenting Mr. Grandmont a check for $3,500, drawn on an account in Wachovia Bank. The check was negotiated by Mr. Grandmont, but the roof was not repaired as promised. Mr. Coe is 78 years of age, Mr. Webster is 85, and Ms. Arseneau is 77.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation impose a fine upon Clifford Grandmont in the amount of $30,000. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Clifford Grandmont 7733 Park Road Charlotte, North Carolina 28210 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 Simone Marstiller, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent aided an unlicensed contractor to undertake a contracting job by obtaining or authorizing the obtaining of a permit using Respondent's licensure; and conducted business under a name not on his license and which he did not qualify, to wit: Quality Home Construction, in violations of Sections 489.129(1)(e), (g), (j) and (m) and 489.105(4) and 489.119, Florida Statutes. If these violations occurred, what administrative penalty should be imposed.
Findings Of Fact The Department of Professional Regulation, Construction Industry Licensing Board (Petitioner), is the state agency charged with the regulation of contractors in Florida. Gerald Bartlett, Respondent herein, is a registered general contractor, having been issued license number RG 0012112. Respondent's license was first issued in July 1973 qualifying, G.S. Bartlett, Inc., and said license was renewed and active during times material herein. Respondent is also an employee of Energy, Engineering and Research Corporation (EER), acting as superintendent and/or construction manager of various jobs. On or about July 8, 1987, Manual Rua and John Aviles entered into a contract whereby Rua agreed to provide certain remodeling services to Aviles for a total sum of $9,926.50, at a home which Aviles was in the process of purchasing at 3608 Gardenia Drive in Tampa. Pursuant to that contract, Rua acted as an agent for Aviles and Rua specifically disclosed his status as an individual without a contractor's license and therefore without the ability to pull building permits. (Petitioner's Exhibit 4). The contractual relationship between Rua and Aviles was consummated by them without Respondent's knowledge or participation. After Rua undertook the remodeling of Aviles' home, the City of Tampa Building Department issued a stop-work order on July 20, 1987 for lack of permits for the construction work Rua was performing on the Aviles home. Thereafter, Rua contacted Respondent to inquire whether Respondent would act as a consultant to Aviles on a remodeling job and assist in pulling a permit for the drywall, paint, door and window work, and to generally oversee the construction phase of the project. Respondent contacted his employer, EER, and EER, through its vice-president, Thomas Hebert, agreed to act as consultant for Aviles and instructed Respondent in the manner of obtaining the permits through EER. EER was not responsible for any electrical or plumbing work or for obtaining the permits for such work. EER, through its agent, Advance Construction Technical Services, Inc., pulled the permit for the drywall, paint, door and window work for the Aviles job. Respondent acted as construction manager for that phase of the project and as part of his employment responsibilities to EER, visited the work site approximately twice per week, gave instructions to Rua's employees, which instructions were followed including the advice of securing a load bearing wall which Rua and/or his agents had removed. While Respondent was overseeing the job as construction manager for EER, Rua asked Respondent to bid on other aspects of the project under his own general contractor's license. Respondent was awarded the job of repairing and extending a concrete pad, and for such work, Respondent pulled a permit under his qualified name G.S. Bartlett, Inc. That phase of the project was completed as contracted for and was done in a satisfactory manner. Respondent never obtained or authorized anyone to obtain a permit for anyone except his own qualified company for the separate concrete work. Respondent never engaged in business under the name of Quality Home Construction in connection with the Aviles remodeling job. In this regard, Respondent has known Manual Rua since their early childhood years. As a result of a long friendship between the two, Respondent and Rua considered embarking upon a business venture and in connection therewith, Rua initiated steps to form a partnership but this never formally came about. They did however, complete one construction project during the early 70's which lasted approximately 45 days, but they both realized that it was not profitable to continue that arrangement and it was disbanded. Respondent has never engaged in business under the name of Quality Home Construction in connection with any construction project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner enter a Final Order dismissing the Administrative Complaint in its entirety. DONE and ENTERED this 28th day of July, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1171 Rulings on Petitioner's Proposed Findings of Fact Paragraph 2 - Rejected as irrelevant to the issues posed in the Administrative Complaint, which alleges violation on Respondent's registered general contractor's license RG-0012112. Paragraph 5 - Rejected based on the determination in paragraph 3 wherein it was specifically determined that Respondent disclosed his status as an individual without any corporate affiliation. (Paragraph 3, Recommended Order.) Paragraph 8 - Rejected based on the determination that Aviles was in the process of purchasing the subject property. (Paragraph 3, Recommended Order.) Paragraph 9 - Rejected as irrelevant based on the determination in paragraph 4, Recommended Order, to the effect that the contractual relationship between Rua and Aviles was consummated without Respondent's knowledge or participation. Paragraph 11, last sentence, - Rejected as irrelevant for the reasons stated in paragraph 4, Recommended Order. Paragraph 12 - Rejected, irrelevant. (See paragraph 4, Recommended Order.) Paragraph 13 - Rejected, irrelevant. Paragraph 14 - Rejected, irrelevant. Paragraph 15 - Adopted as modified. (Paragraphs 1, 6 and 7, Recommended Order.) Paragraph 16 - Rejected, irrelevant. Paragraph 17 - Adopted as modified. (Paragraphs 5 and 6, Recommended Order.) Remainder rejected as irrelevant. Paragraph 20 - Adopted as modified. (Paragraph 5, first sentence, Recommended Order.) Paragraph 21 - Adopted as modified. (Paragraph 3, second sentence, Recommended Order.) Paragraph 22 - Adopted as modified. (Paragraphs 7 and 8, Recommended Order.) Paragraph 23 - Rejected as contrary to other findings. (Paragraph 4, Recommended Order.) Paragraph 24 - Adopted as modified. (Paragraphs 5 and 8, Recommended Order.) Rulings on Respondent's Proposed Findings of Fact Paragraph 9 - Adopted as modified. (Paragraph 9, Recommended Order.) COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Christy L. Hessler, Esquire 7522 North Fortieth Street Tampa, Florida 33604 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Fred Seely, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which 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: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of the requirements of chapter 489, part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Fla. Stat. Pursuant to section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for the violations set out in that section. At all times material to this case, Mr. Cote was a certified general contractor operating under License Number CGC006199 issued by the Construction Industry Licensing Board. Mr. Cote currently holds this license, and he has been a licensed general contractor since 1973. At all times material to this case, Mr. Cote was the licensed qualifying agent for JLC Enterprises, Inc. On January 12, 1995, Noel Mais, on behalf of Noel Mais Roofing, contracted with Judith Braun to re-roof property she owned located at 8914 Northwest 26th Court, Coral Springs, Florida. The contract price was $7,000.00, with $3,000.00 required as a down-payment, $3,000.00 to be paid after the roof was dried in, and $1,000.00 to be paid on completion of the project. Neither Mr. Cote nor JLC Enterprises, Inc., was a party to this contract. In late January, 1995, Mr. Mais approached Mr. Cote and requested that he apply for the necessary building permit from the City of Coral Springs. He provided to Mr. Cote a workers' compensation waiver and exemption, a Certificate of Insurance for general commercial liability insurance, and a Certificate of Competency issued by Broward County, Florida, with an expiration date of August 31, 1995. Mr. Mais also told Mr. Cote that he had submitted all of the papers necessary to register his Broward County Certificate of Competency with the state but had not yet received his registration. Mr. Cote relied on the documents and the representations of Mr. Mais regarding his registration status with the state. On or about February 1, 1995,1 Mr. Cote submitted an application to the City of Coral Springs for a building permit to re-roof property owned by Ms. Braun and located at 8914 Northwest 26th Court, Coral Springs, Florida, naming JLC Enterprises, Inc., as the contractor and identifying the estimated cost of the project at $7,000.00. Mr. Mais gave Mr. Cote $300.00 when he applied for the permit. Mr. Cote used $150.00 of this money to pay the permit application fee and $60.00 to pay for two re- inspections which had to be done on the roof. On or about February 17, 1995, the City of Coral Springs issued Permit Number 95-443.2 Mr. Mais commenced work on the project a few weeks after the contract was signed, but before Mr. Cote applied for the permit. According to Ms. Braun, Mr. Mais started "like gangbusters" and quickly stripped the old tiles off of the roof and applied the tar paper. After Mr. Cote agreed to apply for the permit, he told Mr. Mais not to work on the project until the permit was issued. According to Mr. Cote, Mr. Mais returned to work the day after the permit was issued and, the "next day," the job failed inspection because the nail spacing was not consistent with the new code. Mr. Mais re-nailed the roof according to code, but it failed re-inspection because the flashing was not painted. This was done, and the job passed a second re-inspection. Mr. Cote looked in on the job a couple of times after this and saw that nothing was being done. He contacted Mr. Mais and asked why he was not working on the project, and Mr. Mais told him that he was waiting for Ms. Braun to give him some money so he could buy the tiles. When Ms. Braun called Mr. Cote and complained that no tile had been delivered, he went to Mr. Mais's home and insisted that he "get some tile on that roof." The next day, Mr. Mais brought a load of tiles and piled them on the roof.3 Ms. Braun paid Noel Mais the $3,000.00 down-payment specified in the contract by a check dated January 12, 1995, the day the contract was executed. Then, notwithstanding the payment schedule stated in the contract, Ms. Braun paid Mr. Mais $3,000.00 by check dated January 25, 1995. She paid Mr. Mais the remaining $1,000.00 due under the contract by checks dated March 28 and 31, 1995, and April 13, 1995. After receiving full payment, Mr. Mais abandoned the job, and, when Ms. Braun told Mr. Cote she had paid Noel Mais in full for the job, Mr. Cote refused to finish the work because he had not received any portion of the payment. In November, 1995, Ms. Braun contracted with R. J. Chambers Roofing, Inc., to complete the work on her roof for $4,500.00. The work was completed, and she paid Mr. Chambers the contract price. The evidence presented by the Department is sufficient to establish that Mr. Cote knew that Mr. Mais was not registered with the State of Florida as a roofing contractor and that Mr. Cote stated on the permit application that his company, JLC Enterprises, Inc., was the contractor for the Braun re-roofing job even though he was not a party to the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order finding that Jacques Cote violated section 489.129(1)(e) and (n), Florida Statutes; imposing an administrative fine in the total amount of $1,000.00, consisting of a $500.00 fine for each of the two violations; assessing the costs of investigating and prosecuting the violations; and requiring Mr. Cote to make restitution to Judith Braun in the amount of $1,000.00. DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the construction industry within the State of Florida. At all times material to the allegations of these cases, the Respondent was licensed by the Department as a certified general contractor, license number CG C007009. Additionally, due to the time period from which the Respondent held his license he was "grand- fathered" to perform roofing construction. The Respondent was the qualifying agent of O. Benitez & Associates, Inc., a Florida corporation. On November 13, 1997, the Respondent executed a contract with Maricel Alayon to construct a terrace for a home located at 1215 West 82nd Street, Hialeah, Florida. While Ms. Alayon referred to the structure as a "terrace," it was to be a covered (roofed) open porch attached to her home at the rear of the property. The price for the addition was $14,125.00. The contract that was prepared by the Respondent for Ms. Alayon's signature did not contain the Respondent's license number or a written notice of the consumer's rights under the Construction Industry's Recoveries Fund. Ms. Alayon paid the Respondent the full $14,125.00 on or about November 17, 1997. Despite having been paid the full amount, the Respondent did not complete the Alayon project. The work was begun on or about November 27, 1997, but was never finished. Ms. Alayon did not fire the Respondent, did not refuse access to her property, and never refused to pay the Respondent monies owed for the work. Curiously, the Respondent obtained the building permit for the Alayon project on January 27, 1998. The Respondent never called for a final inspection on the job and, as of March 29, 2001, a final passing inspection for the project had not been performed by building officials. In addition to the contract amount, Ms. Alayon paid $3,575.00 for materials that were used in the construction of the porch. The Respondent did not reimburse Ms. Alayon for that amount. In May of 1998, the Respondent began negotiations with Mr. and Mrs. Piloto for the construction of an addition to their home to include an in-ground swimming pool. From the beginning of the talks, Mr. Piloto advised the Respondent that the couple could only invest $38,000 for the remodeling work as that was the amount the bank had approved for the project. The Pilotos wanted to build a bedroom, an expanded bathroom, and a swimming pool at the rear of their home located at 750 West 73rd Place, Hialeah, Florida. Eventually the Respondent telephoned the Pilotos to advise them that they could get what they wanted within the budget set by the bank. The contract executed by the Pilotos called for the remodeling for a price of $37,890.00. The contract, prepared by the Respondent, did not contain the Respondent's license number or a notice of consumer's rights pursuant to the Construction Industries Recovery Fund. At all times material to the Piloto project, the Respondent did not hold a valid architect's license. In fact, in December of 1997, the Board of Architecture and Interior Design had fined the Respondent for having practiced architecture with a delinquent license. Nevertheless, the Respondent represented himself as an architect to the Pilotos and charged them for blueprints for the remodeling project. Moreover, the Respondent submitted the signed and sealed plans for the Piloto project to the Building Department in order to obtain a building permit for this project. Such plans were filed on or about August 12, 1998. Pursuant to their agreement with the Respondent, the Pilotos paid the Respondent a total of $26,664.00 for the project. In comparison, the value of the work performed by the Respondent did not exceed $10,000. The Respondent asked the Pilotos to increase the amount for the contract to $50,395.75, but they refused. Despite the fact that he had caused their home to be reduced to a dangerous condition (by virtue of exposed wiring and open walls), the Respondent refused to complete the work on the Piloto project for the contracted amount. Instead, he abandoned the project. The Pilotos did not fire the Respondent. They refused to increase the amount of the contract. The Pilotos did not stop the work or refuse workers access to the property. A lien was placed on the Piloto property by a subcontractor to whom the Respondent owed monies. The Pilotos were required to pay the subcontractor in order to satisfy the lien amount. The Respondent has failed or refused to repay the lien amount. The Respondent grossly under estimated the cost of remodeling the Piloto home. He did so either negligently or intentionally. The Piloto home was compromised by the demolition work done by the Respondent's crew. The Pilotos were faced with paying the additional monies to comply with the Respondent's demand or living with their home in an uninhabitable condition. They chose the latter. On or about May 11, 1999, the Respondent applied for and obtained a building permit to re-roof the home of Sam and Daisy Carpenter. The contract for the work was with Banos Remodeling Services, an unlicensed entity, not the Respondent or his company. The Respondent has been the subject of prior disciplinary actions filed by the Department. He settled such actions without admitting or denying the allegations against him. As to his architectural license, it is undisputed that at all times material to these cases, the Respondent did not hold a valid architect's license. The Petitioner has incurred expenses and costs in the investigation of and the prosecution of the instant cases against this Respondent. The Respondent provided no credible explanation for the failure to complete the work contracted for regarding the Alayon and Piloto homes.
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 sustaining the violations outlined by the Conclusions of Law, imposing an administrative fine in the amount of $5000.00, requiring the Respondent to make restitution to the Pilotos and Ms. Alayon, requiring the Respondent to remit the costs of investigation and prosecution of these cases, and revoking the Respondent's license until all amounts are fully paid. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. ______________________________ J. D. PARRISH 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 23rd day of October, 2001. COPIES FURNISHED: Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2201 Oscar S. Benitez 3894 Southwest 107th Avenue Miami, Florida 33165 Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128-1765
Findings Of Fact Based upon the testimony and documentary evidence presented the following facts are found: At all times material hereto, Respondent, Thomas Hebert, was a licensed contractor in the State of Florida, having been issued license number CG- C006542, by the State of Florida, and was the qualifier of Engineering & Environment Research Corp., (EER). On or about July 7, 1987, John M. Aviles entered into a contract with Manuel Rua to do a remodeling job on Mr. Aviles' home located at 3608 Gardenia, Tampa, Florida. The total cost of the remodeling under the contract was $9,926.50. The contract provided that all permits required would be obtained by Mr. Aviles. Prior to entering into the contract, Mr. Rua advised Mr. Aviles that if permits were needed, that Mr. Rua was a silent partner in a construction company and could provide any construction permits required. At all times pertinent hereto Mr. Manuel Rua, was a retired builder, was not licensed in Florida and not employed by EER or Thomas Hebert, individually. Rua proceeded with the construction pursuant to the contract. However, on or about July 20, 1987, the Tampa Building Department halted the job for lack of a building permit, lack of a plumbing permit and lack of an electrical permit. Before the job was shut down, Rua and the other workers had done plumbing and electrical work, replaced walls, done framing, glazing and sheetrock work. At all times pertinent hereto Gerald S. Bartlett was a full-time employee of EER, working at another construction project. At all times pertinent hereto, Respondent was the owner of and qualifier of EER. Shortly after July 20, 1987, Mr. Rua contacted Mr. Bartlett and told Bartlett that the job was red tagged because of no permit. Rua wanted Bartlett to pull the permit to allow the work to continue. At that time, Bartlett could not personally pull the permit because he was registered in Hillsborough County, but not in the City of Tampa. Bartlett then called the Respondent about the job and described the job to Respondent. Respondent advised Bartlett that EER would help Aviles out by getting the building permit if Bartlett would be responsible for the construction and if Aviles (not EER) paid Bartlett for his time and if Aviles would sign a letter agreeing that EER was responsible only to inspect and consult and further agreeing to hold EER harmless. Bartlett then arranged for the building permit for the Aviles job which was subsequently applied for and issued to EER on July 24, 1987. On July 23, 1987, Rua informed Aviles that arrangements had been made for the permitting and that the permitting would cost an additional $344.00. Rua further advised Aviles that in order for the permitting to go through, Aviles would have to give the building contractor a hold harmless agreement. On July 24, 1987, Aviles paid Rua the sum of $344.00 for the permit, by check. Rua cashed the check and left the cash on the counter at Mr. Aviles' residence which was picked up by Mr. Bartlett. Mr. Bartlett and the Respondent shared that money. The only money paid to Bartlett from anyone (including EER) for the Aviles job came from Aviles on that occasion. Respondent did not receive any additional money from the Aviles' job from anyone. On July 25, 1987, Mr. Aviles signed the agreement which indicated that EER had been retained as a consultant to permit, advise and inspect the remodeling being done. The agreement is not signed by anyone from EER nor does it contain the Respondent's contractor's license number. The agreement provides that EER was not financially responsible for any of the work, nor for liability on the job. Prior to July 25, 1987, Mr. Aviles did not have any other agreement with EER. Until October, 1987, Mr. Aviles had never met or spoken with the Respondent, Mr. Bartlett or any other representative of EER. At all times pertinent hereto, no one employed by EER worked on the Aviles remodeling job. Subsequent to the permit being issued, work began again and continued until on or about September 28, 1987. Construction was again halted for lack of electrical and plumbing permits by the City of Tampa. Between July 25, 1987, and September 28, 1987, Rua and his workers did a substantial amount of work in the house. During this period of time, Mr. Bartlett appeared on the job approximately ten times, but Mr. Rua was in charge. Mr. Bartlett never did any work, but did try to supervise on occasion. The Respondent visited the jobsite approximately two times, stopping by after working hours looking through the windows from the outside and, therefore, did not supervise the jobsite. Essentially between July 25, 1987, and September 28, 1987, Mr. Rua and his employees continued doing all the work, just as they did before the permit was pulled by EER. On October 7, 1987, Aviles argued with Rua about the permits and the delay in construction. Rua left the job, removing EER's building permits from the window, along with a concrete permit. Thereafter, Aviles attempted to contact other contractors to complete the work, but was unable to do so since no one wanted to take a partially finished job which had been red tagged. On October 16, 1987, Aviles met Respondent and Bartlett (for the first time) at the jobsite and both assured Aviles that whatever assistance was necessary to complete the job would be provided. Neither the Respondent nor Mr. Bartlett offered to complete the job, but furnished Mr. Aviles a list of subcontractors who would supposedly complete the job. At this point in time, no part of the job had been completed, but most all of the work had been started and was nearly complete. The Respondent at this time advised Mr. Aviles that he would retrieve the permits so that Aviles could continue the remodeling. The permits were subsequently returned and the Respondent offered to allow Mr. Aviles to continue using the Respondent's permit for construction even though neither Respondent nor any of his employees would be on the jobsite. Mr. Aviles subsequently determined that the work performed by Mr. Rua was not acceptable, and thereafter, he had most of the work redone using other subcontractors. The permit applied for by EER indicated it was for non-structural general repairs. The permit issued to EER allowed both structural and non- structural repairs to be done since EER was a general contractor. The work done under the permit issued to EER was both structural and non-structural. Inspections were required and on this job, the general contractor, EER, was required to notify the City when inspections were required. No inspections were ever called for by EER because both Respondent and Bartlett did not think any were required. Under the permit issued, the general contractor, EER, and the Respondent were required to supervise the work. The work done by Rua and the Latyvs, under EER's permit, was required to have been performed by an employee(s) of EER who was paid by EER which did not occur. When EER pulled the building permit, it could not limit its role to supervision only. A licensed building contractor can agree to do supervision only, but not when the contractor pulls the building permit. The Respondent is a very experienced contractor who at all times mentioned herein not only was a certified general contractor, but was a certified roofing contractor, certified mechanical contractor and certified pool contractor in the State of Florida. He has also written portions of the general contractor's examination. The Respondent knew or should have known that there is a difference between a licensed contractor agreeing to supervise a construction job and a licensed contractor pulling the permit for a construction job and then trying to limit his liability to supervision only and not assuming any financial responsibility for the work done.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Assessing the Respondent an administrative penalty of $1,000 for aiding and abetting evasion of Chapter 489, Florida Statutes, in accordance with disciplinary guidelines set forth in Section 21E-17.001(13), Florida Administrative Code. Assessing the Respondent an administrative penalty of $1,500 for misconduct in the practice of contracting by failure to supervise, thereby causing monetary harm to the customer. This is in accordance with disciplinary guidelines set forth in Section 21E-17.001(19)(b), Florida Administrative Code. DONE AND ENTERED this 19th day of June, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings 1-10. Accepted 11-12. Rejected as irrelevant. 13-36. Accepted in substance. Respondent's Proposed Findings 1-3. Accepted 4. Rejected as unsupported by the evidence 5-18. Addressed Rejected as a conclusion of law. Respondent's letter with attachments, dated June 1, 1989 is rejected as improper submission of documentary evidence. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Michael Steinberg, Esquire 601 Twiggs Street, Suite 201 Tampa, Florida 33602 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Bruce Lamb, General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0760 =================================================================
Findings Of Fact Roger Newbold was employed by Allen Electric Company, Inc., as a laborer working on its contract with the State. Newbold was employed during two different periods. The first time was prior to January 1, 1977, and the second, from March 13, 1977, to May 22, 1977. The addition to the Polk County Correctional Institution was bid in two phases; the first for heavy construction for site preparation, and the second, the actual building construction. Allen Electric Company, - Inc., had a contract from the general contractor during the first phase to install the main electrical distribution facilities on the site. All of this work was not associated with and carried on prior to the commencement of building construction. The heavy construction was in progress during Newbold's first period of employment with Allen Electric Company, Inc. Allen Electric Company was also a subcontractor with Delta Electric Company on the second phase of construction; however, Allen Electric Company did not do any building construction. They subcontracted with Delta to install secondary distribution lines and perimeter fence lighting on the site. See Delta Electric Company contract, late filed exhibit No. 7. Allen Electric Company did not go into the building with their workmen because their contract called for them to stop five (5) feet outside the building with the secondary distribution lines. All work and wiring done from this point into the building was carried on by Delta Electric. Newbold's job during his entire employment with Allen electric was to dig ditches and lay conduit. The conduit runs then were reinforced with concrete poured over reinforcing steel. During his entire employment, he was involved in digging the necessary ditches, setting the reinforcing rods, and pouring the concrete. The rate for heavy construction laborers under wage rate 398-W filed as a portion of late filed exhibit No. 7 was three dollars and thirty-six cents ($3.36) per hour. The wage rate for laborers working on building construction pursuant to wage rate 397-W also filed as a portion of late filed exhibit No. 7 was six dollars and fifteen cents ($6.15) per hour. Wage scale 397-W specifically states that it is applicable to nonresident building construction. All of the skills listed on the wage rate apply specifically to building construction except the general term "laborer." The record shows that the work done by Allen Electric Company, Inc., in the building construction phase was the same type of work undertaken by Allen Electric in the heavy construction phase. In both phases, Newbold was engaged in exactly the same duties. Newbold did not work on building construction but on laying conduit for secondary distribution systems and perimeter lighting systems during the second phase. All of this work took place outside of the building.
Recommendation The Hearing Officer recommends that the claim of Roger Newbold be dismissed by the agency. DONE and ENTERED this 5th day of 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marvin Woods, Esquire 440 S. Florida Avenue Post Office Box AR Lakeland, Florida 33801 David A. Perry, Esquire Corporate Officer Allen Electric Company, Inc. 1271 LaQuinta Drive Orlando, Florida 32809 Mr. Luther J. Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive Fast Tallahassee, Florida 32301
