The Issue This is a bid challenge proceeding in which the Petitioners seek relief on the basis of allegations that the Respondent engaged in conduct which was fraudulent, arbitrary, illegal, or dishonest regarding the award of contracts under RFP No. 96C- 010G, Asbestos and Industrial Hygiene Consulting Services. The Petitioners assert that if their proposals were properly evaluated, they would both be entitled to contracts under the subject RFP. Specific issues raised by the Petitioners are as follows. The formal written protest filed by Petitioner Gaudet Associates, Inc. ("Gaudet"), is in the form of a letter dated October 20, 1995. That letter raises numerous issues in twelve numbered paragraphs. At hearing Gaudet announced that it was pursuing only three basic issues. The essence of those three issues is set forth in paragraphs 2, 3, 4, 6, and 7 of Gaudet's formal written protest. Reduced to their simplest terms, the three issues Gaudet pursued at hearing are: Whether it was arbitrary for the evaluation committee to assign a seventy dollar per hour rate to an "office manager" position in its evaluation of Gaudet's proposal. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting Gaudet and allowing Gaudet to clarify its proposal. Whether it was arbitrary for the evaluation committee to deduct points from Gaudet's proposal because Gaudet did not list an architect in its proposal. The formal written protest filed by EnHealth Environmental, Inc. ("EnHealth"), is in the form of a letter dated October 19, 1995. That letter raises two basic issues, each with two sub- issues. Reduced to their simplest terms, those issues are: Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in compliance with Section 496.006, Florida Statutes. Whether it was arbitrary or illegal for the School District to award contracts to proposers who were not, or might not be, in compliance with Section 496.007, Florida Statutes. Whether it was arbitrary for the evaluation committee to contact some proposers and allow them to clarify their proposals without also contacting EnHealth and allowing EnHealth to clarify its proposal. Whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score based on the assumption that EnHealth's hourly rates for services did not include supplies, materials, and equipment necessary to provide those services. At the formal hearing, EnHealth for the first time raised two additional issues; namely, (a) whether it was arbitrary for the evaluation committee to assign a sixty dollar per hour rate to an "office manager" position in its evaluation of EnHealth's proposal, and (b) whether it was arbitrary for the evaluation committee to deduct points from EnHealth's score because EnHealth did not have a professional engineer or a licensed architect.
Findings Of Fact General matters On or about August 23, 1995, the School District of Palm Beach County issued a request for proposal titled Request For Proposal (RFP) For Asbestos And Industrial Hygiene Consulting Services, which was identified as SB 96C-010G. Seventeen vendors submitted proposals in response to the subject RFP. During the course of evaluation of all of the proposals, each proposal was assigned a point score. Following evaluation of all proposals, the School District proposed to award contracts to the three proposers with the highest point scores. Those proposers and their scores were as follows: Entek Environmental & Technical Services, Inc. 281 points Atlantic Coast Services Corp. 267 points Evans Environmental & Geological 265 points Petitioner EnHealth, with a total of 257 points, was ranked fourth. Petitioner Gaudet, with a total of 256 points, was ranked fifth. The School District did not offer contracts to EnHealth or Gaudet. Gaudet, EnHealth, and both of the Intervenors all submitted timely responsive proposals. The specifications The specifications for the subject RFP include the following provisions regarding the School Board's reservations of rights: The District reserves the right to accept or reject any or all proposals. The District reserves the right to waive any irregularities and technicalities and may, at its sole discretion, request a re-submittal or other information to evaluate any or all proposals. * * * The District reserves the right to: (1) accept the proposals of any or all of the items it deems, at its sole discretion, to be in the best interest of the District; and (2) the District reserves the right to reject any and/or all items proposed or award to multiple proposers. The District reserves the right to give preferences to the award to those firms with the highest ranking; however, nothing herein will prevent the School Board of Palm Beach County, Florida, from making multiple awards and to deem all proposals responsive, and to assign work to any firm deemed responsive. The specifications for the subject RFP include the following provisions regarding comunications between proposers and the School Board: In order to maintain a fair and impartial competitive process, the District must avoid any oral communications with prospective proposers during the proposal preparation and evaluation period. However, all proposers will be provided, in writing, with both the questions and the responses to any inquiries (other than administrative or procedural details). Send all inquiries to attention: Ms. Gaea Peary, Buyer Procurement Department School District of Palm Beach County 3326 Forest Hill Boulevard West Palm Beach, FL 33406 (407) 434-8412 All written questions and inquiries are due no later than September 13, 1995. The specifications for the subject RFP include the following provisions regarding the proposal evaluation process: An Evaluation Committee, consisting of district personnel, will be appointed by the Superintendent of Schools or her designee. RFPs are received and publicly opened. The Evaluation Committee will convene, review and discuss all proposals submitted. The Evaluation Committee, at its sole discretion, may require any/all proposer(s) to attend an interview in order to further clarify or evaluate any proposal(s). The interview may be used as a factor in evalua- tion of any/all proposal(s). The Evaluation Committee will individually score or rate each proposal in accordance with the evaluation criteria, as listed below. The Evaluation Committee will have central responsibility for reviewing and evaluating all proposals submitted in response to this RFP. The Evaluation Committee will act as advisor to the District. The Evaluation Committee will recommend award to one or more proposer(s), to the Procurement Department Coordinator. The Procurement Department Coordinator will prepare and submit an agenda item to the Superintendent of Schools, Palm Beach County, Florida. The Superintendent will recommend to the School Board, the award or rejection of any and/or all proposal(s). The School Board will award or reject any or all proposal(s). Section 10.0 of the specifications for the subject RFP contains the following provisions regarding the evaluation criteria to be used by the Evaluation Committee: EXPERIENCE AND QUALIFICATIONS OF THE FIRM: (Maximum 20 points) The firm must hold appropriate licenses, permits, and insurance to operate in the State of Florida. At minimum, firm must be a licensed asbestos consultant as detailed in Chapter 455, Florida Statutes, and employ acertified industrial hygienist. Submit copy of all required licenses and permits. EXPERIENCE AND QUALIFICATIONS OF FIRM'S STAFF: (Maximum 20 points) The qualifications and experience of the firm's staff will be reviewed from information submitted in the proposal documents. FIRM'S LOCATION AND TIME CONSIDERATION: (Maximum 10 points) Geographical location of the firm and field staff will be considered regarding how it relates to availability and timely scheduling of services. CAPABILITIES OF THE FIRM: (Maximum 25 points) The District is interested in contracting with firms capable of providing a broad range of asbestos and industrial hygiene consulting services. Asbestos consulting services needed include: asbestos abatement design and coordination, asbestos abatement supervision, preparation of abatement reports, facility surveys in accordance with AHERA, asbestos management plan development and updating, sampling and analyses for bulk and air samples, all record keeping for the District's asbestos management program, claims preparation for the Manville Property Settlement Trust and other related duties. Industrial hygiene consulting services needed may include indoor air quality assessments, hazard assessments, ventilation assessment, radon measurement and mitigation, laboratory services, personal monitoring and other related activities. PRICE PROPOSAL: (Maximum 25 points) The fees listed in the proposal document shall remain fixed for the first year of the contract. However, the fees may be subject to adjustment in subsequent years based on changes in the National Consumer Price Index for the prior calendar year as published by the US Department of Commerce, Division of Labor. The price adjustment will be considered upon written request from the firm. Section 14.1 of the specifications for the subject RFP contains the following language: 14.1 Federal, state, county and local laws, ordinances, rules and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the proposer(s) will in no way be a cause for relief from responsibility. Section 20.1 of the specifications for the subject RFP contains the following language: 20.1 The proposer(s) will be responsible for obtaining any necessary permits and licenses and will comply with laws, rules, and regulations whether state or federal and with all local codes and ordinances without additional cost to the District. No one filed a protest challenging the specifications of the subject RFP. The evaluation process All of the proposals were evaluated by an evaluation committee comprised of three School District employees; Chris Skerlec, Robert Mayfield, and Dan Whetstone. The evaluation committee rated each of the seventeen proposals on the basis of each proposer's responses to specific questions related to the five categories of evaluation criteria and assigned a point value to the responses given by each proposer. For each proposer the evaluation committee than totalled the points scored in each of the five categories. During the course of the evaluation of the proposals, one of the members of the evaluation committee contacted several of the proposers and gave them an opportunity to clarify information in their respective proposals prior to the scoring of those proposals. Neither Gaudet nor EnHealth was contacted and given such an opportunity. The evaluation committee as a whole did not conduct any of the "interviews" provided for by Section 9.4 of the RFP specifications. The act of allowing some proposers to clarify their proposals prior to scoring gave those proposers an unfair advantage over proposers like Gaudet and EnHealth who were not afforded such an opportunity. Evaluation of Gaudet's proposal The evaluation committee deducted points from Gaudet's total score based on a value the committee assigned to an "office manager." Gaudet does not employ an office manager. Gaudet does not bill its customers for office manager functions because it treats those functions as part of its overhead. Gaudet neither proposed nor intended to charge the School District for the performance of office manager services. Gaudet's proposal does not contain any reference to a proposed charge to the School District for the services of an office manager. The subject RFP specifications do not require that a proposer employ an office manager, nor do they require that a proposer charge the School Board for the services of an office manager. In scoring the price proposal section of the subject RFP, the evaluation committee selected five categories of job responsibilities and assigned a price to each of those categories for each proposer based on job titles and duties described in each proposer's proposal. The five job categories used by the evaluation committee were: asbestos consultant, office manager, project manager, technician, and clerical. Mr. Skerlec devised this price proposal evaluation methodology; the two other evaluators merely followed Mr. Skerlec's method. Mr. Skerlec's methodology was not based on his individual experiences with the pricing details of the proposing firms. Rather, it was based on his experience with other consultants who had previously provided similar services to the School District. This methodology was flawed and produced unfair results because it was based in part on arbitrary and unwarranted assumptions about some of the proposals, rather than on information contained in the proposals. In scoring Gaudet's price proposal, the evaluation committee applied a value of seventy dollars per hour for office manager services. The committee members did not obtain this value from the proposal submitted by Gaudet because Gaudet's proposal did not list an office manager. Rather, the evaluators concluded that someone must perform office manager duties at Gaudet and Gaudet must charge the School District some price for office manager services. Based on these conclusions, the evaluators then assumed that Gaudet would charge seventy dollars per hour for the services of an office manager. The members of the evaluation committee deducted a total of thirty points (ten points each) from Gaudet's total score due to the assignment of a seventy dollar per hour value to the nonexistent "office manager" position. If those thirty points were to be added back to Gaudet's total point score, Gaudet would have received a total of 286 points. With a score of 286, Gaudet would have been one of the top three proposers. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to whether Gaudet proposed to charge for the services of an office manager and, if so, how much Gaudet proposed to charge. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted Gaudet to seek clarification as to any other aspect of Gaudet's proposal. The evaluation committee also deducted points from Gaudet's overall score based on the fact that Gaudet does not employ a licensed architect. Section 30.0 of the RFP specifications asks whether the proposer has a professional engineer and/or a licensed architect "on staff." Each of the evaluators deducted points from Gaudet's score because Gaudet does not employ a licensed architect. A total of nine points was deducted from Gaudet's score on the basis that it did not employ an architect. Evaluation of EnHealth's proposal The evaluation committee deducted points from EnHealth's total score based on the assumption that EnHealth proposed to charge the School District for equipment independent of the charge for personnel. The base price for personnel, listed at Section 34.1(A) of EnHealth's proposal, was intended by EnHealth to include all equipment, supplies, and materials necessary to perform the work required, without an additional charge for such equipment, supplies, and materials. Such intent was not clearly stated in Section 34.1(A) of EnHealth's proposal. Some other proposers did clearly state such an intent in their proposals. Section 34.1(B) of the RFP specifications requires each proposer to: "Attach a price list for all equipment, supplies, and services offered to the District. In response to this requirement, EnHealth included the following information in its proposal: Equipment Daily Weekly Personal Monitoring Pumps $40.00 $160.00 Hi-volume Sampling Pumps $35.00 $115.00 Anderson-Graseby N-6 Sampler & Pump Kit $55.00 $180.00 Additional IH sample equipment can be provided upon request. Rental costs will be negotiated based on equipment needed. Shipping charges to be paid by School Board. Equipment is to be returned to EHE in good condition and repair, wear from reasonable and proper use expected. Clean-up and decontamination charges of $50 per item will apply if such service is deemed necessary. School Board is responsible for damage to equipment due to abuse, misuse, or negligence and agrees to pay repair or replacement cost. EnHealth did not intend to charge the School District for the use of the pumps listed in Section 34.1(B) of its proposal unless the pumps were used by School District personnel. The members of the evaluation committee deducted a total of nine points (three points each) from EnHealth's total point score due to the assumption that EnHealth planned to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. If these nine points were to be added back to EnHealth's total point score, EnHealth would have received a total of 266 points. With a score of 266, EnHealth would have been one of the top three proposers. During the evaluation process, none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to whether EnHealth proposed to charge the School District separately for personal monitoring pumps and high volume sampling pumps when such pumps were used by EnHealth personnel to provide services. Similarly, during the evaluation process none of the evaluators (nor anyone else from the School District) contacted EnHealth to seek clarification as to any other aspect of EnHealth's proposal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a Final Order in this case concluding that the evaluation of the proposals submitted in response to the subject RFP was conducted in an arbitrary manner which was fundamentally unfair to the Petitioners in these cases and curing the fundamental unfairness by either re-evaluating all proposals or by re-bidding the project with revised specifications. DONE AND ENTERED this 29th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner Gaudet: Paragraphs 1 through 7: Accepted in substance. Paragraph 8 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 9 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 10 (and its many subparagraphs): Rejected as comprised primarily of argument, conclusions of law, and summaries of testimony, rather than proposed findings of fact. (Based on the evidence the Hearing Officer has made findings on the subjects addressed by these subparagraphs that are generally consistent with the views advanced by the Petitioner Gaudet.) Paragraph 11: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 12: Accepted in substance. Findings submitted by Petitioner EnHealth: Paragraphs 1 through 4: Accepted in substance. Paragraph 5: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 6: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest. Paragraphs 7 and 8: Accepted, but only because they are relevant to issues raised by another party. Paragraphs 9 and 10: Rejected as irrelevant because EnHealth did not raise any issue about the office manager in its formal protest. Paragraph 11: Accepted in substance, but with the deletion of editorial or argumentative comments. Paragraph 12: First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Paragraphs 13 and 14: Accepted in substance. Paragraph 15: Rejected as primarily argument, rather than proposed findings of fact. Paragraph 16: First sentence rejected as argument. Second sentence accepted in substance. Paragraph 17: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue. Paragraphs 18, 19, and 20: Rejected as primarily argument, rather than proposed findings of fact. Paragraph 21: Accepted in part and rejected in part. Accepted that nine points were deducted from EnHealth's score based on the pump charge issue. No points were deducted because of the office manager issue. Paragraphs 22 through 28: Rejected as irrelevant because EnHealth did not raise any issue about the engineer or architect in its formal protest. Paragraph 29: Accepted. Paragraphs 30 and 31: Accepted in substance with some unnecessary details omitted. Paragraph 32: Rejected as argument or as conclusion of law, rather than proposed findings of fact. Paragraph 33: Accepted in substance. Paragraph 34: Up to first comma is accepted in substance; the remainder is rejected as argument or conclusion of law, rather than proposed finding of fact. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Rejected as subordinate procedural details that do not need to be included in the findings of fact. Paragraph 4: Accepted in substance, but with additional details in the interest of clarity and accuracy. Paragraphs 5 and 6: Rejected as subordinate procedural details that do not need to be included in the findings of fact. Paragraph 7: Accepted in substance, but with additional details in the interest of clarity and accuracy. Paragraph 8: Accepted. Paragraph 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted in substance. Findings submitted by Intervenors: (Neither Intervenor submitted any proposed findings of fact.) COPIES FURNISHED: Douglas Lambert, Esquire Fleming, Haile, Shaw & Gundlach, P.A. 11780 U. S. Highway One 3 Golden Beach Plaza, Suite 300 North Palm Beach, Florida 33409 Joseph W. Lawrence, II, Esquire Cummings, Lawrence & Vezina, P.A. 1600 South East 17th Street Causeway Suite 304 Fort Lauderdale, Florida 33316 Robert Rosillo, Esquire Legal Department School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33408-5813 Mr. Gary Butler Atlantic Coast Service Corporation Post Office Box 387 DelRay Beach, Florida 33447-0387 Norman Frank, Esquire c/o Kelly Evans, Vice President Evans Environmental & Geological 99 Southeast Fifth Street, Fourth Floor Miami, Florida 33131 Dr. Bernard Shulman Superintendent of Schools Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
Findings Of Fact The Respondent, Charles R. Boyd, was and is a certified general contractor in the State of Florida, and holds license number CG CO12754. Mr. Boyd was also the qualifying agent for Boyd-Scarp Construction Company. On May 13, 1983, the Boyd-Scarp Construction Company contracted with Paul and Debra Ciolli for the construction of a custom designed single family residence at 2385 Northeast Fallon Boulevard, Palm Bay, Florida. The contract price was $85,000. The Respondent and Thomas Scarp were equal partners in the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc. Mr. Scarp was also a licensed general contractor, but was primarily responsible for financial matters in the companies, and the Respondent was primarily responsible for supervision of construction. The Respondent designed the Ciolli home, and his draftsman prepared the plans. During the course of construction, the Respondent visited the site of construction a few times (no more than once a week), but relied primarily upon his superintendents to supervise. At that time, the Boyd-Scarp Construction Company had approximately 35 homes under construction throughout Brevard County. Respondent employed several superintendents of construction at the Ciolli home. The first, Tom Wright, was having personal problems, and the Respondent fired him. The second, Rick Shite, did not do an adequate job, and the Respondent fired him. The third, Dave Bryant, left Boyd-Scarp before the home was finished. The fourth, Bill Snyder, was primarily assigned to the punch list, as was the fifth, Dave Lightholder. Mrs. Ciolli visited the construction site daily, and on several occasions noticed defects or problems in the construction. She tried each time to contact the Respondent, who was responsible for construction, but was always referred to Mr. Scarp, who was responsible for financial matters. The framing subcontractor did an inadequate job framing the walls. Many of the walls were out of square, were not plumb and true, and had discernible waves in them after the drywall was installed. Some walls had a deflection of 1/2" in four feet. The Ciolli's hid the bowed wall in the kitchen by placing the refrigerator in a spot that otherwise would not have been used for that purpose. Ceilings were one to three inches out of square with the wall. The deflection was one inch in twelve feet in the master bedroom, and one inch in four feet in the master bathroom. In the bathroom, the deflection where the ceiling met the wall on a slant prevented the later installation of squares of mirror tile. The drywall was inadequately installed. Taping and bedding was inadequately done where the drywall met the ceilings. Joints were poorly taped, or not taped at all in some cases. Nails popped loose. Some of these defects were hidden by the Ciolli's with wallpaper. The interior walls had structural cracks at load bearing points, notably located beside the fireplace, at the sliding glass doors, over windows, and below windows. The roof trusses, as installed, were inadequate: A majority of the trusses were either not anchored to the tie beam with hurricane straps, or were inadequately anchored. This was caused by a combination of improper spacing of anchors on the tie beam and variations in the spacing of the trusses. (The trusses by plan were to have been 24 inches on center.) The trusses were not installed level and plumb. Several of the trusses did not have adequate contact for purposes of load-bearing on the tie beam, and were not shimmed. One truss had been cut and had been improperly scabbed back together with smaller stock and toe nails. At least one truss showed a space between the top chord and the perpendicular support, thus making the perpendicular support inadequate as a load bearing member. Trusses over the garage were originally constructed to span 22 feet 8 inches. One foot was cut from each end, and the trusses were installed as modified, since the plans called for trusses spanning 20 feet 8 inches. It is unclear from the evidence whether the trusses had been improperly modified on site by removal of the gang nail plates, and inadequately reassembled and renailed, or were originally delivered in a defective condition. The issue is irrelevant, however, because the trusses were inadequate as installed for the reasons described above. As a result of the inadequacies in the installation of the trusses, the ridge of the main roof sags in several places, and as much as four inches in one place. Sags in the one-half inch plywood roof sheathing also exist between truss top chords. Spaces exist between the top chords of the trusses and the plywood sheathing. These warps are caused by the inadequacies of the roof trusses, and may have also been exacerbated by warping in the sheathing before or during application. As a result of the foregoing roof inadequacies, roofing nails had worked loose, shingles were beginning to pop up in places, and the roof has serious leaks. See P. Ex. 22, photograph 6. The garage roof as completed was left with an open hole in it. The hole is six inches long and one-half inch wide. During thunderstorms, water pours through the hole into the garage, and damages the wall adjoining the garage and the house. As a result of the roof inadequacies, there is dampness in ceiling areas, the ceiling finish and paint is flaking, and there is a substantial amount of mildew on walls, ceilings interfaces with floors and walls, and in closets. Without hurricane anchors, the house is unsafe in a hurricane or other storm of high wind. The back porch slab is four inches in width and does not have steel reinforcing. The plans called for a slab to have a 12 by 8 inch turn down edge with steel reinforcing (as support for future construction). Mr. and Mrs. Ciolli were concerned about these defects, and told Mr. Boyd that they did not want to close without review by an engineer. The Ciolli's were told that if they did not close, Boyd-Scarp would sue them and sell the house to someone else. The Ciollis closed. Subsequently, the Ciollis hired Paul Holmlin, and engineer and an expert in residential construction, to inspect their new residence. As a result of that inspection, Mr. and Mrs. Ciolli sued. On August 16, 1985, Mr. and Mrs. Ciolli obtained a default judgment against the Boyd-Scarp Construction Company and Boyd-Scarp Enterprises, Inc., in the amount of $36,000. The Respondent has now formed a new company, Charles Boyd Homes, Inc. In the last three years, the Respondent has been actively constructing residences with his new company. He has built 60 to 70 new homes a year for the last three years in the price range of $150,000 to $500,000. The Respondent has not paid the Ciollis judgment. The Respondent corrected some of the drywall installation deficiencies, but has not corrected the wall framing deficiencies and the roof deficiencies. The Respondent was of the opinion that the defects discussed above were cosmetic. The continuous lintel block around the perimeter was structurally sound and adequate, and had no defects. The defects discussed in findings of fact 7 through 18 constitute gross negligence and incompetence in the practice of contracting, and were the direct result of the Respondent's failure to supervise properly the work as qualifying agent. The Respondent has been a general contractor in Brevard County for fourteen years and has constructed over six hundred residences in value from $50,000 to $500,000. The Respondent was awarded the designation "Builder/Developer of the Year" by the Melbourne City Council in 1978 and 1979, first prize in the Parade of Homes in 1984, 1986, and 1987, the Merit Award for Workmanship, and first price in the Suntree Parade of Homes for the last three years. He is the Director of the Brevard County Homebuilder's Association this year. The Respondent's livelihood would be detrimentally affected if the maximum disciplinary action is imposed. The Respondent received a letter of guidance from the Department of Professional Regulation for failure to display his certification number in a telephone directory advertisement. No other discipline has been levied against the Respondent.
Recommendation Since the damage to Mr. and Mrs. Ciolli has not been remedied, it is recommended that the Department of Professional Regulation, Construction Industry Licensing Board, enter its final order suspending the license of Charles R. Boyd for a period of six (6) months, and levying a fine of $2000. DONE and ENTERED this 15th day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2703 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Findings of fact proposed by the Petitioner: 6-11. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. The allegation that the linoleum was peeling is not in the administrative complaint. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 14.C. While there is clear and convincing evidence that the trusses were not uniformly 24 inches on center, the exact count of such deviations was not shown by clear and convincing evidence. There was too much conflict of expert testimony on the point. 14.F., and 25.F. There is clear and convincing evidence only that one truss chord was sawed through. The degree of spalling of exterior stucco was not proven by clear and convincing evidence. Sag of the garage roof was not proven by clear and convincing evidence. The last sentence is true, but subordinate, and is adopted by reference. 14.K. and P., 15-17, 20. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. This proposed finding of fact is not supported by clear and convincing evidence. This proposed finding of fact is not supported by clear and convincing evidence. 21.E. This proposed finding of fact is contrary to the stipulation of the parties entered into-on the second day of the hearing. 22-24, 25.A-E, G, 26-34. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. Findings of fact proposed by the Respondent: 2. The proposed finding that the supervisors were in constant contact with the Respondent and Mr. Scarp is not supported by credible evidence. 5-7. It is true that inspections were made by inspectors from the City of Palm Bay and the Veterans Administration. It is also true that the Respondent was not cited for any violations of any building codes, and that the VA inspector stated that the problems were cosmetic. But those inspectors evidentally did not inspect the roof and walls very closely, given the degree of the defects in those structural portions. The problems were not cosmetic. Moreover, those inspectors did not testify, and thus their observations are not evidenced in the record. The lack of hurricane anchors is a life safety defect. The truss system is structurally unsound in that it has caused the roof to warp, the shingles to deteriorate, and the roof to leak. The structure of a roof is intended not to leak. If it leaks, it is structurally unsound. The Respondent made no effective effort to correct the primary defects noted above. Had he done so, the defects would have been corrected. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James L. Reinman, Esquire REINMAN, HARRELL, SILBERHORN & GRAHAM, P.A. 1825 South Riverview Drive Melbourne, Florida 32901 William O'Neill, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 =================================================================
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Petitioner, the Department of State, Division of Licensing, enter a final order finding the Respondent, Velda Sue Hopkins, guilty of violating Sections 493.304(4), 493.313(6), and 493.319(1)(g) , Florida Statutes (1987), and imposing a fine of $500. RECOMMENDED this 27th day of June, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1988.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Roger L. Irven, is a certified general contractor holding license number CG C027873. At all time material hereto, Respondent was licensed as a certified general contractor, doing business as Irven Construction Company. DOAH CASE NUMBER 85-0714 On about June 25, 1978, Respondent pled guilty and was adjudged guilty of the felony offense of wanton endangerment in the Circuit Court of Oldham County, Kentucky. On July 25, 1978, the Respondent was sentenced to three (3) years probation by the Oldham County Circuit Court. The Respondent was represented by counsel. Respondent was placed on probation with certain conditions. One of the conditions was that the Respondent receive treatment in the infirmary for his epileptic condition. The Court ordered that the Respondent be hospitalized for four (4) months in the prison infirmary. The Department of Professional Regulation, Construction Industry Licensing Board received applications from the Respondent to take the certified contractor's examination on December 16, 1982, April 1, 1983, August 17, 1983 and December 7, 1983. On each application, Respondent answered in the negative indicating that he had never been convicted of any offenses in this state, or elsewhere, other than a traffic violation. Respondent took the Certified Contractor's Examination four (4) times. Respondent passed the examination on the fourth attempt. On March 14, 1984, Respondent was licensed as a certified general contractor. DOAH CASE NUMBER 85-3393 On November 1, 1984, the Respondent contracted with Kathy and Larry Evans, 5746 Wingate Drive, Orlando, Florida, to remodel their home at a cost of $6,700.00. On November 5, 1984, the Evans' paid Irven Construction $3,350.00 towards the contract price. The specifications for the remodeling work were prepared by Irven Construction. Mr. Evans was told by the salesman for Irven Construction that the remodeling would commence within fifteen (15) days of signing the contract and be completed within forty-five (45) days of the commencement, which amounted to sixty (60) days for total completion after signing the contract. No work was performed on the Evans project until December 19 or 20, 1984, when the windows were put in. The air conditioning duct work and heating elements were put in and the old oil furnace was removed. Respondent informed the Evanses that no work was done before this because he was ill. On January 3, 1985 Irven Construction entered into a contract with Central Air, Heating and Cooling, Inc. to perform air conditioning and heating work on the Evans' home at a cost of $3,195. A few days after entering into the contract, Central Air & Heating completed only the rough-in of the contracted work. The rough-in consisted of the installation of the heating and air conditioning ducts and the furnace installation, but not the installation of the condensing unit. Central Air & Heating was given cheeks for $1,278 by Irven Construction for the rough-in work it had completed. The checks were deposited by Central Air & Heating in its bank account, but were returned because insufficient funds were on deposit to cover them. Central Air & Heating notified Irven Construction about the returned checks; the Respondent stated that he would submit another check, but failed to do so. Because it was not paid by Irven Construction, Central Air & Heating sent a Notice to Owner to the Evanses. The Evanses also received a Notice to Owner from Window Works, Inc. for custom windows which had been ordered by Irven Construction, but never paid for. Window Works filed a lien for $600 against the Evans t property due to it not being paid for the custom windows. Subsequently, the Evanses were sued in civil court by Window Works for the amount owed under the lien. The Evanses were required to pay Window Works the amount owed plus other costs, totaling $1,800. Window Works was not paid because Respondent gave the money to one of his salesmen to buy the windows. The salesman, Nr. Renfuller, kept the money and put the windows on credit. At the time that Respondent wrote the check to Central Air & Heating, Respondent thought that there was enough money in his account to cover it. Nothing was done on the Evans project in accordance with the contract after the rough-in by Central Air & Heating. At the time of the cessation of the work, the Evans job was 60% complete and the value of the work completed was approximately $3,400. On December 12, 1984, Respondent contracted with Irving Bernstein, 1018 Matchlock Drive, Orlando, Florida, to build an enclosed porch for a price of $2,000. The Bernsteins discussed the completion date of the contract with the Respondent and his brother, Richard Irven. Bernstein was told that the remodeling would commence three (3) days after Irven Construction obtained the permit for the work and that the work would be completed within seven (7) days after that. Bernstein paid Irven $100 at the time of signing the contract. Before signing the contract, Respondent informed Bernstein that several sub-contractors were available to start the remodeling, and, that construction could start as soon as the contract was signed. After signing the contract, no one immediately appeared from Irven Construction to perform the remodeling. Bernstein made several calls to Respondent and left several messages, seeking to obtain information as to when someone was coming to begin the remodeling work. When Bernstein spoke with the Respondent, the Respondent informed him that he had to obtain three (3) bids. On January 2, 1985, Bernstein paid Irven Construction $975.00, making his total payment $1,075. Respondent obtained the building permit for the Bernstein project on January 9, 1985. At the end of January, 1985, Respondent and his son arrived at the Bernstein residence to start the remodeling job. Respondent and his son worked approximately three (3) hours that day, putting in 2 x 4's around the sides. The following day, Respondent's brother and son worked on the project for approximately three (3) hours, removing some tiles off of the roof and the side molding from the house. When they left they stated that they would return the following Monday: however, no one came that Monday. That Monday morning, Bernstein called Irven Construction and spoke with Respondent's brother, Richard Irven. Respondent's brother informed Bernstein that Respondent had a bad back and that completion of the job would be delayed. Bernstein requested the return of his money, but no money was ever returned by Irven Construction. On February 21, 1984, Respondent wrote a letter to Bernstein indicating that he wanted off of the job since it appeared to him that Bernstein did not want him to finish. At the time of the cessation of work by Irven Construction, appoximately 50% of the work had en completed. Both Respondent and Bernstein believed that there was a breach of contract by the other. Bernstein contracted with another contractor, Mark Spires Construction Company, to perform the remodeling work. Bernstein's contract with Mark Spires involved more work than the contract with Respondent. Bernstein's contract with Respondent was for a simple porch close-in with no substantial roofing work. Spires Construction Company re-leveled the beams and reconstructed the 2 x 4's of the framework. To effectuate the two (2) walls envisioned by the contract of Respondent, the existing beams were to be utilized. The only thing that Respondent had to do was to tie into the existing house. The Respondent took off the top row of tiles on the roof so he could tie it in. The only improvements Respondent made to the existing roof was "ducking and drying-in". On January 14, 1985, Sam Ross entered into a contract with Irven Construction, to remodel his home's porch, at a cost of $1,550. Ross chose Irven Construction because Irven Construction had contracted to remodel the porch of his neighbor, Nr. Bernstein, and the cost of the Bernstein job sounded reasonable. Ross was informed by Irven Construction that they would be working on both his job and Bernstein's job at the same time. At the time of signing the contract, Ross paid Respondent $775. Ross discussed the commencement and completion of the project with Respondent's brother, Richard Irven. Ross was told that the work would commence within ten (10) days of the signing of the contract and would take about five (5) days thereafter for total completion. Irven Construction delivered some supplies to his home at the same time supplies were delivered to the Bernstein project site. Because commencement of work on the project was slow, Ross called Irven Construction numerous times concerning the work on his home. Respondent eventually assigned an individual named Nark Withlow to perform work on the Ross project. However, Ross did not want Withlow to work on the job because Ross felt that a certified carpenter was needed; Mark Withlow was qualified as a remodeler. Thereafter, Ross refused to allow anyone from Irven Construction to work on his home because of his dissatisfaction with Mark Withlow's assignment to his job and because he discovered the problems that Bernstein and Respondent were having. Ross requested the return of his money from Respondent. Respondent offered, by letter dated February 21, 1985, to refund $513. Ross did not respond to Respondent's letter because he wanted a full refund and felt that Respondent's offer was "ridiculous." Ross later contracted with Mark Spires Construction to perform the remodeling work, which was eventually completed. The materials left at the-project site were used by Mark Spires Construction. The value of the goods and materials which were delivered to and remained at the Ross project was between $50 and $80.00. Ross sued Irven Construction in civil court and obtained a judgment for the full amount he paid Respondent, plus court costs. Respondent was involved in an automobile accident on July 3, 1984. As a result of the accident, Respondent suffered severe head, shoulder and back injuries. In November of 1984, Respondent was hospitalized with a "trimmed disc"; in January, 1985, Respondent briefly returned to active participation in the business but reinjured his back while working on the Bernstein project. After the July 1984 accident Respondent provided little or no control or supervision to his business and was bed-ridden frequently from July 1984 to March, 1985. In addition, the automobile accident caused Respondent's seizures to return. Respondent has suffered from a seizure disorder, i.e. epilepsy, since 1975. Respondent was seizure free from 1979 to 1983. The type of seizure that the Respondent suffers from affects his memory and decision making and may last for several days following a seizure activity. Since the accident in July, 1984, Respondent has been taking medication for his back pain, i.e. Darvocet, and medication for his seizures, i.e. Tegretol, 200 mg. From August 29, 1984 to March, 1985, Respondent was having heavy seizure activity and frequented the Epileptic Foundation of Orlando for treatment at least once a month or every six weeks. He was advised by the Foundation to always take his medication and to be with someone. During the same period, he was treated by a Dr. Litchfield, a chiropractor, at least two to three times a week. The Respondent's ability to give effective directions or make decisions was impaired due to his physical problems from August 1984 to March 1985. In August or September, 1984, Davis Chaffee began working with Respondent as a salesman. After about ten (10) days to two (2) weeks as a salesman, Respondent allowed Chaffee to run the business due to the Respondent being bedridden most of the time and not being able to function as a result of the accident of July, 1984. Davis Chaffee had no construction background; his experience was in sales and business administration. To assist Chaffee in running the business, Respondent prepared an outline which included a basic scale for bids. James NcCall served as the superintendent for Irven Construction. Respondent felt that NcCall was competent to be superintendent as long as he was supervised by Respondent. After Respondent's accident of July, 1984, McCall handled all the construction aspects of the business including overall supervision of the project. McCall continued as the superintendent on the jobs, handled bids and proposals and dealt with the prints, materials and subcontractors for all the jobs. Despite Respondent's reservations about McCall's abilities, McCall was allowed to literally "run the business" because of Respondent's physical problems. Davis Chaffee had the authority to approve contracts and prepare bids without consulting McCall. Chaffee was fired by Respondent in December, 1984. DOAH CASE NUMBER 85-4216 On September 27, 1984 Respondent contracted with Richard Loman to build an addition to Loman's residence at 783 Formosa Drive, Winter Park, Florida at a cost of approximately $20,000. Loman and Respondent discussed the commencement and completion date of the remodeling and Loman was told that the project would be completed within 45 days from approval of the plans and the signing of the contract. Loman paid Irven Construction $10,000 as a deposit, $500.00 on September 24, 1984 and $9,500 on October 2, 1984. In addition, Irven Construction received a contractor's draw of $3,333 on October 23, 1984 and $3,333 on November 5, 1984. As of November 5, 1984, the drywall, insulation, fixtures, toilet, vanity, heat and air, and the hot water heater remained to be completed. On January 16, 1985, the contract price was increased another $1,000 for additional electrical work which was requested by Loman. The work on the remodeling was progressing slowly and Loman repeatedly called Respondent to get someone out to complete the remodeling. Respondent repeatedly promised to send someone to complete the work. In February, 1985, a drywall person came out and completed the drywall. Loman received a letter dated February 1, 1985 from the Respondent. The letter indicated, among other things, that the Respondent was physically ill but had all intentions of complying with the contract and completing the remodeling and that he had a contractor who would contact Loman to arrange to complete the remodeling. Since the drywall person completed his work in February, 1985, no one has gone to the Loman's residence to complete the remodeling. No contractor has contacted Loman to arrange for the completion of the project and no money has been returned to Loman. At the time Irven Construction stopped work- on the Loman project, it was about 90% complete. Loman completed the job himself on June 1, 1985. Loman received, by certified mail, liens from Tillman's Plumbing and Jackson Drywall Service for the remodeling work done on his home under the contract with Respondent. Tillman's lien was $360 and Jackson Drywall's lien was $1,350. DOAH CASE NUMBER 85-4246 On August 29, 1985, Irven Construction entered into a contract with Stephen Dubin and his wife to remodel their family/living room at a cost of $7,200. In accordance with the modified specifications, electrical lights and an electrical fan were installed. James McCall, Respondent's superintendent completed most, if not all, of the electrical work. The project was completed and Irven Construction was paid in full. The Seminole County Building Department's records show that a building permit for the Dubin project was applied for, approved, and assigned a permit number, but never issued because it was not picked up. The Building Department's records also showed that no electrical permit was applied for. Respondent was required by the Seminole County Building Code to obtain a building permit before commencing the remodeling. After a building permit is issued, periodic inspections of the project site are required. Without a building permit, there are no inspections by the Building Department. During this period, the Respondent was having personal problems with the employee that was responsible for picking up the permit. The Respondent was unaware that the employee had failed to properly perform his duties by picking up the permit. Respondent was ill during this period and had very little input into the Dubin project.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED THAT: Respondent's license be suspended for a period of four (4) years, with the condition that he may be eligible to apply to the Board for reinstatement after a period of two (2) years and upon a showing satisfactory to the Board that his financial affairs are in good and sound condition and that he is physically capable of carrying on a contractor's business. Further, for the purposes of such an application for reinstatement, Respondent shall be required to appear before the Board for such questions as the Board feels appropriate and shall supply the Board with such documents as the Board feels necessary. DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986. COPIES FURNISHED: Errol H. Powell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stuart G. Green, Esquire 712 East Washington Street Orlando, Florida 32801-2994 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street. Tallahassee, Florida 32301 James Linnan, Executive Director Department of Professional Regulation P. O. Box 2 Jacksonville, Florida 32202 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Findings of Fact 2 and 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 7. Partially adopted in Finding of Fact 6. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as legal argument. Rejected as subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Rejected as unnecessary and subordinate. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Finding of Fact 34. Adopted in Findings of Fact 37 and 38. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 37. Adopted in Finding of Fact 38. Adopted in Finding of Fact 39. Adopted in Finding of Fact 39. Adopted in Finding of Fact 40. Adopted in Finding of Fact 40. Partially adopted in Finding of Fact 41. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 41. Adopted in Finding of Fact 49. Adopted in Finding of Fact 49. Partially adopted in Finding of Fact 51. Matters not contained therein are rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 50. Adopted in Finding of Fact 51. Adopted in Finding of Fact 51. Rejected as recitation of testimony. Adopted in Finding of Fact 51. Adopted in Finding of Fact 53. Rejected as a recitation of testimony. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 42. Adopted in Finding of Fact 43. Adopted in Finding of Fact 44. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 45. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. Adopted in Finding of Fact 48. Rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 18. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Adopted in Finding of Fact 24. Partially adopted in Finding of Fact 25. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Partially adopted in Findings of Fact 27 and 28. Matters not contained therein are rejected as not supported by competent and substantial evidence. Adopted in Finding of Fact 27. Rejected as a recitation of testimony and/or subordinate. Adopted in Finding of Fact-29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Partially adopted in Findings of' Fact 31 and 32. Matters not contained therein are rejected as subordinate. Partially adopted in Findings of Fact 31 and 32. Matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Adopted in Finding of Fact 33. Adopted in Finding of Fact 34.I Rejected as subordinate and unnecessary. Adopted in Finding of Fact 37. 111. Rejected as subordinate and unnecessary. 114. Rejected as subordinate and unnecessary. Rulings on Proposed Findings of fact submitted by the Respondent (None submitted).
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint, as amended?
Findings Of Fact Since March 8, 1985, DPR has licensed respondent Emmett Rex Alaniz, Jr., as a roofing contractor, with registration No. RC 0048059. Petitioner's Exhibit No. 1. At no time has DPR licensed the respondent to do business as A Aaron Roofing Co. Petitioner's Exhibit No. 2. In February of 1987, doing business as A Aaron Roofing Co., respondent Alaniz signed a written proposal to repair the roof of the house and garage at 140 Eighth Street in Atlantic Beach, Florida, which belong to George Pettway. Mr. Pettway agreed to pay the $1,450 Mr. Alaniz asked and accepted the proposal by signing it. Petitioner's Exhibit No. 3. Work began a day or two after Mr. Pettway and Mr. Alaniz executed the agreement, received in evidence as an attachment to petitioner's Exhibit No. 3. For the most part, Mr. Alaniz turned the job over to laborers whom he supervised briefly mornings. In keeping with the contract, they placed shingles over the existing roof, but the half inch nails they used were not long enough to penetrate the sheathing beneath the existing shingles. The pitch of the house roof was "approximately 2 in 12." Petitioner's Exhibit No. 4, p. 8. Respondent or his crew used "three tab" or "strip" shingles, despite advice on the packaging in which the shingles arrived that the warranty was void, if the shingles were used on a roof that rose less than three inches for every foot it approached the peak horizontally. Use of the shingles respondent employed on Mr. Pettway's roof also violated code. Petitioner's Exhibits Nos. 6 and 7. If solid shingles, the "right" shingles for a roof with as "shallow" a pitch as Mr. Pettway's, had been employed, a "nail over" would still have been doomed to buckle and fail. Even though the roof was watertight before Mr. Alaniz began, it would have been necessary, in order to do the job properly, to remove the old shingles before putting new shingles down. To fasten the bottom row of shingles securely, in the same manner as rows above it, competent roofers applying shingles like those used on Mr. Pettway's house cut off the 5-inch tabs and nail what is left along the eaves, before nailing the first regular row of whole shingles. This makes the thickness of the roof uniform, even along its lower perimeter, and permits sealing the bottom-most shingle edges against the "tar strip" formed by adhesive on the truncated shingles underneath. Instead of cutting off the tabs of the first shingles laid, respondent or his crew simply turned them upside down, laying them with tabs pointed toward the peak. This had two unfortunate consequences: The "tar strip," formed by an inch-wide band running the length of each shingle just above the notches separating the tabs, was some six inches from the edge of the roof, making the perimeter shingles vulnerable to breakage and loss from wind, which could lift the unsealed tabs. In addition, the roof flared near the edge because of a six- inch-wide "shingle berm" in which three thicknesses of shingles, not the two laid elsewhere on the roof, impeded water flowing down the roof. Although they first installed "gravel stop" instead of eaves drip flashing, respondent and his crew eventually used standard metal strips. But they overlapped the flashing in the wrong direction, against the flow of water, failed to crimp the seams, failed to join strips properly at corners, so that it pulled away from the fasciae, and nailed only every two or three feet instead of every twelve inches, as good practice dictates. Flashing was overlooked around a skylight. Only "cold tar" was applied. Respondent Alaniz and the crew working for him left flashing in place that should have been removed and reinstalled once the new shingles had been laid. Pipe flashing was not tucked properly nor was boot flashing done properly. In general, the flashing had the effect, not of waterproofing, but of creating water traps. Laying shingles in a straight line has more than aesthetics to recommend it. The seams between shingles must be tight if the roof is to function as it should. But the rows Mr. Alaniz and his crew laid snaked across the roof willy nilly. Instead of a uniform five inch width, the width of each row varied between three and seven inches. Gaps between adjacent shingles an inch or a half inch wide were common. Only two or three nails penetrated some shingles, each of which should have been fastened with four (longer) nails. In many instances, Mr. Alaniz or his crew misplaced such nails as were driven. In places, shingle fragments were pieced together. Cutting shingles with hawkbill knives, Mr. Alaniz and his crew, no doubt inadvertently, slashed some of the newly laid shingles. The roof had to be redone entirely, in any event. Mr. Alaniz contributed nothing to defray the expense of reroofing, or in any way correct the problems with the roof he and his men put on. Taken as a whole, the work they did was "worse than poor." On a scale of one to ten, it deserved a rating of one half. In every detail the work was done incompetently and irresponsibly. Perhaps that is why respondent never called for a final inspection by the city building inspector, even though the code in force in Atlantic Beach required that he do so.
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland 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 August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
