The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent violated Section 471.033(1)(g), Florida Statutes, by displaying negligence in the practice of engineering, and violated Section 471.033(1)(j), Florida Statutes, by sealing a drawing which was not prepared by him or under his responsible supervision, direction, or control. The Respondent denies that there has been any violation.
Findings Of Fact At all times material hereto, the Respondent, Monrad R. Thue, has been a licensed engineer in the State of Florida, having been issued license number PE 0032071. The Respondent's address is 8520 S.W. 53rd Court, Miami, Florida 33143. In January of 1987, the Respondent signed and sealed plans for the steel elevator support of the "Sander's residence" located on Key Biscayne, Florida. At the time of signing and sealing the plans, the Respondent also placed the following limiting notation over the seal: "For steel elevator supports only." The Respondent did not meet with the draftsman, David Del Sol, either prior to or during the draftsman's preparation of the plans. Daniel Del Sol, who is David Del Sol's brother, took the subject plans to the Respondent because the building department required that the elevator support portion of the plans be sealed by a licensed engineer before it could be approved. The Respondent carefully reviewed the plans drawn by David Del Sol and retained the plans for a couple of days During the next two days the Respondent did the necessary calculations and made some minor drafting changes on the support system sections of the plans. He than signed and sealed the plans and returned them to David Del Sol. These actions by the Respondent constitute responsible supervision, direction, or control. 1/ The steel elevator support portion of the plans suffers from a lack of coordination in several details and could have been drawn somewhat clearer. The lack of coordination and clarity in the subject plans does not, however, constitute negligence in the practice of engineering. 2/
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Professional Engineers issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 25th day of March, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count II of the administrative complaint and that his licenses be suspended for a two year period; Count I should be DISMISSED. DONE and ENTERED this 30th day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 30th day of November, 1982.
The Issue Whether a civil fine should be imposed against Respondent for alleged violation of Section 399.06(2), F.S., as set forth in the Notice to Show Cause, dated February 16, 1978. The Respondent was furnished Notice of Hearing by the Hearing Officer on September 6, 1978, with date of hearing scheduled for November 13, 1978. Upon Petitioner's Motion for Continuance, the hearing was continued until November 22, 1978. Upon a further request for continuance based on injuries received by Respondent, the hearing was again continued until December 5, 1978, and the order continuing the hearing, dated November 17, 1978, was furnished to the Respondent. By his letter of November 29, 1978, Respondent acknowledged receipt of the said order. Neither Respondent nor any representative on his behalf appeared at the hearing and, accordingly, pursuant to Rule 28-5.25(5), the hearing was conducted as an uncontested proceeding.
Findings Of Fact In the early part of 1977, Samuel Eldon, owner and operator of the All State Elevator Company, Miami, Florida, contracted with Respondent Yanks Construction Company to furnish and install two elevators at an apartment building under construction at 677 NE 24th Street, Miami, Florida. Eldon obtained a city permit to install the two elevators and began work on the job about March, 1977. By July, 1977, installation of the elevators was essentially complete. (Testimony of Eldon) On July 25, 1977, Eugene S. Walters, elevator inspector for the City of Miami, went to the construction site to inspect the elevators for safety, possible fire hazards, and condition of the equipment. This inspection was for the purpose of determining if a construction permit for a period of thirty days should be granted in order to make the elevators available for use of contractor personnel. Walters found a number of deficiencies in the installation and other deficiencies which required correction on the part of Respondent. Since the elevators were not in a satisfactory condition for use, Walters gave the deficiency "punch list" to Respondent and Eldon for corrective action. Additionally, Eldon disconnected some wires to prevent operation of the elevators. On this date Eldon observed that the elevators were being operated by unknown individuals. At this time, Respondent agreed to perform the necessary work in order that the elevators would pass inspection. (Testimony of Walters, Eldon) On September 5, 1977, Eldon asked for a reinspection. When Walters arrived at the building, he observed that the elevators were in use by construction personnel. He noted that the deficiencies had not been remedied and therefore shut off the elevator switches to prevent them from operating. On October 11, he again went to the site, accompanied by state elevator inspector Ray L. Cline. They posted warning notices in both elevator cars, pulled the main line switch and sealed the elevators with a state seal. On October 17, the inspectors found that the seals had been broken and observed the elevators being operated by tenants of the building. The deficiencies still had not been corrected by Respondent. On November 11, 1977, Respondent was again told of the remaining work necessary to place the elevators in an operable state. (Testimony of Walters, Cline) By letter of January 6, 1978, the Miami Building and Zoning Inspection Department informed Respondent again of the unfinished items and pointed out that one of the elevators had been seen in use by various individuals. Respondent advised by letter of January 11 to the building department that one of the elevators had been inspected and approved for construction use and would be operated only by authorized personnel, and that the other elevator would be locked out of service when the job was not in progress at the end of each workday. Finally, certificates were issued on February 6, 1975, for full use of the elevators after passing the required inspection. (Testimony of Walters, Exhibits 1-2)
Recommendation That this administrative proceeding against Respondent be dismissed. DONE and ENTERED this 2nd day of January, 1979, in Tallahassee, Florida. Hearings THOMAS C. OLDHAM Hearing Officer Division of Administrative 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mary Jo Gallay Staff Attorney Department of Business Regulation 725 South Bronough Street Johns Building Tallahassee, Florida 32304 Yanks Construction Company 1835 NW 20th Street Miami, Florida 33142 ===========================================================
Findings Of Fact During times material hereto, Respondent, Bobby D. Patton, was a certified general contractor, qualifying Bellavia Construction, Inc. (sometimes referred to as Bellavia) and has been issued license number CGC011543. (Petitioner's Exhibit 1). During times material hereto, John Bellavia (Bellavia) was not licensed by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board, as a contractor. (Petitioner's Exhibit 1). During times material hereto, Allstate Interiors, Inc., was not qualified with the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. (Petitioner's Exhibit 1). On October 12, 1982, Bellavia Construction contracted with Mrs. Mei Lin Eisen to construct a fast food restaurant within the confines of Aventura Mall for a cost of $37,000.00. Bellavia executed the contract on behalf of Bellavia Construction as it's president. (Petitioner's Exhibit 2). On October 15, 1982, Mrs. Eisen gave to Bellavia Construction a down payment of $7,400.00. (Petitioner's Exhibit 3). Bellavia Construction was to complete the construction within four weeks after the issuance of the building permit. (Petitioner's Exhibit 1). Mrs. Eisen emphasized to Bellavia that the construction phase of the restaurant had to be completed within the stated period in order that her business could be operating at the time of the Mall's grand opening. Mrs. Eisen also advised Bellavia that if she did not have her business operational at the time of the grand opening, she would be assessed a daily penalty by the Mall's owner for every day she was not in business beyond the grand opening. (TR 21, 35). On October 15, 1982, a building permit was issued to Respondent for the construction improvement work by Bellavia Construction on the Eisen job. (Petitioner's Exhibit 4; TR43). For the three week period following the issuance of the building permit (October 15, 1982), there was virtually no progress on the job with the exception of the drilling of three holes for plumbing and the placement of metal studs; which holes were incorrectly drilled and had to be relocated because they did not comport with the schematic drawings as depicted in the plans. During the three week period following the issuance of the permit, Bellavia was observed performing construction at another business in the mall. During that time, Mrs. Eisen inquired of Bellavia as to the lack of progress on her job and was told that there was no money to be made on the project. At the conclusion of the three week period subsequent to October 15, 1982, Bellavia quit Mrs. Eisen's project and did not return the deposit monies. Mrs. Eisen therefore had to obtain the services of another contractor to complete the job. As a result of this delay, her business was not open at the time of the mall's grand opening. (TR 22, 36). Mrs. Eisen was assessed a civil penalty of $16,800.00, payable over a seven year period at $200.00 a month. (TR 23) Neither during the negotiation of the contract nor during the performance of the contract did Mrs. Eisen or her architect have any knowledge of Respondent. Their entire contractual dealings were with Bellavia. (TR 23, 24, 38 and 39). Bellavia was also the president of Allstate Interiors, Inc., which attained corporate status on May 2, 1983. On May 4, 1983, a building permit for construction work by Bellavia Construction for Aventura Travel was issued to Respondent. (Petitioner's Exhibit 6). On May 11, 1983, a building permit for construction work by Bellavia Construction for Dentaland was issued to Respondent. (Petitioner's Exhibit 5). During February, 1983, Respondent moved from his address of record with the Department of Professional Regulation, Construction Industry Licensing Board, which was 8698 S.W. 50th Street, Cooper City, Florida. In July, 1983, the Department became aware of Respondent's move from the above location during the investigation of the instant case. (TR 50, 53/54, 56/58). Respondent, during the license renewal process period for 1985/1987, notified the Department of his address change to 1005 N.E. 143rd Street, North Miami, Florida, which became his address of record. (Petitioner's Exhibit 1). As stated in the background, Respondent did not appear at the hearing except through counsel.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, Bobby D. Patton, license number CGC 011543, be suspended for a period of one (1 year. Further, it is RECOMMENDED that an administrative fine of $500.00 be imposed upon Respondent. DONE and ORDERED this 13th day of October, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 13th day of August, 1986. COPIES FURNISHED: Erroll Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Blvd. Miami, Florida 33137
The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
