The Issue The issue is whether Petitioner’s application for certification as a plumbing inspector should be granted.1/
Findings Of Fact Respondent is the executive branch agency within the Department of Business and Professional Regulation (DBPR) charged, among other duties, with administering part XII, chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors. On March 8, 2013, Petitioner submitted an application to the Board for initial certification by examination as a plumbing inspector. The application included sections for Petitioner’s personal information, method of qualification for certification, employment history, education, background information, affidavits of work experience, and an affirmation by written declaration executed by Petitioner.5/ The Board has an application review committee (ARC) composed of code enforcement professionals. One of the requirements that the ARC had to determine was whether Petitioner had clearly demonstrated five years of experience related to plumbing in order to be approved for the examination. Such experience could have been broken down into having done plumbing, inspected plumbing, or performed plumbing plan reviews. Petitioner submitted several affidavits to establish the requisite five years of experience necessary to qualify for the plumbing inspector certification examination. The instructions in “Section VIII-Work Experience” provided: 6/ This section must be completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the applicant’s experience for the period of time listed below. Instructions: Provide employment verification for the years of experience required for qualification for certification. Attach additional copies of this page as necessary. Note: Local Government Employees- To qualify for the fee reduction local government employees must provide Work Experience showing current employment with a local government agency that is signed by the building code administrator. * * * Describe in detail the applicant’s duties, including hands-on, supervisory or management responsibilities. Please be specific when explaining the applicant’s duties and hands- on experience. Mr. Thorne, the current Longboat Key building official, has supervised Petitioner for approximately two years, the length of his employment with Longboat Key. Petitioner submitted an affidavit by Mr. Thorne to demonstrate Petitioner’s work experience. Mr. Thorne’s affidavit did not provide the specific duties and hands-on experience to reflect the required plumbing experience. Mr. Thorne did not provide any additional supportive information during his testimony. J. Kent Kimes, the president of Kimes Engineering/Southwest Florida Building Inspections, and Harry R. Fowler, the former Longboat Key building official, both provided affidavits purporting to support Petitioner’s application. Neither affidavit described in specific terms Petitioner’s experience, job duties or overall knowledge of the plumbing trade. The affidavits did not provide the necessary information to support Petitioner’s application, nor did they accurately reflect the time of their respective supervision of Petitioner. Petitioner is employed by a public entity, the City of Longboat Key. The Board has issued him several licenses including: “a standard plans examiner’s license with the endorsements of electric and mechanical and plans examiner;” and “a Florida standard inspector’s license . . . with the endorsements for building, commercial electric; 1 and 2 family dwelling inspector; mechanical inspector, which would be commercial; and residential electrical inspector.” However, the experience required for these licenses could not be used to appropriately demonstrate how much experience Petitioner had in the plumbing trade. At all times material, Robert McCormick was the Board’s Chairman, and a member of the ARC. Mr. McCormick is a master electrician, a certified building official, a certified building code administrator, a plans examiner, a plans inspector and a member of the Council of the American Building Officials. He was tendered as and accepted as an expert. Each construction trade has a specific and complex code of regulations. Inspectors in each category must ensure compliance with that trade’s regulations. Plumbing inspectors must be versed in both residential and commercial construction codes. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. Both the ARC and the Board were looking for affidavits that showed specific expertise in the plumbing trade category, not just experience in a general sense. The Board denied Petitioner’s application for certification as a plumbing inspector because his application: [d]oes not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator that you have the required experience for the certification sought.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Building Code Administrators and Inspectors Board issue a final order denying Petitioner’s application for certification as a plumbing inspector. DONE AND ENTERED this 27th day of August, 2014, 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 27th day of August, 2014.
The Issue The issues in this case are: Whether Mr. Decker had an improperly maintained septic system on his property. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.
Findings Of Fact On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of June 20, 1997 to make the needed repairs. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place." Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue a final order affirming the civil penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue Whether Petitioner may be granted provisional certification as a plumbing inspector and provisional certification as a mechanical inspector.
Findings Of Fact Respondent Florida Building Code Administrators and Inspectors Board (Board) is the executive branch agency, within the Department of Business and Professional Regulation, charged, among other duties, with administering Part XII, Chapter 468, Florida Statutes, and issuing standard and provisional certification of plumbing inspectors and mechanical inspectors. The Board denied Petitioner’s applications for provisional licensing as a plumbing inspector, and as a mechanical inspector, because his application(s) “does not demonstrate, affirmed by affidavit signed by an architect, engineer, contractor, or building code administrator, that you have the required experience for the certification sought.” At all times material, Robert McCormick was Respondent Board’s Chairman. The Board considers applications for, and licenses applicants as, building inspectors, plans examiners, and building code administrators. Such personnel usually work with municipal, county, or state entities, although in some places private contractors provide such services. Licensees review proposed construction plans of both residential and commercial projects as well as monitor the progress of construction to assure that all building code standards are met. Each construction trade has a specific and complex code of regulations. Inspectors in each category must assure compliance with that respective trade’s regulations. Most of the work of an inspector is performed in the field at a job site. Plumbing and mechanical inspectors must be versed in both residential and commercial construction codes. The mechanical trade is, at minimum, concerned with heating, air- conditioning, and ventilation systems. The plumbing trade is, at minimum, concerned with water systems, drains, pipes, and gas. At hearing, Petitioner submitted no information whatsoever about his experience in these areas, and relied exclusively upon his application affidavits. Petitioner is employed by a public entity, the City of Deland. The Board has issued him a provisional license as a building inspector. As a building inspector, Petitioner reviews structural and non-structural aspects of construction for one- and two-family dwellings, as well as means of egress and accessibility, but he does not address specific systems or codes, such as plumbing and mechanical, within the structure to assure compliance with the Florida Building Code. Petitioner has already taken and passed both the Florida-required test for standard plumbing inspector certification and for standard mechanical inspector certification. Mr. McCormick, testifying on behalf of the Board, acknowledged Petitioner’s successful test results, but considered Petitioner’s passing the examination to be the last statutory requirement time-wise (or just one of the statutory prongs) for obtaining the standard license. For provisional licenses, the Board still requires five years’ experience as specified by statute for each specialized field (plumbing and mechanical) to be attested-to by adequate affidavits. (TR-69) By virtue of having a provisional building inspector certification issued by the same Board involved with the present applications, Petitioner has already demonstrated, via affidavit, five years’ experience in general building construction. As part of his application(s) for the plumbing and mechanical inspector provisional licenses, Petitioner submitted two affidavits of his current employer and six affidavits from others with knowledge of his work experience. Some of these affidavits also had been used by Petitioner in applying for his building inspector license. The affidavits were signed by engineers, building code administrators, and/or licensed contractors, and account for Petitioner’s work experience from 1988 to the present, most of which experience occurred in Ohio. The affidavits purport to describe, in general terms, Petitioner’s experience, job duties, and overall knowledge of the plumbing and mechanical trades during that time frame. The Board has created an Application Review Committee, consisting of Board members, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Mr. McCormick was on the Application Review Committee which reviewed Petitioner’s application on October 14, 2008, and recommended against Petitioner’s provisional licensure in the plumbing and mechanical trades. There is no persuasive evidence that the Application Review Committee made any direct inquiries of Petitioner’s affiants to supplement their affidavits or that it was required to do so. There is no evidence that Petitioner was notified of the Application Review Committee’s meeting or that the law requires that Petitioner be notified of it. However, Petitioner was notified, according to law, of the Board’s meeting on October 17, 2008, when a vote was taken and his pending mechanical and plumbing applications were denied, effective with the Board’s October 30, 2008, Intent to Deny. There is no evidence that Petitioner was present or offered any additional information at the Board’s meeting to support his application(s). According to Mr. McCormick, Petitioner’s affidavits did not describe Petitioner’s work experience in sufficient detail for the two respective categories of inspector. Overall, Mr. McCormick felt all of Petitioner’s affidavits for plumbing and mechanical provisional certification were not specific in the two categories chosen. The Application Review Committee and the Board were looking for affidavits that showed discrete and significant expertise in each trade category, not just experience as a general contractor overseeing other experts in those trades and systems. Petitioner previously had been a general contractor and a licensed Ohio Real Estate Corporate Salesperson. Petitioner’s status as a general contractor in Ohio was insufficient, according to Mr. McCormick, because nothing in the affidavits correlated the licensure of general contractors in Ohio with licensure of general contractors in Florida for purposes of trade category licensing and because Petitioner had already received credit for his prior general contracting experience via his Florida provisional building inspector license. (See Finding of Fact 9.) Mr. McCormick specifically addressed some of these affidavits at hearing. He indicated that the affidavit of Matt Adair, a building official in Deland, Florida, was vague as to five years of the necessary mechanical or plumbing experience, but that it had been accepted by the Application Review Committee as the public employer’s intent to utilize Petitioner for commercial plumbing and mechanical inspections if Petitioner were provisionally licensed in those categories. An affidavit by Jim Ziegler, an Ohio building official, spanned 20 years, and addressed Petitioner’s success in commercial plumbing, masonry, and HVAC (an air-conditioning/mechanical trade), only because of Petitioner’s “hands on” workmanship and supervisory skills as a general contractor in Ohio. The affidavit of Frank Pirc covered 1996-2006, and only described Petitioner as a supervising general contractor with good knowledge of commercial and residential cooling systems. The affidavit of John Bogert, a general contractor, was very specific for plumbing for 1995- 2006, but in Mr. McCormick’s view, Mr. Bogert’s affidavit was unacceptable because it conflicted with an employment history submitted by Petitioner in the same application file. (See affidavits for correct name spellings, rather than the Transcript, which uses phonetic spellings.) Mr. McCormick further stated that no affiant actually identified the period of full-time employment that Petitioner worked in each trade category. Mr. McCormick acknowledged that Petitioner had demonstrated 20 years’ experience in general building, which encompasses some plumbing and some work in the mechanical trade, spread out over that 20-year time frame. However, he testified that the Committee and Board were looking for evidence, via affidavit, that the applicant had a minimum of five years solely dedicated to each trade or five years of full-time work experience in plumbing and five years of full-time work experience in a mechanical trade, not just five years’ total experience based on the applicant’s time in both trades added together. Moreover, in his opinion on behalf of the Board, 20 years as a building contractor had already been acknowledged with the granting of Petitioner’s provisional building inspector’s license. To illustrate his foregoing analysis, Mr. McCormick divided five years into average full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year long period of employment, but he did not specify that the Committee or Board was adding up full-time work hours to otherwise modify the five years per category requirement of the statute or to alter any Administrative Code rules. Mr. McCormick summed-up problems the Committee and the Board had with Petitioner’s affidavits, saying they showed that Petitioner “did a lot of things over 20 years . . . [but] It is not incumbent on the Board to figure out which part of those 20 years to assign to which trade.” (TR-65) Mr. McCormick acknowledged that, added together, the affidavits submitted by Petitioner covered 20 years of employment, but he further testified that the Committee and Board were looking for affidavits which showed an applicant’s specific duties by trade category, covering specific times/dates, which specific times/dates amounted to five years for each category of building trade.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Building Code Administrators and Inspectors enter a Final Order denying Petitioner’s applications. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 12th day of June, 2009.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent George W. Morrison was a registered residential contractor holding license number RR 0021945. On April 28, 1979, respondent entered into a contract with T. Joseph Feeney to construct a residence and pool on Sanibel Island "according to plans and specifications approved and signed by both parties" for the sum of $100,200.00. Construction on the residence was begun by respondent in late August, 1979. In January, the Feeneys desired to move into the home because they were having difficulty locating rental property. At that time, construction was not completed and neither a final inspection nor a Certificate of Occupancy had been obtained. Although construction had not yet been completed and respondent advised Mr. Feeney that it would be against the law to move into the house before a Certificate of Occupancy was obtained, Mr. Feeney and his family moved into the house on or about January 12, 1980. During the first week of occupancy, Mr. Feeney noticed that there was a sag in the bearing wall of the kitchen and that the house "swayed considerably." According to Mr. Feeney, after he was advised by Mr. Benson, a structural engineer, to either move out of the house or to "shore the house up, he attempted to contact the respondent. Mr. Feeney could not recall whether this occurred in late January, February or March of 1980. Being unable to contact the respondent, Mr. Feeney found his carpenter, Doug Hale, and explained the problem to him. Hale saw respondent that same day and respondent instructed Hale and his crew to go out to the Feeney residence that afternoon and shore the house up. Mr. Hale did notice a deflection and observed that one span was sagging down a small amount. He observed that the bridging work had been nailed from the top and recalled that the bottom nailing was to be performed after the house had settled. When performing the preventive shoring, Mr. Hale noticed that the bolts had been properly installed with washers. The bolts would have been retightened after the wood had dried and before calling in for a final inspection. Upon learning of the structural deficiencies in the Feeney residence, respondent hired his own structural engineer, Charles Wunder, and took the plans and specifications for the Feeney residence to him. Mr. Wunder found that the original drawings, plans and specifications caused the deflection problem in that the framing members used for the ledger beams were not of sufficient strength to hold up in the area where they were placed. Wonder's remedial plan was to use additional beam supports and steel flitch plates. He so advised the respondent by a letter dated February 12, 1980 and an attached sketch for the remedial work. After receiving Mr. Wunder's plans to remedy the structural defects, respondent ordered the steel plates and had them delivered to the Feeney residence. When respondent went there to perform the work, Mr. Feeney informed him that he wanted the work performed according to Mr. Benson's plans and blueprints. Benson's plans were much more involved and extensive, and respondent did not have the materials available to perform the work. Thereafter, an impasse occurred between Mr. Feeney and the respondent as to the manner in which the structural remedial work should be performed, and respondent was terminated by Mr. Feeney on or about April 13, 1980. Both respondent and his engineer, Mr. Wonder, believed that Mr. Benson's plans were "overdesigned" and massive compared to what needed to be done to make the residence structurally sound. Respondent testified that his engineer's plans for remediation would result in a cost of about $1,000.00. Mr. Feeney testified that he incurred costs of approximately $21,000.00 to have the remediation work performed according to Mr. Benson's plans. There was evidence that at least a portion of this figure was attributable to decorative and swimming pool work, as opposed to structural work. In late February or early March, 1980, after the preventive shoring had been completed by Doug Hale, the Building Official for Sanibel, George E. Blain, inspected the Feeney residence at Mr. Feeney's request. Mr. Blain found that the flooring and joist system had been installed according to the plans and specifications submitted and approved for the building permit. He could not give an opinion as to the cause of the deflection of the beams, but felt that there appeared to be a problem with the construction which could be corrected in the normal construction phase. A violation of the Southern Standard Building Code would occur only if the problem were not corrected at the time of final inspection, and this project had not yet been called up for such final inspection. While Mr. Blain found that some of the bolts were not properly placed or tightened at the time of his inspection, he found nothing to indicate that the required number of nails were not in place. After his inspection, Mrs. Blain wrote a letter to the respondent expressing his opinion that extensive remedial work was necessary to stabilize the floor support system of the Feeney residence. Respondent was instructed to have a registered engineer examine the floor support system and submit a report detailing the requirements necessary for loads stability. This report was to be received by Mr. Blain's office prior to the commencement of any corrective work by the respondent. Mr. Blain never received a response from the respondent to his March 5, 1980 letter. Respondent explained that he did not receive this letter from Mr. Blain until some time near the time that he and Mr. Feeney had reached an impasse situation with regard to the manner in which the remedial work was to be done. He therefore did not respond to Mr. Blain's letter because he did not believe that he would be performing the work.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against George Morrison on March 8, 1982, be DISMISSED. Respectfully submitted and entered this 10th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street (Suite 204) Tallahassee, Florida 32301 Allan T. Griffith, Esquire Griffith & Griffith, P.A. 9150 S. Cleveland Ave. (Suite 1) Ft. Myers, Florida 33907 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue to be determined is whether Respondent held himself out as a certificate holder in violation of section 468.629(1)(a), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of building code administrators and inspectors pursuant to section 20.165 and chapters 455 and 468, Part XII, Florida Statutes. At all times material to the allegations in this case, Respondent was licensed as a standard inspector in Florida, having been issued license number BN 5106. Respondent also held provisional licenses as a plumbing inspector and a mechanical inspector. Both licenses expired on January 24, 2009. Respondent's license as a standard inspector did not permit him to perform plumbing or mechanical inspections. Therefore, after January 24, 2009, he was not authorized to perform them. From February 3, 2003, to October 20, 2009, Respondent was employed by Wakulla County as a building inspector. The Wakulla County Building Division uses inspection cards to track information related to permits and inspections on permitted building projects. While these information cards are not required by state law, the information is a useful tool for the building division and inspectors were expected to complete them. An inspector's initials next to a particular inspection on an inspection card indicate that the inspector identified by initials performed the applicable inspection. If an inspector fails to sign the card when an inspection is completed, the card might be updated by another inspector who, after confirming the inspection had taken place, would initial for the other inspector and then put his or her own initials in parenthesis. For example, if Respondent conducted a framing inspection, he would identify the type of inspection in the "type" column and in the column titled Inspect., would put OKRN. If he failed to sign the inspection card and someone confirmed that he had performed the inspection, the notation would read, OKRN (CI). A permit was issued for a mechanical upgrade at an existing church located at 953 Sopchoppy Highway. On April 23, 2009, Respondent signed the inspection card indicating that he had performed the re-inspection of the project. A permit was issued on March 31, 2009, to install plumbing in an existing commercial building located at 2500 Crawfordville Highway. Respondent signed the inspection card for two separate inspections: the rough slab on April 1, 2009, and the final inspection on July 29, 2009. On April 23, 2009, a permit was issued to install plumbing in existing restrooms at a building located at 1362 Old Woodville Highway. On April 24, 2009, Respondent signed the inspection card indicating that slab plumbing inspection had been performed and the work had passed inspection. On June 22, 2009, a permit was issued to install plumbing for a building at 71 Riverside Drive. On June 23, 2009, Respondent signed the inspection card indicating that the rough plumbing inspection had been performed and the work had passed inspection. Respondent's provisional mechanical and plumbing inspector licenses had already expired at the time that he signed the inspection cards identified above. Respondent did not advise his supervisor, Luther Council, when his provisional plumbing and mechanical inspector licenses expired. Mr. Council testified that he, rather than Respondent, actually performed all four of these inspections and that Respondent simply signed the inspection cards. Respondent's employment with Wakulla County was terminated on October 20, 2009. On November 25, 2009, a complaint was opened by the Department of Business and Professional Regulation, alleging a possible violation of section 468.629(1)(a), Florida Statutes. The complaint was assigned DBPR Case Number 2009-061682. On December 1, 2009, Respondent was notified by letter of the complaint filed against him, and was given an opportunity to file a response to the complaint. A memo was generated on January 29, 2010, regarding the April 14, 2010 probable cause panel meeting. DBPR Case Number 2009-061782 was listed on this memo, under a category described as "Cursory Reviews." No evidence was presented to indicate what directions were given regarding the complaint by the probable cause panel, or whether the April meeting actually took place. Probable cause was found June 9, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Building Code Administrators and Inspectors dismiss the Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 28th day of December, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard Larry Noles 62 Quail Run Crawfordville, Florida 32327 Robyn Barineau, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration in this case is whether Respondent's certificate as a plumbing contractor in Pinellas County should be disciplined because of the matters alleged in the Administrative Complaints filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Pinellas County Construction Licensing Board (Board) was the agency responsible for the certification of plumbing contractors and the regulation of the plumbing trade in Pinellas County. Respondent was certified by the Board as a plumbing contractor, but his certification had been suspended by the Board on August 8, 1999, for failure to provide proof of required liability insurance. Ernie Martin Plumbing (EMP) has been in business in Pinellas County, Florida, since the 1940's. The business was started by Respondent's father, with whom Respondent worked until he took over the business. Respondent operated the business until, due to the demands of health, he relied on two employees, Charlie Pierce and Greg Rowe, to do all the work commencing in the mid-1980's. He actually sold them the business in the late 1980's. Since neither Pierce nor Rowe was a licensed plumber, in October 1984 Respondent changed the status of his certificate to qualify the company on those jobs where certification was required. Because he was not satisfied with the way the business was being run, however, on August 8, 1999, Respondent went to the offices of the Board for the purposes of having his certificate and name removed as the qualifying certification for EMP. At that time he was advised by a clerk at the Board office that his certificate had been suspended for a failure to maintain the required liability insurance for the company. Because of this, Respondent erroneously believed his license was no longer active and could not be used by the company, so he took no further action. On November 8, 1999, Doris Ruttledge called EMP to fix a leak under her kitchen sink in her home at 3800 Fifth Avenue South. A representative of the company came to her home and purportedly fixed the leak. Ms. Ruttledge paid the fee required. She soon found out that the leak had not been properly fixed and still existed. She called EMP several times to come fix it, speaking each time with Greg Rowe, but the repair was not done. She finally had another plumber complete the required repairs. Somewhat earlier, on July 31, 1999, Arthur Arendt experienced problems with the sewer line exiting his home located at 501 36th Avenue North. The line was blocked and sewage was backing up. Arendt called EMP and asked what it would cost to repair the problem. When he was quoted a price of $100.00, he agreed to have the work done, and a representative of EMP came to the house to do it. After digging down about five feet from the house, the plumber determined that the line was clogged and broke through the pipe to remove the blockage. Once the blockage was removed, the plumber asked Mr. Arendt for an empty two-liter soda bottle from which he cut a curved section which he placed over the opening in the pipe as a patch. The plumber then covered the patch with dirt and declared it fixed. The following day, Mr. Arendt noticed that the pipe was leaking at the patch. He called Greg Rowe, the representative of EMP, who said he would fix it but did not do so. Finally, on September 30, 1999, after no-one from EMP had come out to repair the leak, Mr. Arendt repaired it himself. Several weeks later, in November 1999, Mr. Martin came to the Arendt home, examined the repair and Arendt's modification to it, and determined that further work needed to be done. Mr. Martin contacted Greg Rowe and told him he wanted the line repaired correctly and he wanted it done immediately. The required corrections were made. According to Kenneth Klotz, the chief plumbing inspector for St. Petersburg, the use of a piece of plastic bottle is not an acceptable means of repairing a broken sewer line. A seal must be watertight to prevent leakage of sewage from the line into the surrounding ground. Within those parameters, small repairs may be made by patch, but larger repairs require the replacement of the broken pipe section. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a final order in this case revoking Respondent's certification (License C-985(RF0040714))as a plumbing contractor in Pinellas County without prejudice to apply for re-certification after one year. DONE AND ENTERED this 9th day of August, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 9th day of August, 2000. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 33773-5116 Ernest J. Martin 5050 34th Street North St. Petersburg, Florida 33714
The Issue The issue in the case is whether the application filed by Thomas Edwards Dalton (Petitioner) to take the examination for certification as a plumbing plans examiner should be approved.
Findings Of Fact The Petitioner is seeking to become a state-certified plumbing plans examiner. The Respondent is the state agency charged with responsibility for certification of plumbing plans inspectors. On December 12, 2013, the Petitioner submitted to the Respondent his application to take the examination for the certification sought. As required by rule, the Petitioner also submitted an “Affidavit of Work Experience” setting forth a statement of work experience presumably relevant to his application. The affidavit form requires that it be “completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the application’s experience” for the relevant period. The Petitioner wrote the narrative of his experience contained within the affidavit dated December 8, 2013. The affidavit was signed by a person identified as Anthony Applebeck, a building code administrator in Altamonte Springs, Florida. Generally, an “Application Review Committee” (ARC) comprised of three building code enforcement specialists reviews applications and affidavits submitted to the Respondent. In this case, two members of the ARC independently reviewed the Petitioner’s submission and determined that additional information related to the Petitioner’s work experience was required. In an email dated December 17, 2013, the Respondent advised the Petitioner that additional information was required. The letter stated as follows: The Affidavit of Work Experience that was submitted with your application is missing detailed hands-on plumbing experience. Please complete the enclosed Affidavit of Work Experience and submit it to the department. The person completing the work affidavit should be specific when explaining your duties and actual hands-on experience. The ARC’s determination that the Petitioner’s Affidavit of Work Experience was insufficient was correct. The affidavit lacked a detailed explanation of the Petitioner’s work experience, specifically as to “hands-on” plumbing involvement. The Petitioner failed to submit the supplemental work experience affidavit requested by the Respondent. In an email dated December 18, 2013, the Petitioner requested that the ARC reconsider his original submitted affidavit. On February 18, 2014, the Respondent issued a Notice of Intent to Deny the Petitioner’s application based on the failure to submit sufficient information to establish that the Petitioner has the experience required for the certification sought. By letter dated February 28, 2014, the Petitioner challenged the proposed denial of his application and requested an administrative hearing. The evidence presented at the hearing by the Petitioner was insufficient to establish that the Petitioner meets the requirements to take the examination for certification as a plumbing plans examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application to take the examination for certification as a plumbing plans examiner be denied. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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, 2014. COPIES FURNISHED: Thomas Edward Dalton 906 Delta Court Altamonte Springs, Florida 32714 (eServed) Robert Antonie Milne, Esquire Office of The Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed) J. Layne Smith, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Robin Barineau, Executive Director Division of Professions Building Code Administrators and Inspectors Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against based upon his age, in the manner addressed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was an employee of the City of Leesburg at times pertinent hereto. He was employed as a waste water operator trainee, commencing employment on or about June 5, 2000. The Respondent is a city government and unit of local government which operates two waste water plants. At times material to this proceeding the Respondent was employed and assigned to the "Canal Street Plant." The Petitioner was required to perform several job functions in his capacity as a waste water operator (trainee). Respondent's Exhibit Nine, in evidence, provides a job description for the Petitioner's employment positions which include the following: Record all flows; constantly survey charts and meter readings; repair leaking waste water pipes; perform building maintenance chores; maintain vigilance over all the department facilities and log or report any unusual situations; take oral and written instructions and carry them out in a quick and responsible manner; load and unload lawn cutting equipment, and cut and trim grass at utility plant sites; make repairs and/or replace parts on plant equipment; and repair leaks and other operations as directed. That job description also required a trainee to have knowledge of the functions and mechanics of pumps and other waste water plant equipment, knowledge of the occupational hazards and safety measures required in plant operations; to have an ability to detect faulty operating characteristics in equipment and to institute remedial action. The trainee is also required to be able to read meters, chart accurately and to adjust procedures to meet plant volume requirements. He must have an ability to understand and follow oral and written instructions. The Respondent's personnel policies and procedures manual (manual), in evidence as Respondent's Exhibit Eight, states at Policy No. 600.2(13) that "poor performance" is a violation of policy sufficient to initiate discipline. Poor performance is described in that section as a failure to perform assigned duties according to prescribed dimensions and standards on the individualized performance plan. Policy No. 600.2 provides for progressive discipline ranging from a verbal warning, to a written warning, a one-to-three day suspension, a four-to-five day suspension, or termination. Thus the discipline for violation of that policy is a range of appropriate actions from verbal warning to termination. On or about July 11, 2001, the Petitioner was the subject of a corrective action performance evaluation by his supervisor, Bob Mirabella. Mr. Mirabella, the Respondent's Operations Supervisor, accorded the Petitioner a grade of zero in several categories of work performance. Those are deficiencies indicating the Petitioner's lack of understanding of basic concepts related to his job position, including failure to following instructions, difficulty making simple decisions, difficulty or failure in following standard procedures, and a poor attitude. Overall his evaluation shows a rating of the Petitioner's performance as "unacceptable." That corrective action evaluation also contains a section that the Petitioner and his supervisor must initial, indicating that the Petitioner had reviewed the evaluation and that the performance deficiencies had been communicated to him. Mr. Mirabella advised the Petitioner of corrective measures to take and that any continued failure to meet expectations might result in termination. Mr. Mirabella created a type-written plan of improvement for the Petitioner with remedial activities, objectives, and developmental activities. Under the Respondent's consistent policy, the action plan would have been reviewed in 60 days, September 11, 2001, in order to determine that the Petitioner was meeting those expectations. On August 13, 2001, the Petitioner received a written reprimand for failure to perform duties assigned to him on July 23, 25, and August 9, 2001. These were duties that were in accordance with the prescribed dimensions and standards of the individual performance plan for the Petitioner. The written reprimand, in evidence as Respondent's Exhibit Two, included a description of the Petitioner's failure to perform duties including lawn maintenance, and again cited his argumentative attitude. On August 29, 2001, the Petitioner received a three-day suspension from duties for failure to perform assigned duties according to prescribed dimensions and standards as set forth in the individual performance plan. The disciplinary action form, in evidence as Respondent's Exhibit Three, specifically referred to the Petitioner's failure to perform lawn maintenance duties, failure to follow established rules and policies, and failure to take appropriate action to correct a leaking pump. It was also noted that the Petitioner was making coffee and watching television instead of performing assigned duties. Mr. Mirabella created a performance evaluation summary in preparation for the Petitioner's September 11, 2001, 60-day review of the initial, unsatisfactory evaluation of July 11, 2001. The summary showed a continuation of the Petitioner's difficulties and problems both in understanding his job and in dealing with other people in the course of his duties. The summary cited an incident where the Petitioner was abrasive, including swearing, toward other employees. It was Mr. Mirabella's intention to give the Petitioner a written reprimand regarding the swearing incident. However, due to the emergency nature of the events occurring on September 12, 2001, at the waste water plant, the written reprimand was not completed prior to the beginning of the investigation that ultimately led to the Petitioner's termination. The Petitioner made no major progress in correcting any of the problems outlined in the action plan that constituted part of the July 11, 2001, evaluation. On or about September 12, 2001, it was determined that there was a near overflow of sewage at the Canal Street Plant. Scott Moss, the employee who worked on the morning shift on September 13, 2001, discovered the problem and took corrective action immediately. Mr. Mirabella learned of the problem and reported it to the Respondent's Director of Environmental Services, Susanna Littell. Upon learning of the potential overflow occurrence, Ms. Littell began an investigation to determine when the overflow problem occurred. She gathered plant flow information and took measurements of the tanks. Employing engineering calculations, based upon the flow rates at the plant, Ms. Littell was able to determine that the problem had occurred on the Petitioner's shift. The Petitioner was the only employee on duty at the time the problem occurred. Ms. Littell consulted two outside engineers (non-city employees) to review her calculations. Those engineers found that her calculations were accurate. According to Ms. Littell, the waste water employees on duty at the plant should have observed the valve positions or otherwise noticed a problem in the plant that needed remediation. This was a regular part of their assigned duties, including the Petitioner. Mr. Mirabella determined a number of valves had been changed, which had caused the "aereation bay" to begin to fill with waste water. The aereation bay almost overflowed, which would have caused a serious environmental hazard and damage. It would have caused irreparable harm to the credibility of the waste water department, and could have engendered a minimum of $10,000.00 dollars in fines imposed by the Department of Environmental Protection. The importance of preventing these types of situations has been emphasized to employees who worked at the waste water plant, including the Petitioner. Because of the Petitioner's failure to notice the obvious serious problem occurring at the plant on his shift, and his failure to take corrective action, he was cited for negligence in performing his assigned duties in violation of the Respondent's policy. The employee who worked as his counter- part on the shift immediately after the Petitioner's, Elmer Wagner, was also cited for negligence in performing his duties because of his failure to notice the problem and to take corrective action. Mr. Wagner at the time in question was 67 years of age. The information obtained during Ms. Littell's investigation was forwarded to Ms. Jakki Cunningham-Perry, the Respondent's Director of Human Resources, in order for her to determine the appropriate disciplinary action to take. Ms. Cunningham-Perry performed an investigation of the September 12, 2001, incident. She spoke to several individuals, including, but not limited to, Mr. Mirabella, Ms. Littell, Jim Richards, who was one of the engineers consulted by Ms. Littell, as well as the Petitioner. She thereafter deliberated and prepared a written memorandum setting forth her investigative findings. Ms. Cunningham-Perry concluded that the closing of the valves occurred during the Petitioner's shift. She also concluded that Mr. Wagner should have noticed the change in the pump flow and valves during his shift. Both the Petitioner and Mr. Wagner were cited for failure to perform assigned duties in violation of city policy 600.0(13), as a result of the investigation performed by Ms. Cummingham-Perry. She reviewed the personnel history of both the Petitioner and Mr. Wagner in order to determine the appropriate levels of discipline. The Petitioner's prior history included the special corrective action evaluation of July 11, 2001, indicating unacceptable performance; the August 13, 2001, written reprimand for violation of policy 600.2(13); and the suspension for violation of that same policy. In light of the past performance of the Petitioner, as well as the September 12, 2001, incident, Ms. Cunningham-Perry recommended that he be terminated. On November 30, 2001, the Petitioner was terminated from his employment with the Respondent. The Petitioner's last day on the payroll with the Respondent was December 6, 2001. Mr. Wagner is older than the Petitioner and has had an exemplary performance record with the Respondent City. He never had any disciplinary problems on his record for 15 years of his employment with the Respondent. Because of his theretofore spotless employment disciplinary record, he was given a written reprimand as a result of his negligent performance of job duties on September 12, 2001. No evidence was adduced indicating that the Respondent treated any employees over the age of 40, including the Petitioner, any differently than employees under the age of 40. During the relevant time period the Respondent had approximately 22 employees in the waste water department. Fifteen of those 22 employees were over the age of 40. The Petitioner actually produced no evidence in his case establishing his date of birth or age. There is no evidence that the Petitioner's age was considered or was a factor in his termination decision. The decision to terminate him was based solely on his failure to perform assigned duties and his prior performance record. Moreover, the Petitioner adduced no evidence to show that he was replaced or otherwise lost his position to a younger individual. The individual who became a waste water trainee after the Petitioner's termination was Scott Moss. Mr. Moss is currently employed as Waste Water Operator with the Respondent. There is no doubt that Mr. Moss is a significantly younger individual, purported to have been in his late 20's when the incident in question occurred. The Petitioner, however, produced no evidence regarding Mr. Moss' date of birth or his age in relationship to the Petitioner's. He also produced no evidence to show that he was actually replaced by Mr. Moss. Mr. Moss had been hired on or about January 29, 2001, nearly one year prior to the date of the Petitioner's termination. Both the Petitioner and Mr. Moss were working at the Canal Street Plant in similar capacities and duties, at the time the Petitioner was terminated. Mr. Moss, therefore, just continued to work there and ultimately was elevated, through his adequate performance, to the position of Waste Water Operator. It was not established that he was hired simply to replace the Petitioner when the Petitioner was terminated. Further, the Petitioner did not adduce sufficient, persuasive evidence to show that he was actually qualified to perform the job. His prior performance had been unacceptable since at least July 11, 2001, and likely before that time. The Petitioner repeatedly failed to comprehend and perform assigned duties of a Waste Water Operator Trainee on multiple occasions. This was despite efforts by the Respondent to help the Petitioner correct his deficiencies. Accordingly, it has not been established that the Petitioner was "qualified" for the position of Waste Water Operator Trainee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of May, 2004. COPIES FURNISHED: Michael George 25131 Southeast 167th Place Umatilla, Florida 32784 Steven W. Johnson, Esquire McLin & Burnsed, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Department of Transportation, pursuant to its decision to procure certain sewer line cleaning equipment, issued an Invitation to Bid to potential vendors of such equipment. The specifications in that Invitation to Bid which are at issue in this proceeding concern the specified ability of the machine being proposed to vacuum gutters while being driven or, that is, in motion. The other specification at issue was that the machine had to be a standard production model with five of such machines in service for one year prior to May 1988. The sewer line cleaner specified had to have a nine cubic yard capacity. The bids were received, including that of Vac-Con, Inc. and Jet Vac Sanitary Service. The bid results were posted on June 3, 1988, noticing the Department's intent to award the contract for the nine cubic yard sewer line cleaner to Vac- Con, Inc. Jet Vac Sanitary Service timely filed a formal protest of that intended bid award on June 17, 1988. The Petitioner's formal protest was transmitted to the Division of Administrative Hearings and duly came on for hearing. The Petitioner is contending that the Vac-Con model V290 storm sewer line cleaner does not meet the specifications in the Invitation to Bid because it will not vacuum gutters while in motion in the configuration set forth in Vac-Con's published specifications for its standard models. It asserts, in conjunction with this argument, that the alternative configuration proposed by Vac-Con would in effect render this a nonstandard production model of which Vac- Con has not had five in service prior to May 1988, which would represent a departure from the bid specifications and thus result in a non-responsive bid. The Respondent, however, contends that the alternative configuration proposed by Vac-Con is merely an options package to an existing standard production model machine and thus is in conformance with the specification. The Respondent has been advised by Vac-Con that the V290 machine will perform as specified and that at least five machines have been so configured and have been in service for the required one year or greater period. It is stipulated that Jet Vac Sanitary Service was the next lowest bidder after Vac-Con and has standing to protest the Intent to Award. Jet Vac was a responsive bidder. It is also stipulated that the configuration of the model V290 depicted in Vac-Con's promotional material itself will not meet the specifications set forth in Respondent's Invitation to Bid. The dispute is whether the Vac-Con machine, as optionally modified, as proposed by Vac-Con, meets the specification concerning the machine being a standard production model. In response to the Invitation to Bid, Vac-Con, Inc. submitted a bid for its Vac-Con model V290. It accompanied that bid with a written statement of the model specifications which coincided with the specifications required by the Invitation to Bid. It specified, that is, that it would comply with the requirement that the vehicle be able to vacuum gutters while being driven in motion. Jet Vac in turn submitted a bid which was responsive, but it was not the lowest bid. Vac-Con, Inc., in other bids submitted in the past year as well as in its advertising literature, describes the V290 model of sewer line cleaner as one in which the vacuum compressor is driven by the truck engine, that is the engine which provides the motive power to the vehicle. In order to operate the vacuum compressor as described in that literature, the rear axle of the truck has to be disengaged, with the result that the unit cannot vacuum and drive at the same time. This configuration of the V290 model which has the vacuum being operated by the truck engine or chassis engine, is the normal type of unit offered by Vac-Con in its vehicle demonstrations and literature, as recently as one week prior to trial. In order for the V290 to comply with the bid specifications at issue, it must be reconfigured so that the vacuum compressor is run by an auxiliary engine and not the motive power engine. The power available to operate the vacuum compressors which vacuum trash from gutters and so forth, would be reduced from the chassis engine which, in the normal configuration of that model, operates the vacuum compressors. The reconfiguration whereby the vacuum compressors would be run off the auxiliary engine, and not the motive engine, would require a reversal of the V-belt drives used by the normal unit. This alternate configuration would be obvious to the casual observer. The intent of the term "standard production model" in the specifications at issue is to ensure that a machine purchased will have ready availability of manufacturer's replacement parts out of stock. This serves to prevent the purchaser from having to do development work on new models which are not in standard production runs and do not have inventories of spare parts in the manufacturer's stock as yet. Because the alternate configuration of the unit, whereby it would vacuum while moving, running its vacuum equipment off of its auxiliary engine, requires new engineering and reevaluation of the power of the V290's auxiliary motor, the specification language requiring a "standard production model" and requiring that five such units be operational in the field, requires in this instance that five units in the alternate configuration at issue be found to have been in satisfactory field service for one year. The written description submitted by Vac-Con, Inc. in response to the bidding documents, describes a machine which complies with the specification requiring the ability of the machine to vacuum while it is in motion. That description was specially prepared for purposes of this bid. Indeed it is not a machine represented, at the time of the bid, in the company's advertising literature, catalog data or other published brochures and like sources of information in order to verify that indeed Vac-Con did have five units in the alternative configuration in satisfactory service. The Department's representative, Mr. Burt, telephoned individuals whose names had been supplied him by Vac-Con as being persons who could verify that the alternative, which could vacuum in motion with the vacuum blower run off the auxiliary engine, was indeed in service. Using these names supplied him by Vac-Con and names of persons some of those people in turn gave him, who had such altered machines operating in satisfactory service, Mr. Burt telephoned each of the individuals whose names had thus been furnished by Vac-Con and its customers. He thus confirmed that there were indeed at least five units in service in the field, for at least one year, which had the ability to vacuum gutters while in motion, with the vacuum equipment being operated by the auxiliary engine on the machine. The Department has a policy of relying upon the representations of its suppliers. It does not inspect each piece of equipment before it writes a purchase order after awarding a bid. It instead reserves the right to reject any piece of equipment that does not meet specifications, after purchase. The Department does not wish to get into an adversary relationship with its suppliers and, in turn, vendors typically do not want an adversary or unfavorable relationship with the Department and do not want future disqualifications from bidding based upon any lack of integrity or misrepresentations in responding to bid specifications. Accordingly, the representations made on the bidding document have historically been quite accurate and have a high degree of probability of reliability. Hence, the Department has not, in the exercise of its discretion, followed a policy of physically inspecting each piece of equipment and independently verifying its existence or capabilities. It rather has effectively, in the past, relied upon the vendor's representations regarding the capacities or capabilities of equipment. In fact, the Department has neither the staff nor the time to make any further pre-award investigations, especially due to the nationwide market and indeed, to some extent, international market, in which it seeks to procure equipment of all sorts. In any event, being satisfied that the equipment would perform as represented and verifying that at least five such configured machines were in active field service for a year or more, the Department concluded that, in the exercise of its discretion, that the specifications had been adequately responded to and that the award should be made to Vac-Con as lowest, most responsive bidder. Insufficient proof to the contrary was offered at the hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered awarding the contract for Florida DOT Bid Number MY3188B5 to Vac-Con, Inc. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 8th day of December, 1988. COPIES FURNISHED: Ray Heath William B. Singleton Jet Vac Sanitary Services Post Office Box 186 New Smyrna Beach, Florida 32070 Bruce A. Campbell, squire Senior Litigation Attorney Office of General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Kaye N. Henderson, P.E., Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
