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
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 is whether Respondent engaged in an unlawful employment practice when it failed to hire Petitioner as a shift supervisor at the Conserv I wastewater treatment facility.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white male. At the time of the events giving rise to this proceeding, Petitioner was 52 years old. Petitioner holds a Class “A” wastewater treatment plant operator license from the State of Florida. Petitioner has worked for the City as a wastewater treatment plant operator since 1991. All of Petitioner’s experience with the City has been at the City's Iron Bridge facility. Respondent is a municipality of the State of Florida. Respondent operates at least three wastewater treatment facilities -– known as Conserv I, Conserv II (not directly implicated in this case), and Iron Bridge -– through its Wastewater Process and Operations Bureau (Wastewater Bureau). Each facility is slightly different. The Conserv I facility has a capacity of 7.5 million gallons per day (mgd) and is designed to service approximately 75,000 people. The facility uses a unique, technologically complex process to treat wastewater. The treated wastewater from the Conserv I facility is used for irrigation, and is referred to as “reuse” or reclaimed water. The Iron Bridge Facility is larger than the Conserv I facility. It has a capacity of 40 mgd and is designed to service approximately 400,000 people. The facility uses a more traditional process to treat the wastewater. The treated wastewater from the Iron Bridge Facility is discharged into wetlands and rivers; it is not used as reclaimed water. Hiring Process for the Conserv I Shift Supervisor In early 2001, a shift supervisor position came open at the Iron Bridge facility. Petitioner applied for that position, but he was not interviewed. The Iron Bridge shift supervisor position was filled by Don Proscia, a 64 year old white male. Mr. Proscia was a shift supervisor at the Conserv I facility, and his hiring at the Iron Bridge facility was considered to be a “lateral transfer” by the City. Apparently, the City does not interview other candidates where an existing employee requests a lateral transfer, which explains why Petitioner was not interviewed for the Iron Bridge shift supervisor position. As a result of Mr. Proscia’s lateral transfer, a shift supervisor position came open at the Conserv I facility. The minimum qualifications for the Conserv I shift supervisor position, as reflected on the job posting (Joint Exhibit 12), were graduation from high school, two years of experience in the operation of a wastewater treatment facility, and a valid Florida driver's license. The position also required a current Class "B" wastewater treatment operator license, and required a Class "A" license to be obtained within two years of employment. Experience in advance wastewater treatment and prior supervisory experience were preferred. Petitioner applied for the Conserv I shift supervisor position. Terry White and Klaus Blixer also applied for that position. Mr. White is an African-American male, and he was 29 years old at the time. He has worked for the City as a wastewater treatment plant operator since 1994. All of Mr. White’s experience with the City has been at the Conserv I facility. At the time of his application, Mr. White held a Class “B” wastewater treatment plant operator license. Subsequently, he obtained a Class "A" license. Mr. Blixer is a white male. The record does not reflect his age. Mr. Blixer has worked for the City as a wastewater treatment plant operator since approximately 1995. All of his experience with the City has been at the Iron Bridge facility. At the time of his application, Mr. Blixer held a Class “A” wastewater treatment plant operator license. The three applicants for the Conserv I shift supervisor position were interviewed by a committee composed of Ernie Cox, Charlie McComas, and Paul Deuel, all of whom are members of management with the Wastewater Bureau. Mr. Cox is an African-American male; Mr. McComas and Mr. Deuel are both white males. All of the committee members are 40 years of age or older. The committee interviewed each applicant and asked them the same set of interview questions. The interviews were all conducted on the same day. After all of the interviews were complete, the committee discussed their general impressions of each applicant. The committee did not make the hiring decision on that day. However, each of the committee members testified at the hearing that they ranked Mr. White the top candidate at that point, and two of the three committee members testified that they considered Mr. Blixer (not Petitioner) to be the second-best candidate. In an effort to obtain additional input on the applicants, Mr. Cox contacted Charles Thompson, the plant manager at the Iron Bridge facility where Petitioner and Mr. Blixer worked. Mr. Cox is the plant manager at the Conserv I facility where Mr. White worked, so he was generally familiar with him and his qualifications; however, he also obtained feedback on Mr. White from Mr. McComas, who was a chief operator at Conserv I and was more familiar with Mr. White's attendance and on-the-job performance. Mr. Thompson did not strongly recommend either Petitioner or Mr. Blixer. He characterized Petitioner as an "average" employee who did what was asked of him but nothing more. Mr. Cox relayed this information to the other members of the committee. Based upon the interviews and the additional information acquired by Mr. Cox, the committee unanimously agreed to recommend that Mr. White be hired for the Conserv I shift supervisor position. Mr. Cox forwarded the committee’s recommendation to David Sloan, the chief of the Wastewater Bureau. Mr. Sloan accepted the committee’s recommendation and forwarded it to Tom Lothrop, the director of the Environmental Services Department, for final approval. Mr. Lothrop gave final approval to the recommendation, and Mr. White formally assumed the shift supervisor position in June 2001. There is no credible evidence that either race or age were considered at any point during the interview process or that the committee was given a mandate by anyone in the City's management to hire a particular person or a person of a particular race or age for the Conserv I shift supervisor position. Indeed, at the hearing, each member of the interview committee adamantly (and credibly) denied consideration of race or age in connection with their recommendation to hire Mr. White. The committee members based their recommendation to hire Mr. White on his qualifications, work ethic, and experience at the Conserv I facility. As discussed below, Mr. White was more qualified for the Conserv I shift supervisor position than was Petitioner. The only direct evidence of discrimination cited by Petitioner in support of his claim allegedly occurred during the course of the internal grievance process initiated by Petitioner after he was not hired for the shift supervisor position. That process and the alleged evidence of discrimination are discussed below. City’s Internal Grievance Process After Petitioner learned that he had not been hired for the shift supervisor position, he filed a grievance with the City. The grievance was denied at each step in the process as described below. The City’s grievance process includes four steps. Step One is a hearing before Petitioner's plant manager, i.e., Charles Thompson. Step Two is a hearing before the chief of the Wastewater Bureau, i.e., David Sloan. Step Three is a hearing before the director of the Environmental Services Department, i.e., Tom Lothrop. Step Four is a hearing before a three-member grievance committee composed of two persons selected by the City and one person selected by Petitioner. The first three steps are relatively informal and are not recorded. They are meetings and/or discussions to address the concerns of the person who filed the grievance. Step Four is a more formal hearing, and it is tape recorded. Petitioner waived his Step One hearing, and the record does not include any credible evidence regarding Petitioner's Step Three hearing. Indeed, the focus of Petitioner's discrimination claim is on events which allegedly occurred at the Step Two and Step Four hearings. Petitioner's Step Two hearing was conducted on September 14, 2001. There is no credible evidence that Mr. Sloan (or anyone else) made a statement at that hearing regarding a need or requirement to hire a minority for the Conserv I shift supervisor position. Petitioner's Step Four hearing was conducted on November 10, 2001. That portion of the tape recording of the Step Four hearing introduced by the parties in this proceeding does not include any direct evidence of discrimination. Mr. Sloan did state that given two equal candidates, he would favor the minority in an effort to increase the diversity in the Wastewater Bureau. However, he further stated (consistent with his testimony at the hearing) that race did not factor into the decision to select Mr. White for the Conserv I shift supervisor position because Mr. White and Petitioner were not equal candidates. One of the exhibits discussed by Mr. Sloan at the Step Four hearing compared the percentage of black and white managerial employees in the Wastewater Bureau as a result of Mr. White's promotion with the percentage which would have existed if Petitioner had received the shift supervisor position. That exhibit, which was received in this proceeding as Joint Exhibit 7, was prepared by Mr. Sloan solely for use at the Step Four hearing to rebut Petitioner's discrimination claim and to show that the City does not discriminate based upon race or age. The exhibit was not used in connection with the decision to select Mr. White for the Conserv I shift supervisor position. Indeed, there is no credible evidence that the document existed prior to the Step Four hearing. In any event, Joint Exhibit 7 shows that there is not a pattern of discrimination in the Wastewater Bureau against persons in Petitioner's class (i.e., white males over age 45). The exhibit shows that more than 67 percent of the managers and supervisors in the Wastewater Bureau are white, and 35 percent of the managers and supervisors were promoted to those positions after the age of 46. The other exhibit discussed by Mr. Sloan at the Step Four hearing compared the qualifications of Mr. White and Petitioner. That exhibit, which was received in this proceeding as Joint Exhibit 6, presents an incomplete view of Petitioner's education and training because Mr. Sloan obtained the information on Petitioner (and Mr. White) from the personnel files maintained at the Wastewater Bureau, not the files maintained in the City's Personnel Office. The omissions in Joint Exhibit 6 are immaterial in this proceeding, however, because the record includes the Personnel Office files for Petitioner (Joint Exhibit 1) and Mr. White (Joint Exhibit 2), and those exhibits rather than Joint Exhibit 6 were relied upon in evaluating the relative qualifications of Petitioner and Mr. White. Relative Qualifications of Petitioner and Mr. White Both Petitioner and Mr. White met the minimum qualifications for the Conserv I shift supervisor position as reflected on the job posting. Neither Petitioner nor Mr. White has a college degree, but both have taken college courses. Mr. White has taken courses towards a business administration degree at Valencia Community College. Petitioner completed a correspondence course from Michigan State University on supervisory management in the water and wastewater field.2 Both Petitioner and Mr. White have attended numerous seminars and continuing education courses on wastewater. Petitioner has held a Class "A" wastewater treatment plant operator license since at least 1995. Mr. White held only a Class "B" license at the time of his application; however, he obtained his Class "A" license in April 2002, which is well within the time specified in the job posting for the shift supervisor position. Mr. White has a reclaimed water field inspector certification, which is important for Conserv I because the facility produces reclaimed water. Petitioner does not have this certification. Both Petitioner and Mr. White had worked "out of class" as shift supervisors at their respective plants. Both performed well in those positions. Petitioner had slightly more experience than Mr. White as a wastewater treatment plant operator with the City, i.e., 10 years compared to seven years. However, all of Mr. White's experience was at the Conserv I facility, whereas all of Petitioner's experience was at the Iron Bridge facility. The location of the experience was one of the most significant factors in the hiring decision. Mr. White's experience at the Conserv I facility meant that he would not have a significant learning curve in the shift supervisor position. By contrast, it would take Petitioner at least three to six months to adapt to the operational differences at the Conserv I facility. The other significant factors in the hiring decision were Mr. White's work ethic, his demonstrated communication and leadership skills, and his familiarity with the City's policies and procedures. Mr. White demonstrated his communication and leadership skills as a union representative and as a member of the City's pension advisory board. Mr. White's familiarity with the City's policies and procedures was important because he would be responsible for interpreting and applying those policies and procedures to the employees that he supervised. Mr. White was characterized by his supervisors as an exemplary employee who was highly motivated and takes pride in performing his job well. He willingly took on additional tasks, and he worked well without direction. By contrast, Petitioner was characterized by his supervisors as an "average" employee who did what was asked of him but nothing more.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. 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 13th day of December, 2002.
The Issue The issues in these cases are whether the allegations of the administrative complaints are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact The Petitioner is charged with responsibility for regulation of the practice of engineering within the State of Florida. At all times material to these cases, the Respondent has been licensed by the State of Florida as a professional engineer holding license PE40904. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E., a professional engineer licensed by the State of Florida. Mr. Berryman was accepted as an expert in structural engineering design, including aluminum structure design. Mr. Berryman's testimony regarding deficiencies in the Respondent's design of the projects referenced herein was clear and persuasive. In response, the Respondent testified that the referenced projects met applicable professional standards, including load and stress standards. The Respondent's primary engineering experience has apparently been in the realm of civil, not structural, engineering. According to Mr. Berryman, the Respondent's calculations included material errors, reflected structural elements other than those identified in the design documents, and revealed misunderstanding and misapplication of engineering precepts. The Respondent's testimony has been rejected. Mr. Berryman's testimony has been credited. DOAH Case No. 12-1635PL (Del Vecchio) On October 7, 2011, the Respondent signed, sealed, and dated a one-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at "3611 Throle" in Rockledge, Florida (the "Del Vecchio" project). The document failed to include elements and information required by the Florida Building Code (FBC) and by the Petitioner's rules. The document failed to identify the height of the mansard rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to identify the size of the "K-bracing" elements included in the design, failed to indicate the size of the corner columns or to show a corner column section, and referenced a design element that had been superseded elsewhere in the document. Additionally, the frame spacing dimensions set forth on the document failed to conform to the width of the proposed structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the Aluminum Design Manual (ADM). The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the standard set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and purlins) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed by the Respondent has been fully credited. The Respondent's preparation of the design document for the Del Vecchio project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1636PL (Nunez) On September 20, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 4128 Southwest 102nd Lane Road, in Ocala, Florida (the "Nunez" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the mansard rise and failed to detail a proper end connection between diagonal roof bracing and the frame of the structure. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed in the document for compliance with the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, purlins, cable bracing, anchor bolts, and gusset plates used in a roof beam splice) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Nunez project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards. DOAH Case No. 12-1637PL (Dunaway) On September 8, 2011, the Respondent signed, sealed, and dated a three-page structural engineering design document for construction of an aluminum screen swimming pool enclosure located at 8538 Southwest 135th Street, in Ocala, Florida (the "Dunaway" project). The document failed to include elements and information required by the FBC and by the Petitioner's rules. The document failed to identify the height of the gable rise, failed to detail a proper end connection between diagonal roof bracing and the frame of the structure, failed to indicate the size of the corner columns or to show a corner column section, and failed to identity the metal alloy of a clip used at a detailed shoulder connection. Because the material to be used in construction of the proposed structure was aluminum, the applicable design standard is set forth in Chapter 20 of the FBC and the ADM. The standard requires that every element in the structure must be so proportioned as to resist the applied loading without exceeding the allowable stress for the construction material and without exceeding the allowable stress for each specific element of the structure's construction. Mr. Berryman reviewed the project proposed by the Respondent's design document using the information set forth in the ADM and determined that the proposed structure (specifically the proposed roof beams, columns, and shoulder connection fasteners) would not be sufficient to comply with applicable stress and load requirements. Mr. Berryman's analysis of the design proposed in the Respondent's document has been fully credited. The Respondent's preparation of the design document for the Dunaway project demonstrated a lack of due care in the practice of engineering and a lack of due regard for professional engineering standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order reprimanding the Respondent, placing the Respondent on probation for a period of two years under terms and conditions deemed appropriate by the Petitioner, and imposing a fine of $6,000 against the Respondent. Additionally, the final order should prohibit the Respondent from the practice of structural engineering until the Respondent submits to the Petitioner proof of his successful completion of an appropriate examination to be designated by the Petitioner. DONE AND ENTERED this 29th day of August, 2012, 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 29th day of August, 2012. COPIES FURNISHED: John Jefferson Rimes, III, Esquire Florida Engineers Management Corp. 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303 Scott Guy Campbell Apartment 805 250 58th Street, North St. Petersburg, Florida 33710 Zana Raybon, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2639 North Monroe Street, Suite B-112 Tallahassee, Florida 32303-5268 Michael Flury, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's challenge to the failing grade he received on the contract administration portion of the October 2000 General Contractor Examination should be sustained.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner sat for the contract administration portion of the Florida certification examination for general contractors administered in October 2000 (Contract Administration Examination). The Contract Administration Examination consisted of 60 multiple-choice questions of equal value, worth a total of 100 points. To attain a passing score on the Contract Administration Examination, candidates needed to receive a total of 70 points. Of the 378 candidates who took the Contract Administration Examination, 156 received passing scores. Petitioner was not among this group of successful candidates. He received a failing score of 66.67 on the examination. Question 2 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that required the candidate to determine, based upon the information given, on what workday (not calendar day) the pouring of concrete footings for a residential construction project would begin. There was only one correct answer to this question. Approximately 50 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect because it represented the calendar day (not the workday) on which the pouring would begin. He therefore appropriately received no credit for his answer. Question 9 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's knowledge of the requirements of Section 489.113(3), Florida Statutes, which provides as follows: A contractor shall subcontract all electrical, mechanical, plumbing, roofing, sheet metal, swimming pool, and air- conditioning work, unless such contractor holds a state certificate or registration in the respective trade category, however: A general, building, or residential contractor, except as otherwise provided in this part, shall be responsible for any construction or alteration of a structural component of a building or structure, and any certified general contractor or certified underground utility and excavation contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in the state. Any certified building contractor or certified residential contractor may perform clearing and grubbing, grading, excavation, and other site work for any construction project in this state, limited to the lot on which any specific building is located. A general, building, or residential contractor shall not be required to subcontract the installation, or repair made under warranty, of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing materials on a new building of his or her own construction. A general contractor shall not be required to subcontract structural swimming pool work. A general contractor, on new site development work, site redevelopment work, mobile home parks, and commercial properties, shall not be required to subcontract the construction of the main sanitary sewer collection system, the storm collection system, and the water distribution system, not including the continuation of utility lines from the mains to the buildings. A general contractor shall not be required to subcontract the continuation of utility lines from the mains in mobile home parks, and such continuations are to be considered a part of the main sewer collection and main water distribution systems. A solar contractor shall not be required to subcontract minor, as defined by board rule, electrical, mechanical, plumbing, or roofing work so long as that work is within the scope of the license held by the solar contractor and where such work exclusively pertains to the installation of residential solar energy equipment as defined by rules of the board adopted in conjunction with the Electrical Contracting Licensing Board. No general, building, or residential contractor certified after 1973 shall act as, hold himself or herself out to be, or advertise himself or herself to be a roofing contractor unless he or she is certified or registered as a roofing contractor. There was only one correct answer to this question. Approximately 65 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect inasmuch as a newly licensed general contractor is not free, pursuant to Section 489.113(3)(b), Florida Statutes, to install or repair wood shake roofs on existing buildings constructed by other contractors. Petitioner therefore appropriately received no credit for his answer. Question 29 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to calculate, based upon the information given, the cost of delivering 28,000 lineal feet of #5 bars of reinforcing steel. There was only one correct answer to this question . Approximately 67 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer. Question 38 of the Contract Administration Examination was a clear and unambiguous multiple-choice question that fairly tested the candidate's ability to distinguish between unit price contracts and other types of contracts, including lump sum contracts. Approximately 82 percent of the candidates chose this correct response. Petitioner chose another answer that was clearly incorrect. He therefore appropriately received no credit for his answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received on the contract administration portion of the October 2000 certification examination for general contractors. DONE AND ENTERED this 11th day of May, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 11th day of May, 2001. COPIES FURNISHED: Michael Richards 3802 Lakewood Road Lake Worth, Florida 33461 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 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 III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 16th day of July, 1997.
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.
