The Issue Respondent was charged in a November 19, 1998, Administrative Complaint, filed December 7, 1998, with ten counts of professional violations. The statutory violations alleged are: Count I: Section 489.129(1)(a), Florida Statutes (1995), obtaining a certificate or registration as a Certified Roofing Contractor by fraud or misrepresentation; Count II: Section 489.129(1)(h)2, Florida Statutes (1995), by committing mismanagement or misconduct in the practice of contracting that caused financial harm to a customer; Count III: Section 489.129(1)(k), Florida Statutes (1995), by abandoning a construction project in which the contractor is engaged or under contract as a contractor; Count IV: Section 489.129(1)(m), Florida Statutes (1995), by committing fraud or deceit in the practice of contracting; Count V: Section 489.129(1)(n), Florida Statutes (1995), by committing incompetency or misconduct in the practice of contracting; Count VI: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department plumbing permits and inspection; Count VII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department electrical permits and inspection; Count VIII: Section 489.129(1)(p), Florida Statutes (1995), by proceeding on a job without obtaining the applicable local building department framing, insulation, and/or final inspections; Count IX: Section 489.129(1)(o), Florida Statutes (1995), by committing gross negligence, repeated negligence, or negligence resulting in a significant danger to life or property; and Count X: Section 389.129(1)(c), Florida Statutes (1995), by violating any provision of Chapter 455, to wit, Section 455.227(1)(o), practicing beyond the scope permitted by law and performing professional responsibilities the licensee knows, or has reason to know, he is not competent to perform.
Findings Of Fact At all times material to the allegations of the Administrative Complaint, Respondent was a Certified Residential Contractor, having been issued license number CR C057235, by the Florida Construction Industry Licensing Board. At the time of hearing, Respondent's license had been suspended. Since January 27, 1998, Respondent also has been a Certified Roofing Contractor, having been issued license number CC C057649, by the Florida Construction Industry Licensing Board. At no time material was Respondent licensed, registered, or certified to perform electrical work. At no time material was Respondent licensed, registered, or certified to perform plumbing work. On or about February 27, 1997, Respondent entered into a $39,050.40, contract with Reuben M. Adams to restore and repair the Adamses' home at 7037 Mark Street in Jacksonville, Florida, which had been destroyed by fire on February 1, 1997. The work contracted-for included complete restoration of the living room, kitchen, two hallways, two bathrooms, four bedrooms, a laundry room, and a dining room; restoration of heat and air conditioning; and a virtually new roof. Among the electrical and plumbing restoration involved, Respondent specifically agreed to install a ceiling fan and a light kit in the living room; install a sink and faucet for the sink and a ceiling light fixture and vented range hood in the kitchen; install a ceiling light fixture in a hallway; remove floor mounted with tank commode and reinstall a floor mounted with tank commode; replace commode sink, remove and reinstall sink, install new faucet for the sink, install shower head and faucet set for bathtub, install bathroom exhaust fan and light kit for ceiling fan in the bathroom; install ceiling fan and light kit in bedrooms; replace faucet for sink and provide a shower head, faucet set and install a ceiling light fixture in the second bathroom; install a ceiling fan and light kit in the third and fourth bedrooms and dining room and hallway; install 960 square foot electrical and provide temporary utilities for dimensions of 40 feet by 24 feet by eight feet. These types of activities require electrical and plumbing licensure. On or about April 15, 1997, Respondent received and endorsed the first draw check of $22,245.23 from the Adamses. In May 1997, Respondent's site supervisor, Aaron Mitchell, requested that Mr. Adams give him $1500.00, cash to buy materials because Respondent was out of town and Mitchell could not perform the work without the materials. Mr. Adams paid this amount in cash to Mr. Mitchell but was never reimbursed by either Mr. Mitchell or Respondent. In early June 1997, the Adamses became concerned because little work had been completed on the restoration of their home. The house had been cleaned out and gutted and the slab for the room addition had been poured. Mr. Adams contacted Respondent several times about the lack of work being performed on the home. Between mid-June and early July 1997, Respondent completed the framing and installed the roof. On or about July 24, 1997, the Adamses released the second draw of $11,122.62 to Respondent, and Respondent deposited the money into his bank account. In approximately August 1997, Respondent ran electrical wire in the roof, installed electrical outlets in the walls, and completed the electrical work, including installing electrical outlets in the walls. Mr. Adams personally observed Respondent and his workers performing electrical wiring. The electrical work performed by Respondent required licensure as an electrical contractor, that a permit be obtained prior to the electrical work being performed, and that inspections of the electrical work be made before the walls were sealed up over the electrical work. Respondent failed to obtain a permit or to have an electrical inspection performed. Respondent completed the electrical work and covered up the electrical work with the walls without an inspection being performed. Respondent performed plumbing work on the Adamses' home, although he held no plumbing license. Respondent failed to pull a permit for the plumbing work and failed to call for the required inspections. Ultimately, he covered up the plumbing work with the walls without an inspection having been performed. The City of Jacksonville "red-tagged" the home for this reason. The effect of "red-tagging" was to prevent occupancy until compliance with the building code was assured. Such assurance required inspection, which in turn, ultimately required that at least the interior walls be taken down. Respondent also never obtained a framing, insulation or final inspection on the project. In October 1997, the Adamses filed complaints against the Respondent with the State Attorney's Office and the Department of Business and Professional Regulation (Case No. 97-18544). On or about October 31, 1997, Respondent signed a Letter of Intent with Mr. and Mrs. Adams agreeing to have their home ready for occupancy no later than December 1, 1997, and promising that Respondent would be responsible for all permits and inspections necessary for the project to be considered complete. At that time, Respondent apologized for all of the delays, the decline in their relationship, and the stress he had caused. Respondent and Mrs. Adams prayed together, and Respondent promised that from that day forward, the Adamses would see progress on their home every day until it was finished. Respondent did not abide by the requirements set forth in the Letter of Intent. Specifically, he never obtained the required permits and inspections. Mr. Adams confronted Respondent about the permits and the inspections, and the Respondent indicated that he had the permits at his office. He assured Mr. Adams that he was taking care of the electrical permit. In December 1997, Respondent requested that Mr. and Mrs. Adams drop their complaint with Petitioner Department of Business and Professional Regulation because he had applied for his roofing license and the complaint was holding up that roofing license being granted. Respondent told the Adamses that if they would drop their complaint, he could obtain his roofing license, which would allow him to generate money to complete their project. Around mid-January 1998, Respondent requested that the Adamses release the final construction draw and drop their complaints with Petitioner and the State Attorney. Respondent stated that if they paid him the final draw of $5,682.55, he would work every day on their project and have it ready for them to move in no later than February 4, 1998. The Adamses paid Respondent the remaining construction draw of $5,682.55, and withdrew their complaint with Petitioner. Respondent accepted the final draw on or about January 27, 1998. Respondent obtained his roofing license after the Adamses withdrew their complaint with Petitioner. After receiving the final construction draw, Respondent did minimal work on the project in January. On or about February 23, 1998, the Adamses reinstated their complaint with Petitioner against Respondent, resulting in the instant case. Respondent has not returned to work on the Adamses' project since March 1998. As of March 1998, Respondent had been paid the full contract price, but the home remained uninhabitable. The workmanship was substandard and the project was less than 100 percent complete. As a result of Respondent's unlicensed electrical and plumbing work on the Adamses' home and his covering-up his work with the walls, the Adamses were unable to obtain an inspection without the walls being taken down. This in turn, required that the walls be rebuilt. In addition to the money paid to Respondent for work improperly done or not done at all, the Adamses had to pay another builder $14,900.00, to remove the walls, re-install the electrical wiring and plumbing which had been completed or partially completed by the Respondent, and complete the renovation. Testimony of Roy Brand, Raymond Smith, and Douglas Arnold supports a finding that Respondent committed repeated negligence and created a dangerous condition when he performed electrical and plumbing work which he was not licensed to do and which he did not have the knowledge to perform. Particularly upon the testimony of Mr. Brand, it is clear that three types of very serious electrical installation errors or omissions had been performed once or more than once by Respondent. At least one of these would have been sufficient, under certain circumstances, to burn down the entire house. By installing electrical universal polyethylene boxes and using them as junction boxes, a purpose for which they were not designed, Respondent created what Mr. Brand described as "short of a 'Molotov Cocktail' that would burn your house down just about as quick." Likewise, one serious error occurred in the type of glue Respondent used on plumbing pipe throughout the home. Mr. Brand gave credible expert evidence that the construction undertaken by Respondent was undertaken for a reasonable amount of $39,050.40, and that a reasonable time to construct the entire contract would have been two and one half to three months after permitting. In addition to the money Mr. and Mrs. Adams paid to Respondent and the substitute contractor, Douglas Arnold, they incurred additional expenses and spent additional time out of their home as a result of Respondent's shoddy workmanship and unlicensed electrical and plumbing work. The Adamses also had to take out a second mortgage of $18,800.00 at 16.3 percent interest for 15 years in order to finance the repairs necessitated by Respondent's substandard and incompetent work, so that they could move back into their home. Mr. and Mrs. Adams and their child had to live somewhere during construction. Their insurance company paid them $750.00, for each of three months. However, they were unable to move back into their home from August 1997 until November 1998, as a direct result of Respondent's incompetence and misconduct.3 During this fifteen-month period, the Adamses paid $300.00 rent per month to Mrs. Adams' mother, plus an additional $100.00 per month for water and utilities, and storage fees of $119.00 per month to a storage facility for keeping their items which had not been destroyed by the fire The Adamses also incurred an additional expense of $1,500.00, for an air conditioning unit which Respondent was to have purchased under their contract with him.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order that: Finds Respondent guilty of one violation of each of the following: Sections 489.129(1)(h)(2); (1)(k); (1)(m); (1)(n); (1)(p); (1)(o); and (1)(c), Florida Statutes (1995); Revokes Respondent's General Contractor's and Roofing Contractor's licenses; Imposes a total fine for all violations, in the amount of $30,000.00; and Requires Respondent to pay restitution to Mr. and Mrs. Adams in the amount of $49,835.00. DONE AND ENTERED this 1st day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 1st day of May, 2000.
The Issue The issue is whether Respondent failed to secure workers' compensation coverage for its employees and, if so, the amount of the penalty to be assessed against Respondent.
Findings Of Fact Respondent installs and maintains air conditioning and heating equipment for residential and commercial applications. On May 2, 2017, Respondent was installing a duct system at 3128 East Hillsborough Avenue in Tampa. Two of Respondent's employees were performing work at the site and were not covered by workers' compensation. Leslie Michaud is the president and sole shareholder of Respondent. The air conditioning installation work performed by Respondent's employees is classified by the National Council on Compensation Insurance (NCCI) as class code 5537. This code is for "Heating, Ventilation, Air-Conditioning and Refrigeration Systems Installation, Service and Repair . . . ." During the audit period of May 3, 2015, through May 2, 2017 (Audit Period), code 5537 bore two rates. For the Audit Period, Respondent had no workers' compensation coverage for any of its employees, although it maintained an exemption for Mr. Michaud. For the Audit Period, Respondent's gross payroll was $213,327.49 exclusive of any payments to Mr. Michaud. Applying the manual rates during the Audit Period to the gross payroll yields unpaid workers' compensation premium of $14,870.43.
Recommendation It is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to secure workers' compensation coverage for its employees during the Audit Period and imposing a penalty of $29,740.86. DONE AND ENTERED this 7th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of January, 2019. COPIES FURNISHED: Tabitha G. Harnage, Esquire Steven R. Hart Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Leslie G. Michaud L and M Airconditioning System, Inc. 49 North Federal Highway, No. 206 Pompano Beach, Florida 33062 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Petitioner Scott Eric Baker ("Petitioner"), took the Certified Air Conditioning Class A Contractor examination in June 1991. The examination consists of two parts, Part One on business and financial management, and Part Two on actual air conditioning system mechanics. The Petitioner informally challenged the scoring of certain questions and received additional points but his total score of 68% was below the minimum passing score of 69.01%. Part One, Question 6 of the June 1991 directs the applicant to estimate the cost of refrigeration piping and related hardware shown in a related schematic. The schematic illustrates proposed refrigerant piping between a 15 ton air-cooled condensing unit and an air handler unit. Pipe joint connections are identified by standard symbols. The question states as follows: Refer to the Refrigeration System shown in Figure 1. Estimate the cost of the Refrigeration Piping. Add 6% Florida State Sales Tax to the total cost. The multiple choice list of possible answers to the question are: Less than $500.00. (B) Between $500.00 and $600.00 (C) Between $600.01 and $700.00 (D) More than $700.00 The pipe joint segments identified by the symbols on the schematic are 90-degree elbow joints. Elbow joints can connect pipe segments which have different elevations. Elbow joints can also be connected to construct a "swing joint" which provides for pipe alignment. Swing joints do not change the elevation between the pipe segments connected at the joint. According to the schematic, the first pipe segments, (two feet two inch pipes), run from the air-cooled condensing unit to a joint. The schematic does not identify the elevation of the air-cooled condensing unit or of the first pipe segments. The second pipe segments lie at an elevation of 104 feet 4 inches and connect via a pipe joint to the third pipe segments, which lie at an elevation of 104 feet 0 inches. The third segments connect via a pipe joint to the fourth pipe segments which are at an elevation of 103 feet 8 inches. The fourth segments connect to the pipe segments leading from the air handling unit (AHU 1). The correct answer to Question 6 is (B). The total cost for piping and hardware shown on the schematic is approximately $557. There are 83.3333 lineal feet of 1 and 3/8 inch diameter pipe at $3.96 per lineal foot, totaling about $330.00. There are 75.7527 lineal feet of 7/8 inch diameter pipe at $2.35 per lineal foot, totaling about $178.02. There are fourteen 90-degree elbows, (seven 1 and 3/8 inch elbows at 1.71 each and seven 7/8 inch elbows at .79 each) totaling 17.50. The total of materials is 525.52. Inclusion of the 6% tax results in an estimated cost of $557.05. Because there was no elevation shown for the first pipe segment between the condenser unit and the pipe joint, the Petitioner assumed that the pipe joint symbol indicated an elevation change and that the condenser unit could be located substantially above or below the identified 104 feet 0 inches elevation of the second segment. Accordingly, his answer to Question 6 was "(D) More than $700.00." The Petitioner's answer is based, not on the information provided in the schematic, but on unreasonable assumptions as to the condenser unit location, and is incorrect.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order dismissing Scott Eric Baker's challenge to the grading of his responses to the June 1991 examination for licensure as a Certified Air Conditioning Class A Contractor. DONE and RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4. Rejected, unnecessary. 10-14. Rejected, recitation of testimony. Respondent The Respondent did not file a proposed recommended order. Copies furnished to: Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Scott Eric Baker 13438 Caribbean Boulevard Fort Myers, Florida 33095 Vytas J. Urba, Esq. Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue The basic facts are not really disputed. Petitioner has many years experience as a plumber. The law is controverted. The agency says the required experience as a contractor must be with a fire sprinkler contractor. The Petitioner argues the statute does not define "contractor," and its common meaning would include plumbing contractor. Evidence was received that the agency has long held "contractor" to be limited to fire sprinkler installation contractors, and that this is based upon the special expertise required in design and installation of these systems. The argument of the Respondent that "contractor/ contracting" as it is used in the statute generally applies to fire sprinkler contractors is more persuasive based upon the evidence. The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact Mr. Frederick Hagen applied with the Department of Insurance, Office of the State Fire Marshal, to take the written examination for a license to engage in the business of designing and installing fire protection systems as a Contractor II, type 7, class 12, as defined by Section 633.021(5)(b), Florida Statutes. On July 8, 1985, his original application was hand- delivered back to him for failure to submit the appropriate application fee and the appropriate application form. Mr. Hagen's application was denied by the Department of Insurance, Office of the State Fire Marshal because he did not submit evidence of four years proven experience as required by Section 633.521(3), Florida Statutes. On August 8, 1985, Mr. Hagen requested a formal hearing on the denial of his application. At the hearing on November 12, 1985, Mr. Hagen submitted an original application and the appropriate fee to the Department of Insurance, Office of the State Fire Marshal. Petitioner's application was denied in accordance with long-standing agency policy because he did not submit evidence to show that he had the requisite experience as a fire sprinkler installation contractor or the educational background, or a combination thereof to be allowed to sit for the examination. (Transcript pages 16,17; Petitioner's Exhibit 1) At all times material herein, Frederick D. Hagen held a license from the Construction Industry Licensing Board and has been a plumbing contractor for over 12 years. (Transcript pages 25, 26) As a licensed plumbing contractor, he has been involved in the supervision of and actual installation of fire line stand pipes and fire sprinklers to the extent authorized by law. Petitioner submitted no evidence at the hearing of his education and experience in the design of sprinkler installations. Petitioner indicated that he considered the design of these systems as similar to design of a plumbing system, given the building codes and plans. Design of sprinkler installations is integral to the work performed by a Contractor II, type 7, class 12. Design of sprinkler installations is based upon codes plus experience received in working in the profession. Employees of these specialized contractors receive special educational training in design of systems. Experience of a plumbing contractor in reading codes and applying them in installing plumbing systems would be inadequate experience to qualify one to design a sprinkler system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that Mr. Hagen's application for examination to engage in the business of fire protection systems as a Contractor II, type 7, class 12, be DENIED. DONE AND ORDERED this 10th day of December 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December 1985.
The Issue Whether the Petitioner is entitled to an extension of time of 565 days for the completion of the project which is the subject of this proceeding, as opposed to the 367 days time extension which was granted for completion, and thereby is free from liquidated damages in the amount of $31,680.
Findings Of Fact On February 21, 1973, a contract was entered into between the Petitioner and Respondent for the construction of Phase II, University of North Florida, at Jacksonville, Florida, State Project No. BR-6504/7801-D. The Form of Agreement Between Contractor and Owner For Construction of Buildings, through its Article 4.2 identifies the conditions of liquidated damages. Article 8.5 states the conditions for settlement of claims and disputes. Contained as part of the contract, was standard form AlA Document, A201, American Institute of Architects, General Conditions of the Contract for Construction. Within the document A201, was Article 4.5, warranty of the work by the contractor; Article 8.3.1 discussing the matter of delays and extensions and Article 13.2.1 discussing uncovering and correcting. All these contract conditions are found in Petitioner's Exhibit "A" which was admitted into evidence. In pursuit of the contract obligations, the Petitioner entered into a contract with W. W. Gay, Mechanical Contractor, Inc., 523 Estelle Lane, Jacksonville, Florida. This contract with W. W. Gay as subcontractor contemplated the installation of mechanical parts of the contract work, and the agreement between the Petitioner and W. W. Gay is Petitioner's Exhibit "B", admitted into evidence. Part of the work to be performed by W. W. Gay involved the installation of a hot water piping system. According to Mr. W. W. Gay, President of W. W. Gay, Mechanical Contractor, Inc., 95 percent of the pipe to be used in the Phase II project was already available, having been left over from Phase I of the University of North Florida Project. This pipe had been stored for as long as 16 months, exposed to the weather. The storage itself was in accordance with the conditions of modification to contract document prepared by Reynolds, Smith and Hills, Architects, Engineers and Planners of Jacksonville, Florida. Petitioner's Exhibit "C" sets out the requirements for storing the aforementioned pipe. In addition, Mr. Gay testified that some of the type resin epoxy utilized in the Phase I project was left over and was stored in a facility whose temperatures reached 90 degrees Fahrenheit, although the recommended storage temperature for the substance was 70 degrees Fahrenheit. The piping spoken of was a type manufactured by Ric-wil Manufacturing known as FRP, Dual Gard 250. The pipe was identified in the course of the hearing by Carl Bowles, General Superintendent for W. W. Gay, as being a fiberglass type pipe. This pipe had been selected in lieu of the job specification pipe which is a form of asbestos pipe manufactured by Johns Manville, due to the fact that the Johns Manville pipe had not been approved for release by Johns Manville's quality control department. The substitution of the Ric-wil pipe was approved by the project architect, John Brickert, who was also the project manager and an employee of Reynolds, Smith and Hills. The approval for substitution was on the basis that the Ric-wil pipe was acceptable because it was a non-metallic pipe and the Johns Manville pipe was a non-metallic pipe. Approval for the substitution had been granted in Phase I and carried over into Phase II. In addition to the hot water piping system in Phase II, W. W. Gay installed a chill water system using a PVC type pipe identified as Ric-wil Chil Gard. Prior to the installation of the Ric-wil Dual Gard pipe in Phase I, W. W. Gay had never installed that type piping system. In the course of the installation of the piping system in Phase I, some problems were experienced with the installation which were not similar to the problems that would be experienced in the construction of the Phase II University of North Florida project. Phase I was completed utilizing the Ric-wil Dual Gard pipe. In the beginning of Phase II, W. W. Gay ran the cold water system and hot water system in a common area underground from valve pit one to valve pit six, in order to put into operation buildings 008 and 009 of the University of North Florida. These locations are shown on the engineering drawing which is Petitioner's Exhibit "K", entered into evidence. Installation of the two piping systems commenced in October of 1973. Sometime in the middle part of November, 1973, a test was conducted on the hot and chilled water systems between valve pits one and six. The hot water system passed the test. The chilled water system failed. Later in November, the chilled water system also passed. This successful test opened up the hot and chilled water systems to buildings 008, 009 and 011. Further tests were conducted in early January, 1974 and again the hot and chilled water lines passed. In January, 1974, W. W. Gay began to run the hot water piping system from valve pit six to valve pit seven and in the area of building 010 found that the line would not hold pressure. A decision was made to retest between valve pit one and six, a leek as found in the area of valve pit one. This leak was discovered in late January, 1974. A subsequent test of the hot water piping system was run in early February, 1974, between valve pit one and valve pit six and into the buildings 008, 009 and 011. This test failed. In the middle of February, 1974, a further test was made from valve pit one to the end of the line, to the northwest corner of building 011, and this test failed. For the balance of February, 1974, time was spent trying to repair the leaks in the hot water piping system. These continued failures in the system brought about two meetings to discuss the solution of the problem. These meetings will be discussed subsequently. At the time the subcontractor was experiencing problems with the installation of the hot water system, problems were also being experienced with the chill water system. Throughout March, the chill water system was continuing to be installed and in late March a leak was discovered opposite building 010. This leak was repaired. In mid April a leak was found in the chill water system in the area of valve pit six and an attempt to repair it was unsuccessful. Problems continued until June, 1974, at which time replacement of the water pipe and fittings was begun between valve pit one and six. Further testing showed a failure in the chill water piping. Finally in September, 1974, the chill water system passed. One of the problems with the chill water piping system concerned the couplings for that system which were found to be defective. An example of the problems associated with the couplings in the chill water system is demonstrated through Exhibit "N", by the Petitioner, which is a cross section of one of the couplings which was removed after being installed in the Phase II University of North Florida Project. This cross section shows numerous surface irregularities, which promote leaks. On February 28, 1974, a meeting was held in the offices of Reynolds, Smith and Hills which was attended by the project manager, John Brickert; representatives of the Petitioner; representatives of Ric-wil, Incorporated; representatives of the University of North Florida; representatives of the subcontractor W. W. Gay, and other representatives of Reynolds, Smith and Hills associated with the project. Varying theories were advanced in trying to explain the problems associated with the hot water piping system. From the subcontractor's point of view, expressed by W. W. Gay, this difficulty was not obvious because it was his contention that the pipe was being installed according to the directions of the manufacturer's representative who was on the job site for some 90 percent of the installation. Jack Green, the mechanical construction specialist for Reynolds, Smith and Hills, testified that from his on site observations, which occurred about the general time frame of the meeting of February 28, 1974, that he had seen water in the trenches around the building 010. Furthermore, according to Green, the subcontractor had undercut the ditches and had attempted to install the hot water piping system while the ditch was too wet, using loose soil which was not compacted. In addition Mr. Green stated that he felt that the joints were dirty and moist and had not been sanded properly. Finally, Mr. Green stated that he had stopped the installation of the pipe because of the conditions mentioned. The deposition upon written questions of C. G. Schoor, Service Manager with Ric-wil, said that he had been at the job site on February 11, 1974, and had noticed water leaks in the fringes and couplings of the hot water pipes. He felt that in the area of the flanges there was improper sanding because when the pipe was pulled out, the surface was clean and resin remained in the flange. He also commented in his deposition that there was improper surface sanding and a large area of entrapped air on one of the 10" couplings pulled out between points two and three on the second joint north of two and this occurred during an initial 150 lb. hydro test. In one joint the resin epoxy had not hardened and was still in a plastic state, according to Ben Schoor. In speculating about the plasticity, Schoor said that it could have been promoted by long storage of the material, or contamination of the material which constitutes the resin epoxy or improper mixture of the two components of the epoxy resin on the part of the subcontractor. He felt that this plasticity would probably promote leaks but he observed no such leaks where the resin epoxy was plastic. The deposition on written questions of Ben Schoor was entered into evidence as Respondent's Exhibit "B". Discussion at the February 28, 1974, meeting considered two alternatives: First, to allow for the further installation of the Ric-wil Dual Gard System using the expertise of the Ric-wil employees; second, to substitute the Ric-wil Dual Gard pipe with Ric-wil Hi-Gard Pipe, which is steel. A further meeting on March 4, 1974, was held with representatives of the Petitioner; the subcontractor, W. W. Gay; Reynolds, Smith and Hills, by John Brickert, and other representatives of that firm. It was decided at that meeting, that due to the effect of oil shortages causing the unavailability of the Ric-wil Dual Gard pipe and fittings, the Ric-wil Company would design a pipe system to utilize steel pipes, and the subcontractor would determine the necessary adjustments to use the steel pipe. At this meeting the subcontractor, W. W. Gay, requested some relief from possible liquidated damages, and the minutes of that meeting indicate that consideration of that request was deferred. According to notes from time sheets of Reynolds, Smith and Hills, which was admitted as Respondent's Exhibit "A", installation of the steel piping system was commenced on July 1, 1974, and completed August 21, 1974. Minutes of the meetings of February 28, 1974, and March 4, 1974, are found as Petitioner's Exhibits "E" and "F" respectively, admitted into evidence. After the March 4, 1974, meeting, discussion was continued on the question of liquidated damages in view of the substitution of the type of piping, and conjecture was made about the problems with the piping system. In correspondence of March 22, 1974, Neil A. Porter, Vice President of the Petitioner, makes reference to the liquidated damages question in this letter to John Brickert, and suggests holding the matter in abeyance. This letter enclosed a letter from W. W. Gay dated March 21, 1974, directed to the Petitioner, which sets out the approximate time to complete the system will be 105 days. The Gay letter also states opinions by Mr. Gay as to what was determined in the course of the February 28, 1974, meeting on the subject of the cause of the problems with the Ric-wil Dual Gard piping. Mr. Gay made further comments that he felt that the change in temperature, from 70 degrees to 90 degrees as stored, adversely effects the resin epoxy and that the ultra violet rays of the sun also effected the pipe which was stored outside. Mr. Gay's letter of March 21, 1974 and Mr. Brickert's letter of March 22, 1974 are Petitioner's composite Exhibit "G", which was admitted into evidence. Mr. Brickert responded to Mr. Porter by letter of March 29, 1974, in which he suggests the question of liquidated damages cannot be addressed at present because the amount of delay is unknown, and Reynolds, Smith and Hills is not a part of the contract and cannot accept a stipulation for extension. This letter is Petitioner's Exhibit "H", which was admitted into evidence. On April 19, 1974, a change order was entered by Mr. Brickert which allowed for the substitution of Ric-wil Hi-Gard steel pre-insulated pipe for the Ric-wil Dual Gard 250 plastic pre-insulated pipe. Page three of that change order indicates the rationale for accepting such a substitute and alludes to the possibility of a time extension which is not subject to identification at the moment of the change order, but which will be requested. This change order is Petitioner's Exhibit "I", which was admitted. A further statement on the Chil Gard pipe and the problems with the couplings is found in Petitioner's composite Exhibit "J", a letter of May 29, 1974, with attachments from John T. Brickert to Neil A. Porter. By Change Order #19 and the accompanying letter of explanation from John T. Brickert, addressed to Jack C. Koons, Administrator, Department of General Services; the project manager has denied, and the Respondent has agreed to such denial, of any time extension conditioned upon problems with the piping systems. This denial by the letter of September 8, 1975, is premised on the conclusion that any failure on the system was due to faulty installation or failure of material which was subject to the control of the Petitioner. As a result of Change Order #19, 198 days of time overrun at $160.00 a day have been assessed as liquidated damages, totaling $31,680.00. These items of Change Order #19 and the correspondence alluded to are found in composite Exhibit "D" by the Petitioner, which was admitted into evidence. A review of the evidence offered on the question of the cause of the problems in the hot water system which was being installed as Ric-wil Dual Gard indicates a possible problem associated with the manufacture of Ric-wil Dual Gard pipe; a possible problem with the storage of the Ric-wil Dual Gard pipe at the job site for a period of up to 16 months prior to its installation; possible problems associated with the storage of the resin epoxy at temperatures which would damage the compound; possible contamination of the resin epoxy; possible improper mixture of the resin epoxy and possible improper application of the resin epoxy on the surface of the piping; possible improper sanding of the surfaces of the pipe where it was joined; possible improper preparation of the ditch in which the pipe was being placed, and possible improper installation of the pipe itself. From an examination of the testimony and the evidence offered in support of that testimony, the cause of the problems with the pipe would appear to be a combination of all the factors mentioned above, but it cannot be discerned with reasonable exactness what the percentage of responsibility is in determining the factors which lead to the rejection of the Ric-wil Dual Gard System in favor of the Ric-wil Hi-Gard System. From the testimony and the exhibits offered on the question of the problems associated with the Chil Water System, the testimony points to defective couplings as the responsible agent for the problems associated with that installation. These defective couplings are found to be the primary cause of the problems associated with the Chill Water System. On the question of liquidated damages penalties to be associated with a substitution of the Ric-wil Hi-Gard System for the Ric-wil Dual Gard System testimony was offered, as described before, by W. W. Gay who was under the impression that he was receiving relief from any liquidated damages and thought that relief would be afforded. This testimony is supported by the testimony of Neil Porter, the Vice President of the Petitioner who likewise had such an understanding. It is also supported by the testimony of John Daniel Cheatwood, the President of Petitioner, who was in attendance at the March 4, 1974 meeting at the offices of Reynolds Smith and Hills. In addition, Jack Green, Field Representative Mechanical, for Reynolds, Smith and Hills recalled that W. W. Gay requested relief from any possible liquidated damages for substitution of the pipe and the appearance was given that some consideration would be made of the necessity for extension of time. Mr. Brickert, as spokesman for the owner, felt that the meeting of March 4, 1974, did not commit the owner to grant an extension, and upon ultimate assessment an extension of time associated with the substitution of the pipe was denied. It is found as a matter of fact that the owner through negotiations with the contractor and/or his subcontractor, W. W. Gay, and through the Petitioner's Exhibit "I" agreed to an extension of time for the installation of the Ric-wil Hi-Gard Pipe in substitution for the Ric-wil Dual Gard pipe.
Recommendation It is recommended that the relief requested from the imposition of liquidated damages due to the delays associated with the installation of the hot water system and chill water system, which were assessed as 198 days at a $160.00 per day, for a total of $31,860, be reduced in an amount which would equate to the time necessary to install the substituted hot water system, and be upheld in the amount which would equate to the time necessary to install the chill water system. DONE and ENTERED this 23rd day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, 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 23rd day of June, 1976. COPIES FURNISHED: William S. Stevens, III, Esquire For the Executive Director Department of General Services State of Florida 725 South Calhoun Street Tallahassee, Florida 32304 S. Gordon Blalock, Esquire Suite 2301 Independent Square Building Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Petitioner's challenge to the failing grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification 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 certification examination for plumbing contractors administered in April of 1996 (Certification Examination). The Certification Examination consisted of two parts. One part contained questions relating to business and financial management. The other part contained questions testing the applicants' general knowledge of the plumbing trade. Prior to the Certification Examination, applicants were given a list of reference materials (Reference Materials) and advised that questions on the test would be taken from these sources, which included AIA Document A201, the Builder's Guide to Accounting, the Contractor's Manual, the National Standard Plumbing Code Illustrated, NFPA 99- Health Care Facilities, and NFPA 54- National Fuel Gas Code. The applicants were further advised that they would be permitted to bring these Reference Materials to the testing site and to use them in attempting to answer examination questions. Question 8--Business and Financial Management, Session One Question 8 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which one of the choices given did not represent, according to AIA Document A201, a basis upon which an architect could withhold certification of payment. Section 9.5 of AIA Document A201 addresses the subject of "decisions to withhold certification" and provides as follows: DECISIONS TO WITHHOLD CERTIFICATION The Architect may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss because of: defective Work not remedied; third party claims filed or reasonable evidence indicating probable filing of such claims; failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; damage to the Owner or another contractor; reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or persistent failure to carry out the Work in accordance with the Contract Documents. It is clear from a reading of Section 9.5 of AIA Document A201 that the only correct answer to Question 8 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 11--Business and Financial Management, Session One Question 11 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which represented the most likely explanation for a decrease in gross profits in relation to sales. Page 149 of the Builder's Guide to Accounting reads, in pertinent part, as follows: A second useful test shows your cash position over a period of time. Take your gross profits as a percentage of sales volume for a given period. Then compute this percentage for a number of periods to get a trend. This indicates the amount of real control you have over your costs. When gross profit decreases in relation to sales, either you are not controlling your costs or your prices do not allow enough markup over your costs. Other factors that affect the level of gross profit can be unexpected inventory losses, increases in idle time, and material theft. It is clear, particularly upon a reading of the foregoing excerpt from the Builder's Guide to Accounting, that the only correct answer to Question 11 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 33--Business and Financial Management, Session One Question 33 of Session One of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to select the choice which accurately described the characteristics of a joint venture. Page 1-15 of the Contractor's Manual gives the following description of a "joint venture": A joint venture is a special combination of two or more persons jointly seeking a profit in some specific venture, without an actual partnership or corporate designation. The rights of persons who intend to do business as joint venture are governed substantially by the same rules that govern partnerships. An oral agreement between the parties may be sufficient to form a joint venture. However, to preclude misunderstandings it is strongly recommended that the agreement be in writing. The primary difference between a partnership and a joint venture is that a partnership is usually created for the transaction of business of a particular type, while the joint venture is usually limited to a single transaction. The advantages and disadvantages of a joint venture are substantially the same as those listed above for partnerships. It is clear, particularly upon a reading of the foregoing excerpt from the Contractor's Manual, that the only correct answer to Question 33 of Session One of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 36--Business and Financial Management, Session Two Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required applicants to determine which of the choices given indicated the point in time when revenue, costs, and expenses are first recognized under the percentage of completion method of accounting. Page 19 of the Builder's Guide to Accounting contains the following statement regarding the percentage of completion method of accounting: The advantage of the percentage of completion method is that income and its related costs, expenses, and profits are recognized and reported as the job progresses. It is clear, particularly upon a reading of the foregoing excerpt from page 19 of the Builder's Guide to Accounting, that the only correct answer to Question 36 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 37--Business and Financial Management, Session Two Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It asked how a contractor can be sure that general ledger entries have been correctly made. Page 202 of the Builder's Guide to Accounting states the following regarding general ledger entries: After you post your ledger at the close of the period, the first step to take in drawing up financial statements is to put together a trial balance. See Figure 21-1. This worksheet proves that the ledger is in balance. In all cases, debits should equal credits. So the total of all debits on one side of the trial balance must equal the total of all credits on the other side. Otherwise, none of the financial statements will balance. . . . The general ledger is in balance when all entries into it have been made correctly. The way to prove this is to add up the totals of all accounts. Modern-day general ledgers are maintained by the double entry system. This means that every entry is made twice- one debit and one credit. Debits are positive numbers and credits are negative. Because every entry includes a positive (debit) and a negative (credit), a correctly posted general ledger will add up to a net of zero. It is clear, particularly upon a reading of that portion of page 202 of the Builder's Guide to Accounting set forth above, that the only correct answer to Question 37 of Session Two of the Business and Financial Management portion of the Certification Examination is choice "(B)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 40--General Trade Knowledge, Division II, Session Three Question 40 of Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to examine a drawing illustrating fixtures in a public lavatory and to compare the drawing to the requirements set forth in the National Standard Plumbing Code Illustrated, Section 7.16.2 of which addresses the "size of floor drains" and provides as follows: Floor drains shall be of a size to serve the intended purpose. Minimum size trap shall be 2 inches. The only correct answer to this question is choice "(A)." Inasmuch as Section 7.16.2 of the National Standard Plumbing Code Illustrated provides that the"[m]inimum size trap shall be 2 inches," the response selected by Petitioner, choice "(B)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Question 3--General Trade Knowledge, Division II, Session Four Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to determine which of the devices listed, according to NFPA 99- Health Care Facilities, was required to be located on a medical gas line immediately outside of each vital life-support or critical care area. Section 4-4.1.3.2 of NFPA 99- Health Care Facilities provides as follows: A shutoff valve shall be located immediately outside each vital life-support or critical care area in each medical gas line, and located so as to be readily accessible in an emergency. Valves shall be protected and marked in accordance with 4-6.4.1.2. All gas-delivery columns, hose reels, ceiling tracks, control panels, or other special installations shall be located downstream of this valve. It is clear from a reading of the pertinent portions of NFPA 99- Health Care Facilities that the only correct answer to Question 3 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(C)." The response selected by Petitioner, choice "(B)," is incorrect. Petitioner therefore appropriately received no credit for this question. Question 25--General Trade Knowledge, Division II, Session Four Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination was a multiple choice question that was clear and unambiguous and covered subject matter with which the applicants should have been familiar. It required the applicants to identify which of the piping materials listed would be suitable for use in a fuel gas system according to NFPA- 54 National Fuel Gas Code. Section 2.6 of NFPA 54- National Fuel Gas Code describes the "acceptable piping materials and joining methods" for a fuel gas system. It provides, in pertinent part, as follows: 2.6.2 Metallic Pipe. Cast-iron pipe shall not be used. Steel and wrought-iron pipe shall be at least of standard weight (Schedule 40) and shall comply with one of the following standards: Standard for Welded and Seamless Wrought- Steel Pipe, ANSI/ASME B36.10. Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated Welded and Seamless, ASTM A53; or Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service, ASTM A106. Nodular (ductile) iron pipe shall comply with one of the following standards: Standard for Ductile-Iron Pipe, Centrifugally Cast, in Metal Molds or Sand- Lined Molds, for Gas, ANSI A21.52; or Specification for Ductile Iron Pressure Pipe, ASTM A377. Such pipe shall be not less than 3-inch size, shall not be welded, and shall be used only underground outside building foundation boundaries, or above ground, provided that joints are properly restrained against movement and separation. It is clear from a reading of the pertinent portions of NFPA 54- National Fuel Gas Code that the only correct answer to Question 25 of Session Four of the General Trade Knowledge (Division II) portion of the Certification Examination is choice "(A)." The response selected by Petitioner, choice "(D)," is clearly incorrect. Petitioner therefore appropriately received no credit for this question. Isometric Drawings In Session Three of the General Trade Knowledge (Division II) portion of the Certification Examination the applicants were given "five (5) problems relating to the interpretation of various plumbing codes as they pertain to piping and equipment systems illustrations as are commonly used on construction drawings and in the plumbing industry." For each problem the applicants were given a floor plan or "plan view," as well as a "blank isometric sheet" on which they were required to "develop an isometric drawing from each of the floor plans in the space provided . . . compl[ying] with applicable codes and the directions given in the problem." The following "plumbing isometric drawing criteria" were listed in the examination booklet: Listed below are the criteria used to evaluate all isometric drawings. Remember to display all symbols and the directions of flow. You must meet all the criteria specified, for each drawing to obtain credit. 1.0 Proper Orientation of Fixtures and Piping in Reference to the Floor Plan All fixtures and piping must be properly oriented as outlined by the floor plan. 2.0 Display of Symbols on Isometric Drawings All symbols must be displayed in the correct manner. 3.0 Indication of Direction of Flow as per the National Standard Plumbing Code Illustrated 1993 and the 1995 supplement The direction of flow must be indicated even if the direction is implied. . . 4.0 Elevations of Connections All connections must be displayed at the proper elevations. 5.0 Use of 30-60-90 Degree Angles All angles must be displayed at the proper orientation. 6.0 Code Compliance as per Standard Plumbing Code, 1994 with 1995 revisions, (SBCCI) The drawing must be in compliance with this code and pass inspection. 7.0 Representation of Floor Plan Elevations in Piping The piping must display the correct elevation in reference to the floor plan. The examination booklet also contained the following instruction: "Use only those symbols, abbreviations and drawing conventions as are contained in the approved references and this booklet." Petitioner's drawings in response to Problems 1, 3, 4, and 5 (Petitioner's Drawings 1, 3, 4, and 5) did not "meet all the criteria specified." Therefore, in accordance with the grading policy set forth in the examination booklet,2 Petitioner did not obtain any credit for these drawings. In Petitioner's Drawing 1, vents and fittings were not properly displayed, and the water closet line was not displayed at the correct elevation. Petitioner's Drawing 3 was not in compliance with applicable code requirements governing elevation. In addition, vents and direction of flow were not properly indicated in the drawing. Petitioner's Drawing 4 failed to display a vent stack going through the roof that was shown on the "plan view." In addition, the wash fountains were mislabeled and an inappropriate fitting was indicated on the drawing. In Petitioner's Drawing 5, vents, fittings, and direction of flow were not properly displayed.3
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 grades he received on the Business and Financial Management and General Trade Knowledge portions of the April 1996 plumbing contractor certification examination. DONE AND ENTERED this 21st 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 21st day of July, 1997.
The Issue The basic issue in this case concerns whether the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund.
Findings Of Fact On or about December 5, 1994, the Petitioners entered into a contract with an entity named James Plumbing, Inc., pursuant to which James Plumbing, Inc., agreed to perform specified plumbing work for a two-story duplex the Petitioners were building. The total contract price for the plumbing work was $10,000.00. Article 4 of the contract, titled "Progress Payments," contained the following language: On completion of rough-in plumbing $4,000.00 is due, at top out of all riser pipes and runs for plumbing an additional $4,000.00. The final payment of $2,000.00 to be paid upon final completion and hookup of all plumbing items and approval of same by City of Delray Building Department. A lien release will be required upon final payment by James Plumbing, Inc. Owner's (sic) will furnish lien release to James Plumbing, Inc., for execution. The contract described above also included language to the effect that the work to be performed under the contract would be commenced "as per owner/builder schedule," and the work would be substantially completed in the spring or summer of 1995 "as per schedule of owners." At the time of the signing of the contract described above, and at all other times material to this case, James Plumbing, Inc., was a Florida corporation that had been administratively dissolved by the Florida Department of State. At the time of the signing of the contract described above, and at all other times material to this case, an individual named James West was licensed by the CILB as a "Certified Plumbing Contractor." At the time of the signing of the contract described above, and at all other times material to this case, James West purported to be the "qualifier" for the entity known as James Plumbing, Inc. James West was the original incorporator of the corporation named James Plumbing, Inc. At all times material to this case, James West was the only person who had any ownership interest in, or had any control over the affairs of, the corporation named James Plumbing, Inc. James West, doing business under the name of the defunct corporation named James Plumbing, Inc., finished the "rough-in" in June of 1995 and finished the "top out" in March of 1996. Consistent with the terms of the contract, he was paid $4,000.00 in June of 1995 and he was paid $4,000.00 in March of 1996.1 For several reasons not material to the issues in this case, progress on other aspects of the construction project took longer than expected and in was not until the spring of 1999 that the Petitioners contacted James West to schedule the completion of the plumbing work under the contract signed in December of 1994. As a result of disagreements regarding the scheduling of the plumbing work, by letter dated April 12, 1999, the Petitioners advised James West that they had elected to terminate the plumbing contract dated December 5, 1994. Neither James Plumbing, Inc., nor James West individually ever performed the work that remained to be performed under the contract dated December 5, 1994, after the "top out" that was completed in March of 1996. In order to finish the plumbing work that remained to be done under the contract dated December 5, 1994, the Petitioners hired another plumbing contractor, Lee Wilder Plumbing, Inc. ("Wilder"). During the course of finishing the plumbing work, Wilder discovered that some of the work done by James West was incomplete and that some of the work done by James West had been done improperly and had to be redone. Wilder finished the work that remained to be done under the contract dated December 5, 1994, and also corrected the mistakes in the work that James West had done. For these services the Petitioners paid Wilder a total of $2,967.50. In order to correct the mistakes made by James West, it was also necessary to remove portions of existing interior walls and to then rebuild and paint those portions of the interior walls. This work on the interior walls cost the Petitioners an additional $1,000.00. As a result of the matters described in paragraphs 6, 7, and 8, above, the completion of the Petitioners' building was delayed. By reason of the delay, the Petitioners lost rental income in the amount of $4,350.00. The Petitioners filed a civil action in the County Court in Palm Beach County, Florida, against James West seeking to recover compensation for the harm caused by the failure of James West to properly perform his obligations under the contract of December 5, 1994. On September 3, 2002, the Petitioners obtained a final judgment against James West, individually. The judgment was in the total amount of $8,082.35, comprised of the following elements: Plumbing completion and repairs $2,967.50 Demolition and repair of walls $1,000.00 Cost of water heaters2 $400.00 Loss of rental income $4,350.00 Subtotal $8,717.50 Less $2,000.00 set off ($2,000.00) Plus prejudgment interest $1,364.85 Total Judgment $8,082.35 The final judgment includes the following language: Under the contract, work was to be completed by spring or summer, 1995. The Defendant actually finished the top-out installation in 1996 but the project was delayed due to a dispute the Plaintiffs had with the city in regard to paving an alley. The Plaintiffs contacted the Defendant in 1999 to finish the work, however, the Defendant requested additional money which he wanted up front. The Plaintiffs did not mind the additional money but objected to paying up front. They terminated the 1994 contract and hired Lee Wilder Plumbing, Inc., to complete the job of installing the fixtures. In May, 2000, the Plaintiffs discovered there was no hot water. The Defendant refused to come out and check on the problem so Lee Wilder Plumbing, Inc., was called. The evidence showed that cuts had to be made in the walls and floor to find the problem. While the Defendant asserts that the problem was crossed pipes which was easy to correct, he never came out to look at the job site. Instead, the evidence showed that there was a hot water pipe missing, that the two cold water pipes were not connected to anything and a new pipe had to be installed getting hot water to the second floor. The evidence further showed that the Defendant did all of the rough plumbing under the slab and top- out plumbing inside of the walls. Pursuant to F.S. 95.11(3)(c), the Court finds the plumbing defect to be a latent defect. Further, the Court finds that the Defendant is responsible for that latent defect. In addition to damages to correct the latent defect, the Plaintiffs seek damages for the cost of hot water heaters and loss of rent/loss of use for three months delay to correct the plumbing problem. It is well settled that the purpose of damages are (sic) to place the injured party in the position it would have been. Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. 4th DCA 1999). The Court finds that Plaintiffs are entitled to [re]cover the cost of repairing the latent defect in the amount of $2,967.50 and $1,000.00 for the cost of repairing the walls and floor. Further, the Plaintiffs are entitled to recover for the cost of the water heaters of $400.00 and loss of rental income for one unit at $4,350.00. In addition, the Defendant is entitled to a set off of $2,000.00, as the Plaintiffs agreed to pay the Defendant $10,000.00 for the plumbing work in which they actually paid the Defendant $8,000.00. The measure of damages is the cost to complete contract price because parties already agreed to pay contract price for completed work. American Structural Systems, Inc. v. R. B. Gay Const. Co., Inc., 619 So. 2d 366 (Fla. 1st DCA 1993). Measure of damages is contract price diminished only by damages suffered. Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989). In addition to the final judgment described above, the Petitioners also received a judgment for costs against James West in the amount of $972.27. The amounts of the final judgment ($8,082.35) and the judgment for costs ($972.27) total $9,054.62. Following the entry of the judgments against James West, the Petitioners made numerous unsuccessful efforts to satisfy the judgment. Despite diligent search and inquiry, the Petitioners were never able to locate any property of James West that could be applied to the satisfaction of the judgments against James West. On or about November 27, 2002, the Petitioners signed a claim form seeking restitution from the Construction Industries Recovery Fund. Their claim was received by the CILB on or about December 3, 2002. Following consideration of the Petitioners' claim, the CILB voted to deny the claim. An order to that effect was issued and filed on January 28, 2004. In that order the CILB gave the following reasons for its denial of the claim: Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants filed to satisfy all requirements for payment from the Recovery Fund. There is no evidence in the file to support the amount of actual damages suffered. Section 489.141(2)(c), states that a person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713. There is no evidence in the file that the liens filed by subcontractors were valid liens under Chapter 713, Florida Statutes. At the beginning of the final hearing the Respondent stated on the record that it was still relying on the reason set forth in subparagraph a, above, but that it was abandoning the reasons for denial set forth in subparagraphs b and c, above. The Respondent also stated on the record that it was of the view that there were two additional reasons for denying the subject claim. The two additional reasons were described as follows: That the underlying court judgment on which the Petitioners' claim is based is not a judgment based on an act that constitutes a violation of subsections (g), (j), or (k) of Section 489.129, Florida Statutes, and That the corporation for which the individual contractor purported to be the qualifier was not licensed at the time of the violations that caused financial harm to the Petitioners. The Petitioners' first notice of the CILB's change in position appears to have been when these two new reasons were stated during the opening moments of the final hearing. In its proposed recommended order the Respondent raises for the first time a third new reason for denying the subject claim. This third new reason is set forth in the underscored portion of the following language from paragraph 28 of the Respondent's proposed recommended order: 29. An asset search indicates that there are no assets from which the judgment can be satisfied. However, James West held at the time of the judgment, and still holds today, an active license. There is no proof that Petitioners exhausted all efforts and demonstrated an inability to collect the judgment as required by Rule 61G4-21.003(2), Florida administrative Code.
Recommendation In view of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund in the amount of their final judgment and their cost judgment, for a total reimbursement amount of $9,054.62. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2004.
The Issue The issue is whether Petitioner's application to sit for the water well contractor examination should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On January 9, 2004, Petitioner, who resides in Baker County, Florida, filed his application with the District requesting that he be allowed to sit for the water well contractor examination. The requirements for qualification to take the examination are set forth in Florida Administrative Code Rule 62-531.300. Relevant to this controversy is the requirement that an applicant present "satisfactory proof of two years experience in the water well construction business." This requirement is normally met by the applicant providing a list of at least ten water well jobs he has completed during a consecutive 24-month period (together with their locations, major use, and approximate depth and diameter), the name and address of the owner of the well, and the approximate date the activity took place. See Fla. Admin. Code R. 62-531.300(6)(a). If the work has been completed in Florida, the applicant is also required to submit copies of completion reports for each of the ten wells. Id. Completion reports are filed by the contractor with the District within thirty days after the work is completed. See Fla. Admin. Code R. 40C-3.411. Finally, the applicant must submit letters from three persons attesting to the length of time the applicant has been working in the water well construction business as a major activity. See Fla. Admin. Code R. 62-531.600(6)(a). Alternatively, an applicant may present "satisfactory proof of equivalent experience," which may be accepted by the District "on a individual basis." See Fla. Admin. Code R. 62- 531.300(6)(b). While this option has rarely, if ever, been used by any applicant, at hearing the District suggested that this provision would allow an applicant to submit other credible documentary evidence, such as affidavits, attesting to the applicant's equivalent experience. Mr. Julian C. Varnes, Jr., a District water resource representative III, is in charge of reviewing water well contractor applications in four northeast Florida counties, including Baker County. Mr. Varnes reviewed Petitioner's application and concluded that he had failed to submit proof of two years' experience in the water well contracting business or satisfactory proof of equivalent experience, as required by the rule. In this case, Petitioner submitted ten completion reports with his application, but none of the reports indicated that he had been involved on those projects, and Petitioner acknowledged at hearing that he could not recall if he was even present on the job site. This is probably because the reports related to jobs performed between November 10, 1982, and July 31, 1985, by his father, a licensed water well contractor, when Petitioner was less than fifteen years old. In addition, the reports submitted by Petitioner covered work performed over a 32-month period, rather than over a 24-month period, as required by the rule, and some of the reports did not have the complete address of the location of the well. By letter dated February 4, 2004, the District advised Petitioner that his application was deficient because he had failed to submit the information required in Florida Administrative Code Rule 62-531.300(1)(b) and (6) relative to experience. The letter advised Petitioner that he must submit an "acceptable list of ten wells together with their completion reports, for wells that [he had] constructed, repaired, or abandoned, with completion dates distributed over a consecutive 24-month time period." Further telephonic discussions between Petitioner and District personnel concerning the request for additional information occurred on March 25 and 29, 2004, but they did not resolve the District's concerns. On June 15, 2004, the District staff again notified Petitioner in writing that he must submit the requested information within 30 days or his application would be denied. When no response was received from Petitioner, on July 27, 2004, the staff issued a Technical Staff Report recommending that the application be denied because of Petitioner's failure to comply with the requirements of Florida Administrative Code Rule 62- 531.300(1)(b) and (6). On August 23, 2004, a Notice of Staff Intent to Recommend Denial of Water Well Contractor Application No. 7300 and Notice of Rights was issued by the District. Petitioner's request for a hearing was then filed. After his first request for a hearing was dismissed, on November 18, 2004, Petitioner filed an amended request for a hearing. In that request, he alleged that the District was "not capable of locating completion reports filed by [Petitioner] and/or his father"; that the experience of he and his father was well known to two District staffers; that he had purchased a well drilling company from another individual and operated under the seller's license for over a year; that he is entitled to licensure because he has satisfactory equivalent experience; and that his father has paid all outstanding fines previously imposed by the District. As relief, Petitioner has requested that he be allowed to take the contractor's examination. At hearing, Petitioner explained that his father was in the water well contracting business for twenty years, and that beginning in 1983, when he was thirteen years old, he had helped his father on "hundreds of jobs" until his father's retirement in 1994. However, Petitioner cannot recall the names and addresses of customers who were serviced by his father's business, which is necessary in order for the District to retrieve completion reports presumably filed by his father. Because of the large number of completion reports filed by contractors throughout its multi-county jurisdiction, in order to retrieve one, the District must have the following information: the year the job was completed, the county in which the job was performed, and the address (township and range) of the well's owner. Petitioner is unable to provide this information.1 In addition, Petitioner stated that he had purchased a water well contractor's business (from Tim Johnson) shortly after his father retired in 1994 and that he operated the business under Mr. Johnson's license for a little more than a year. Although Petitioner produced no documentation concerning jobs he may have performed under Mr. Johnson's license, even if he had, that work would still constitute less than 24 consecutive months of experience, as required by the rule. Petitioner further asserted that Mr. Varnes, who oversees the water well contractors in Baker County, personally "knows" that he is an experienced well driller (having gained such experience through working for his father for many years) and that he possesses the skills necessary to take the examination. However, Mr. Varnes did not agree with this assertion. Finally, Petitioner asked that he be allowed to take the examination, which would be the best indicator of whether he possesses the necessary knowledge to be a contractor. He also pointed out that each completed project must be inspected by a District employee, and that such inspections would verify and ensure that his work is satisfactory. However, the rules require that before the examination can be taken, certain requirements must be met. Petitioner has not satisfied those requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order denying Petitioner's application to sit for the water well contractor examination. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 25th day of January, 2005.
Findings Of Fact William R. Rifenburgh, Jr. is licensed as a certified general contractor (License No. CG C011375), certified pool contractor (License No. CP C010307) and registered pool contractor (License No. RP 0023263). Respondent held the above licenses at all times material to this action. In early 1978, Rifenburgh entered an oral contract with Personalized Construction Company to install a Nautilus Spa at a house this company was constructing at 9186 Northwest 21st Street, Coral Springs. Respondent then installed the spa exclusive of deck, electrical and brick work. Periodic inspections of the spa project were conducted between February and December, 1978, by the City of Coral Springs Building Department. The facility did not pass final inspection because of electrical wiring deficiencies and the purchaser's contention that the spa lost water. A follow-up final inspection has never been requested. The house was purchased by Nathaniel Gerold in March, 1978. Gerold paid about $5,200 to Personalized Construction Company for the spa, but later recovered this amount in a judgment against Personalized Construction. Between May and December, 1978, Gerold called Respondent numerous times regarding the inability of the spa to hold water. Nothing substantial was done by Respondent during those months. However, Respondent did return to the site in January, 1979, at the urging of the Coral Springs Building Department, but was refused access to the property by Gerold. As a result of Gerold's complaints, the City of Coral Springs Building Department withheld Respondent's building permit privileges beginning in March, 1980. However, no hearing was held nor was formal disciplinary action taken by the municipality. Respondent's building permit privileges were restored by the Building Department in February, 1981, on advice of the City Attorney. Respondent and Personalized Construction had several disagreements regarding the amount and schedule for payments to Respondent. However, Respondent was paid in May, 1978, by Personalized Construction for completion of the project, and was not a party to the lawsuit wherein Gerold recovered from Personalized Construction for the defective spa. Personalized Construction subcontracted the deck work, and this subcontractor was responsible for breaking some of the spa plumbing Respondent had installed. Although the underground pipes were repaired, they remain a possible source of water loss. It was not established if the current water loss is occurring through these pipes, from leaks in the prefabricated spa or through normal evaporation.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be DISMISSED. DONE AND ENTERED this 16th day of June, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER 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 16th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Andrew M. Chansen, Esquire Suite 108 2000 East Oakland Park Boulevard Ft. Lauderdale, Florida 33306
