The Issue The issue in this case is whether respondent's licenses as a registered air-conditioning contractor and registered sheet metal contractor should be disciplined for the reasons given in the amended administrative complaint filed on July 10, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Charges At all times relevant hereto, respondent, Nicholas Donald Bacca, was licensed as a registered air-conditioning contractor and a registered sheet metal contractor, having been issued license numbers RA 0055337 and RS 0049354 by petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was the qualifying agent for Nick Bacca Solar/Air Systems. He operated his business from his residence located at 4559 Fulton Avenue, Jacksonville, Florida. On the weekend prior to May 6, 1991, nine large air-conditioning units having a value of around $12,000 were stolen from the Atmore, Alabama Lions Community Center. The identification numbers of the units were immediately given by local police to the National Crime Information Center. Acting on information received from one of the apprehended theives, on May 14, 1991, a search warrant was obtained by the Duval County Sheriff's Office to search respondent's property at 4559 Fulton Avenue, Jacksonville, Florida. All nine units previously stolen in Atmore, Alabama were found in respondent's possession. It can be reasonably inferred from the evidence that respondent knew the units were stolen and that they could be used in his contracting practice. It is further found that by engaging in the foregoing conduct, respondent is guilty of misconduct in the practice of contracting. Respondent was charged with nine second-degree felony counts of violating Section 812.019, Florida Statutes, which makes unlawful the act of dealing in stolen property. On August 29, 1991, respondent entered a plea of no contest to one count of violating Section 812.019, Florida Statutes. Adjudication was withheld by the court, respondent was placed on fifteen months community control, and prior to the expiration of his community control, he was required to make restitution in the amount of $8,371.16. He was also required to pay $220.00 in court costs. For the purpose of determining an appropriate penalty, several aggravating circumstances come into play. First, in terms of the severity of the offense, respondent pled guilty to a second degree felony, punishable by state law by imprisonment for up to fifteen years in state prison. Further, the stolen property in respondent's possession could have been sold to unwitting members of the public with adverse consequences upon those persons. Finally, given the nature of the offense, a penalty having a potential deterrent effect on other contractors may be appropriate. On the other hand, there is no evidence that respondent has been disciplined by the Board on any other occasion. In investigating and prosecuting this action, petitioner has incurred costs to date in the amount of $3,745.42. This amount was established by affidavit and was not contested. Failure to Appear at Hearing Although respondent's counsel received a copy of the notice of hearing issued on August 22, 1995, which scheduled a hearing on September 26, 1995, and a second notice issued on September 18, 1995, giving the specific location of the hearing, he did not appear at final hearing. He has never filed a motion for continuance with the undersigned, or otherwise contacted this office to advise that he would be unable to attend the hearing. At the close of the business day prior to the hearing, respondent's counsel's office telefaxed to opposing counsel a motion for protective order and motion to strike notice of hearing. The document was not served on the undersigned. In the motions, counsel moved to strike the notice on the grounds he had not been given reasonable notice of hearing and the hearing date of September 26 had not been cleared with his office. He further cited R. Crim. P. 3.132(c) and advised he was "detained" in Alachua County until October 17, 1995, and could not attend the hearing. The motions were opposed by petitioner. After petitioner furnished the undersigned with a copy of the motions at final hearing, which were treated as a motion for continuance, the motions were denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty as charged in Counts I and III of the amended administrative complaint, revoking his license, and requiring him to pay $3,745.42 in costs incurred by the Board in investigating and prosecuting this action. Count II should be dismissed. DONE AND ENTERED this 14th day of November, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 14th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1364 Petitioner: Petitioner's proposed findings of fact have been adopted in substance in this Recommended Order. COPIES FURNISHED: Elizabeth C. Masters, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211 Thomas A. Boyer, Jr., Esquire 390 North Orange Avenue Suite 1890 Orlando, FL 32801-1642 Mr. Nicholas D. Bacca 4559 Fulton Avenue Jacksonville, FL 32207 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway Suite 300 Jacksonville, FL 32211-7467 Lynda L. Goodgame, Esquire Dept. of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to question 37. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991. DANIEL MANRY Hearing Officer Division of Administration 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 8th day of April 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Clyde S. Botner, was a registered specialty contractor having been issued license number RX 0043602 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). Respondent is now the owner of Days Aluminum Products (DAP), a construction firm located at 4404 Devonshire Road, Tampa, Florida, but was in the process of purchasing the business when the events herein occurred. He has been licensed by the State since June 29, 1983. Botner was and still is the only state licensed contractor with the firm. Debra Tackett resides at 7302 Sequoia Drive, Temple Terrace, Florida. Tackett desired to have an aluminum carport added to her house and contacted DAP for the purpose of obtaining an estimate. Respondent visited Tackett's residence in July 1987 and gave an estimate of $7,088 to complete the job. Within a few days, another DAP representative, Scott Tarbox, met with Tackett and agreed to reduce the price to $6,000. After the contract changes were initialed by Tarbox, Tackett gave Tarbox a check for $1200 as a down payment on the work. The check was deposited to the account of DAP. The contract carries the signature of Botner as the authorized agent of DAP. On or shortly after July 18, Botner made application for a building permit with local officials butt was unsuccessful since the proposed construction was three feet beyond the setback line. This meant the structure had to be moved back three feet or a variance obtained from local zoning officials. Because Tackett preferred not to modify her structure, she requested that respondent obtain a variance. By then, Botner had put up string lines, laid boards for pouring concrete and dug some trenches. The value of this work was less than $1200. Although respondent now contends he had no authority or responsibility to do so, he agreed to make application for a variance by August 26 so that the matter could be taken before the local zoning board for final decision on September 17. However, he missed the August 26 filing deadline. Around September 15 Tackett learned that the application for a variance had not been timely filed and, in any event, it would probably be denied. Therefore, she decided "it was best to terminate" the contract. She also requested that Botner return her deposit. Although respondent promised to return the money on two occasions (September 18 and 22), he did not do so. When he did not meet the second deadline of September 22, she filed an action against Botner in small claims court the same date seeking to recover her $1200. On September 29, 1987, or a week after the small claims court action had been filed, respondent purchased a cashier's check in the amount of $1264 and had an employee, Larry Blevins, carry the check to Tackett. However, before returning the deposit, Blevins asked that Tackett sign a "release" which forbade her from making any complaints against DAP. Tackett declined to sign the release and was accordingly not given her money. By letter dated October 5, 1987 Tackett received an offer of $1263 from DAP's attorney but such payment was again conditioned upon her agreeing to "not register any complaint with any governmental or non-governmental agencies regarding (DAP)." She again declined the offer. On January 5, 1988 Tackett obtained a judgment in the amount of $1263 plus interest against Clyde S. Botner d/b/a Days Aluminum Products. To date, Botner has paid only $100 of that judgment. Botner conceded the judgment is still unpaid, except for one payment of $100, but contends Tackett has damaged his firm's reputation by filing complaints with the Better Business Bureau and the Board and obtaining a judgment in small claims court. He also contends that Tackett gave conflicting and untrue versions of what occurred to the Board investigator and the Better Business Bureau. He does not believe the judgment has anything to do with DAP or his license but instead is a purely civil matter. This is because he says the work in question could have been performed in Hillsborough County in 1987 without using his state license. Finally, he contends this proceeding is unjustified because he twice attempted to repay the money in 1987 but the customer refused his offers. There was no evidence of any prior disciplinary action having been taken against respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 489.129(1)(m), Florida Statutes (1987) and that a fine in the amount of $750 be imposed. The other charge should be dismissed. DONE AND ENTERED this 11th day of August, 1989 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2693 Petitioner: 1-3. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 1. Covered in finding of fact 2. 7-8. Covered in finding of fact 3. 9-11. Covered in finding of fact 4. 12-13. Covered in finding of fact 7. Rejected as being irrelevant to the issues. Covered in finding of fact 8. COPIES FURNISHED: Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mr. Clyde S. Botner 1989. 4404 Devonshire Road Tampa, Florida 33634 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Fred Seely, Executive Director Construction Industry licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact At all material times, the Respondent Morris Marder was a registered building contractor, having been issued license number RB 0004509. On March 4, 1980, the Respondent Marder contracted with Erwin and Joan Ravich to convert the garage of the Ravich home into a family room. The March 4, 1980 contract between the Raviches and Marder, who was also doing business as "Home Remodeler Morris Marder", 1/ was signed by the Raviches and accepted by M. Marder. An undated addendum to the contract, which was prepared by the Raviches' attorney, was signed by the Raviches and Dan Rossman, a salesman and contract estimator for the Respondent Marder. However, no evidence was presented that the Respondent Marder had knowledge of or signed the addendum, which required completion of the project by an unspecified date. The execution of the addendum delayed beginning construction on the project until May of 1980. The Respondent Marder subcontracted the performance of work on the Ravich job to Ken Nieset, who with his brother, Steve, a licensed general contractor, was doing business as Brothers Two Construction. During the course of the project, Nieset received three of the four payments made under the contract directly from the Raviches. Although Nieset worked for the Respondent previously, he was neither Marder's foreman nor employee. When additional subcontractors were required, they were hired for the Ravich job by Nieset. The Raviches paid a total of $9,190 under the contract. The first payment of $1,190 was made directly to Home Remodeler on May 3, 1980, the approximate date that work on the project actually began. A partial release of lien was furnished by Morris Marder to Erwin Ravich on May 6, 1980 based on the first payment. The second payment was made by Erwin Ravich on June 20, 1980 for $2,500. This check was made payable to Ken Nieset per authorization of lien furnished on June 20, 1980, in connection with the second payment. 2/ On June 27, 1980 and July 11, 1980, checks were issued to Ken Nieset by the Raviches for $3,500 and $2,000, respectively. The Raviches' received a release of lien for $2,000 from Nieset, but did not obtain a release of lien for the $3,500 payment. The release of lien for the $2,000 payment executed by Nieset did not involve Home Remodeler or the Respondent Marder. After receiving payments totaling $5,500 directly from the Raviches, Nieset abandoned the project. During the course of the Ravich job, the Respondent Marder employed Jorge Gamez, a draftsman/supervisor, who he believed was supervising the Ravich job. However, Gamez' involvement with the job was limited to drawing the plans and did not include supervising construction, since he was not a licensed general contractor. King Cole Plumbing, a state licensed contractor, subcontracted with Nieset to install the plumbing and septic tank at the job site. When King Cole left the job, the rough plumbing was installed and all that remained on the job was interior finishing. The septic tank with an appropriate cover was in place and all work performed by King Cole had passed inspection. The septic tank cover originally agreed to by the parties was required to be changed to a heavier type when the Raviches altered their plans and decided to continue using their driveway. This change resulted in a $512 charge from Sun Gold Industries, who supplied the new cover. Additionally, the original contract was modified to add higher grade plumbing fixtures, lighting fixtures, and tile. In August, 1980, the Respondent Marder entered Saint Frances Hospital for treatment of phlebitis. At the same time, Rossman, Marder's employee, left for vacation in California for seven to eight weeks. As a consequence, the Ravich job was delayed and an unauthorized payment of $2,500 to Nieset was made without securing the approval of the Respondent Marder or Rossman. The Respondent Marder calculated that approximately $2,000 was due as the balance of the job and an added $1,500 was due for extras to the contract. Faced with a substantial loss, the Respondent Marder contacted the Raviches and their attorney in August, 1980, and offered to finish the job and pay for the specified extras in return for Ravich placing $4,500 in escrow with his attorney. Ravich's attorney declined the Respondent's offer and ordered him off the job site. Subsequently, Dade County cancelled the Respondent's building permits, which effectively prohibited him from completing the work at the site. Subsequently, a lien was filed against the Ravich job by King Cole Plumbing for nonpayment of monies due from Ken Nieset. The lien was determined to have been filed in violation of Florida's Mechanics Lien Law and was voluntarily removed. The work performed by the Respondent and his subcontractors prior to being ordered off the job was satisfactory and passed periodic inspection by the Dade County Building Department. The charges in this administrative proceeding formed the basis of action taken against the Respondent by the Dade County Division of Construction Trades Qualifying Board on September 11, 1981, which resulted in revocation of the Respondent's certificate as a subgeneral building contractor in Dade County. The Respondent Marder has been in the construction business since 1954 and licensed as a general contractor in Florida since 1968. Other than the instant case, the Respondent has never been forced off a job. He has been in business in South Florida for many years and has been involved in thousands of construction jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Construction Industry Licensing Board enter a Final Order suspending the Respondent's license for a period of six (6) months. DONE and ENTERED this 27th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1983.
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
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 ===========================================================
