The Issue Whether Respondent, a registered general contractor, (1) unlawfully and willfully committed fraud and theft, violated the Fictitious Name Statute, and violated Municipal and County Contractor Licensing Ordinances, and (2) violated other provisions of the Construction Industry Licensing Law relating to the name under which a qualifying agent may engage in business.
Findings Of Fact At all times material hereto, Respondent was the holder of Registered General Contractors License No. RG0013533 issued by the Board to Respondent, d/b/a Deltec Construction Co. (Stipulation of counsel). Respondent is a fifty-five year old general contractor who has worked in construction for thirty-seven years, and has never been disciplined for misconduct associated with construction activities. (Testimony of Respondent) Respondent, at all times material hereto, did not qualify or license with the Board Trendway Construction Co., Trendway Construction Inc., or Trend- Tech Construction Co. (Testimony of Respondent, P.E. 1, 2, 3) Respondent's Business Activities in Daytona Beach, Florida On May 24, 1978, Respondent, d/b/a Deltec Construction Co., contracted with Darcy A. Vernier to assist him in the formation and operation of a corporation to be known as Trendway Construction Inc. In exchange for $8,500.00, Respondent agreed to provide a broad range of business assistance, expertise, training, and equipment to Trendway Construction, Inc. Vernier was designated General Manager and President of the new Company, and agreed to be individually responsible for its overall management. Although the long-term goal of the new Company was to perform general contracting, Vernier and Respondent envisioned that the Company would first gain necessary knowledge and experience by limiting its construction work to masonry and flat concrete construction projects. Profits were to be equally divided between Respondent (Deltec) and Vernier (Trendway), and, as subsequently amended, the Corporation was to be wholly owned by Vernier. (Testimony of Vernier, Respondent, P.E. 4) Prior to executing the contract, Vernier met with Respondent and discussed their proposed business venture on three separate occasions during a ten-day period. Vernier had his attorney review the contract prior to his signing, and fully understood its provisions. The proposed contract was modified, at Vernier's request, to ensure that Vernier would be the sole owner of the Corporation. (Testimony of Vernier) Prior to executing the contract, Respondent took Vernier to observe a masonry or flat concrete construction job in Ormond Beach, which he had recently completed d/b/a Deltec Construction Co. (Testimony of Vernier, Respondent) On July 6, 1978, pursuant to his contractual obligation, Respondent paid $250.00 for and obtained a Masonry Sub-Contractor's License, in Vernier's name, from the Building Department of the City of Daytona Beach. (Testimony of Respondent, Holmes, Vernier) Conflicting evidence was presented on whether, in order to do sub- contracting, masonry and flat concrete work within the City of Daytona Beach, a sub-contractor must also secure a certificate of competency or license from Volusia County under Ordinance 69-3. By stipulation, the testimony of Fred Holmes, Building Official with the City of Daytona Beach, was subsequently taken by deposition and submitted to determine this question. However, the testimony of Holmes is inconclusive, conflicting and unclear. (Testimony of Respondent, Vernier, Holmes, P.E. 7) Respondent did not represent to Vernier that Deltec Construction Co.'s licenses could be used by Vernier d/b/a Trendway Construction, Inc., and that no further licenses would be necessary. Vernier testified that Respondent made such representation, and Respondent denied it. Vernier's testimony is inconsistent with the express contractual provision which required Respondent to affirmatively secure "initial licensing" for Trendway Construction, Inc. Furthermore, Vernier's demeanor as a witness reflected a level of bitterness and hostility toward Respondent which may have influenced his recollection. (Since his construction company failed, Vernier had demanded Respondent return his money and filed a civil suit for such purpose.) In contrast, Respondent's unequivocal testimony on this question is buttressed by his consistent actions in securing an additional license for the Company from the City of Daytona Beach), and his subsequent action in attempting to secure a local license for another company under a contract markedly similar to the one between Vernier and Respondent, post. (Testimony of Respondent, Vernier, Garr, Fortner) Respondent was aware, however, that the Company would eventually have to acquire a license from Volusia County; he concluded, though, that his contractual obligations to secure "initial licensing" encompassed only the license required by the City of Daytona Beach. (Testimony of Respondent) Trendway Construction, Inc., was never organized as a corporation as envisioned by the contract between Respondent and Vernier. Soon after the contract was signed, serious business disagreements arose between Respondent and Vernier. Vernier, then, unilaterally moved the business, including its equipment, furnishings, office forms, and principal employee from Daytona Beach and relocated in another community. From the execution of the contract to Vernier's ultimate closing of the business, Respondent never received any profits from its operation, and his non-participation in the business operations was acknowledged by Vernier. During September or October, 1978, Vernier changed the name of the Company to Pelican Construction Co. During its existence, Trendway Construction was not registered as a fictitious name with the Clerk of the Circuit Court of Volusia County. (Testimony of Respondent, Vernier) Respondent's Business Activities in Ocala, Florida During September and October, 1978), Respondent operated a duly licensed masonry and flat concrete construction business known as Deltec Construction Co., in Ocala, Florida. (Testimony of Garr, Fortner, Respondent) On October 5, 1978, Respondent d/b/a Deltec Construction Co. contracted with Albert W. Latham to assist in the formation and operation of a corporation to be known as Trendway Construction, Inc. (In the Daytona Beach transaction, Trendway Construction Co. had never been incorporated by Vernier, and he had subsequently changed the Company's name, infra.) In exchange for $8,500.00, Respondent agreed to provide business assistance, expertise, training and equipment to Trendway Construction, Inc. Albert Latham was designated as General Manager and President of the newly formed Company, and agreed to be individually responsible for its general overall management. Although general construction was the Company's long-term objective, the parties invisioned that necessary knowledge and experience would be acquired by limiting their initial work to sub-contracting masonry and flat concrete construction projects. Profits were to be equally divided between Respondent and Latham, and 60 percent of the capital stock of the corporation was to be owned by Latham--the remaining 40 percent, by Respondent. (Testimony of Respondent, P.E. 13) On October 23, 1978, Trendway Construction, Inc., was officially organized and formed pursuant to the contract between Respondent and Latham. (P.E. 9) Under the contract between Respondent and Latham, Respondent was obligated to secure initial licensing for the new Company, Trendway Construction, Inc. Because Trendway Construction, Inc., was going to initially engage only in masonry and flat concrete sub-contracting work, the only license required was a certification of competency from the City of Ocala. Respondent made reasonable, diligent and earnest efforts to obtain the required certification from the City. First, he tried to apply for the license on behalf of Trendway Construction, Inc. But, since Latham owned a controlling interest in the Company, and was apparently considered its owner, City Building Department officials insisted that Latham must apply for the license on behalf of the Company. Respondent then obtained and delivered to Latham the necessary application forms and character reference letters, set up appointments for Latham at the Building Department, and repeatedly reminded him of the need to secure the local certification. Despite Respondent's efforts, Latham procrastinated, and failed to obtain from the City of Ocala the required license for Trendway Construction, Inc. It is probable that if proper application had been made for the license, it would have been issued to Latham d/b/a Trendway Construction, Inc., upon payment of the application fee and proof of insurance. (Testimony of Respondent, Garr, Fortner, P.E. 13) After formation of the Corporation, Respondent continued to provide assistance to Latham and Trendway Construction, Inc., but he did not dictate what construction work would be done or whore it would be undertaken. Latham directed two construction work crews and made those decisions. Nevertheless, Respondent warned Latham that no construction work should be undertaken within Ocala until the necessary City certification was obtained. (Testimony of Respondent) On October 24, 1978, Trendway Construction, Inc., poured a driveway slab for Herbert Adams at 2332 East Silver Spring Boulevard, Ocala, Florida, for $668.72. Adams dealt only with Jack Cook, an employee of Trendway, and neither knew nor had any dealings with Respondent. (Testimony of Adams, Garr) The name of "Trendway Construction, Inc.," has not been registered with the Clerk of the Circuit Court of Marion County, Florida. (Testimony of Respondent) Respondent did not attempt to mislead Latham by representing that Trendway Construction, Inc., could operate under Deltec's local or state licenses. (Testimony of Respondent) There was no evidence that Respondent mislead or misrepresented any material fact to Latham or failed to diligently carry out his obligations under their contract; neither was any evidence presented to show Latham was dissatisfied, in any manner, with Respondent's contractual performance. Respondent's Business Activities in Gainesville, Florida Respondent sold a construction business to Valentine Webber of Gainesville, Florida, for $8,500.00. (Testimony of Respondent)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board find Respondent Not Guilty of the charges contained in its Administrative Complaint, and that the Complaint be DISMISSED. DONE and ENTERED this 11th day of June, 1980, in Tallahassee, Florida. R. L. CALEEN JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675
Findings Of Fact Petitioner Cobo Company, Inc., is a mechanical contractor located in Miami, Florida, whose qualifying agent, Jose Cobo, is certified in that capacity pursuant to Chapter 489, Florida Statutes. By letter of August 18, 1980, Respondent Department of General Services confirmed Petitioner's annual prequalification as a potential bidder for building construction contracts pursuant to Section 255.29, Florida Statutes, for the "type or class as defined in your license." (Testimony of Cobo, Exhibit 1) At an undisclosed date, Respondent published an advertisement for bids for Project No. DGS-7969-C, "Major Repairs-Chiller Replacement, Graham Building, Miami, Florida." The advertisement required all bidders to submit prequalification data of their eligibility to submit proposals if not previously qualified for the current fiscal year. The advertisement an invitation for bids stated that bids must be submitted in full in accordance with the requirements of the drawings, specifications, bidding conditions, contractual conditions, and that sealed bids would be opened on September 30, 1980. Section B-2 of the specifications required that the bidder present evidence that he was "authorized to perform the work required on these documents in accordance with the applicable provisions of Florida Statutes governing contractors." (Exhibit 4) Respondent's Instructions to Bidders further required that bidders submit evidence of ability to provide necessary performance and labor and material payment bonds, and that bids would be accompanied by a bid guarantee of not less than 5 percent of the amount of the bid. The instructions required bidders to submit a list of previous contracts involving similar work which had been satisfactorily completed, and to list those qualified subcontractors which the bidder intended to be employed on the contract. They further required a bidder to indicate bid prices on the proposal form for the entire work and for any alternates on which he bids. The instructions stated that if the base bid was within the amount of funds available to finance the contract and the owner (Respondent) wished to accept alternate additive bids, contract award would be made to that responsible bidder submitting the low combined bid, consisting of the base bid plus alternate additive bids. Section B-24 of the contract document reads in part as follows: B-24 CONTRACT AWARD The Contract will be awarded by the Executive Director, Department of General Services, as soon as possible, to the lowest qualified bidder provided in his bid is reasonable and it is in the best interest of the owner to accept it. The Owner reserves the right to waive any informality on bids received when such waiver is in the interest of the Owner. The Agreement will only be entered into with reasonable contractors, found to be satisfactory by the Owner, qualified by experience and in a financial position to do the work specified. Section 01010 of the specifications provides in part as follows: SECTION 01010 - SUMMARY OF WORK 1. GENERAL DESCRIPTION The project in general consists of construction of the contract entitled Major Repairs-Chiller Replacement, Graham Building, Miami, Florida, State Project No. DGS-7969-C. A general Description of the project and its scope includes the following: Replacement of chiller for central air conditioning system. Install new cooling towers and pump. The contract drawings and specifications provided for the removal of a portion of an interior wall, and removal of an exterior wall window and masonry work below the window to provide access for removal of the existing chiller and its replacement with new equipment. In addition, the contract included electrical work incident to the installation of the chiller, removal of an existing hand rail for clear access to the equipment and later replacement, installation of pitch pans for pipes and other openings on the roof, and the erection and installation of structural steel cooling towers. The specifications call for painting, plaster work, replacement of flooring and ceiling, and installation of a window wall panel, as required in restoring the demolished area. They further called for a replacement demountable interior wall partition to provide future access to the air conditioning equipment, as an alternate portion of the project. Section 01021 of the specifications described the bid items as a Base bid, Additive Alternate No. 1 for using a higher efficiency chiller, and Additive Alternate No. 2 for installation of the demountable partition. However, the specifications had been altered prior to the issuance of the bid invitation to provide for the higher efficiency chiller as part of the Base bid, but Section 01021 had not been changed accordingly. Respondent's proposal form for use by bidders, however, had provisions for entry of only a Base bid and Alternate No. 1 for the installation of the demountable partition. (Testimony of Karagianis, Exhibits 4-6) Petitioner submitted its bid for the project on September 30, 1980. Its base bid was $225,440. It also bid on the alternate for installation of demountable partitions in the sum of $1,170, and added to the bid form an alternate for the use of a higher efficiency chiller in the amount of $1,150. Seven other bids were submitted on the proposal ranging from $239,300 by Sam L. Hamilton, Inc. to a high bid of $403,624. Hamilton's additive bid for the alternate partitions was in the amount of $1,950. Petitioner enclosed with its proposal the required contractor's qualification statement showing previous experience as a mechanical contractor, bid bond, and other required information. It listed L. Milton Construction, Inc. as a general construction subcontractor and Sparta Insulation as an insulation contractor. Although Petitioner intended that Lloyd N. Jones perform the electrical work on the project, he was not listed as a subcontractor because Petitioner did not know at that time whether he would be a subcontractor of Milton or of his own firm. Petitioner included the alternate bid for the higher efficiency chiller because it was required under Section 01021 of the specifications. Milton's bid to Petitioner for the construction work on the contract was in the sum of $7,000. (Testimony of Cobo, Exhibits 2-3) By letter of October 7, 1980, Respondent informed Petitioner that it intended to contract with Sam L. Hamilton, Inc. which had been determined the qualified low bidder meeting the requirements of the specifications. The letter advised the Petitioner that its bid was rejected because it was not a certified or registered general or building contractor as required by Section 489.105, Florida Statutes. Attached to the letter was a copy of a letter of William J. Roberts, attorney for the Florida Construction Industry Licensing board to Respondent, dated October 18, 1977, setting forth a legal opinion that a mechanical contractor could not be the prime contractor on a state contract in which the bulk of the work is mechanical in nature, but the remaining portion is to be subcontracted to a general contractor. Roberts testified at the hearing that he had drafted legislation which changed the definition of "contractor" previously found in subsection 478.102(1), and in his view, under such definition, a mechanical contractor would not be authorized to become a prime contractor if it were necessary for him to subcontract any non-mechanical work called for under the contract provisions which he was not qualified to perform. (Testimony of Roberts, Exhibit 7) Respondent's project director estimates that the chiller replacement project was approximately 90 to 93 percent mechanical in nature, and 7 to 10 percent requiring general construction and electrical work. It was his understanding of departmental policy that if any portion of a contract involved general construction work, only a general contractor would be eligible to receive the award and that, in this case, Petitioner could not therefore be accepted as a prime contractor. Respondent's chief of the Bureau of Construction has instructed Bureau personnel not to award contracts to mechanical contractors which involve non-mechanical work unless the contractor is certified in the non-mechanical area for which the work is required. Two contracts awarded by Respondent to mechanical contractors in 1980 which involved non-mechanical work were "incorrect" awards, in the view of the Chief of the Bureau of Construction. (Testimony of Karagianis, Scaringe, Composite Exhibit 8) General contractors and mechanical contractors are required to be licensed under Chapter 489, Florida Statutes. Any person who desires to be certified statewide in a particular contracting area must establish his competency and qualifications by a combination of education and experience, plus the successful completion of an appropriate examination. The general contractor's examination and mechanical contractor's examination have similar portions relating to applicable federal state laws and regulations in the contracting field. The remaining and major portion of the mechanical contractor's examination deals with subjects of that specialty such as air conditioning, refrigeration, heating, and the like. The general contractor's examination primarily covers matters relative to construction, such as site work, excavation, structural shell, masonry walls, piles, columns, and form work. (Testimony of Allen, Composite Exhibits 9-10) In the opinion of an expert in the field of architecture, there are no parts of the chiller replacement project which require the services of a general contractor. The demolition of the interior partition and the window wall properly may be accomplished by a mechanical contractor and installation of demountable partitions in lieu thereof can be obtained from specialty suppliers. Other aspects of the project, such as concrete pads, installation of cooling tower, pitch pans, and painting similarly are all considered to be incidental work to a project that is basically mechanical in nature. Certain large mechanical contractors customarily employ qualified individuals to perform specialty tasks such as painting and demolition work, but smaller contractors accomplish such portions of a job by subcontract. (Testimony of Coxen) A recent contract award was made by Dade County to a mechanical contractor for a project similar to the one here in controversy. In that case, the mechanical contractor had listed a general contractor as a subcontractor for the project. (Exhibit 11)
Recommendation That Petitioner Cobo Company, Inc. be awarded contract for Project No. DGS- 7969-C, as the qualified low bidder meeting the requirements of the specifications. DONE and ORDERED this 30th day of January, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1981. COPIES FURNISHED: Ronald C. Laface, Esquire Roberts, Miller, Baggett, LaFace and Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Sprio Kypreos, Esquire Department of General Services Room 457 Larson Building Tallahassee, Florida 32301 Lewis M. Kanner, Esquire Williams, Salomon, Kanner, Damian, Weissler and Brooks 1000 DuPont Building Miami, Florida 33131 Henry P. Trawick, Jr., Esquire Trawick and Griffis, P.S. 2051 Main Street Post Office Box 4019 Sarasota, Florida 33578 Thomas R. Brown Executive Director Department of General Services 115 Larson Building Tallahassee, Florida 32301
The Issue Whether a permit should be issued to N. B. Willoughby Company to construct a 150 tons per hour asphalt plant.
Findings Of Fact N. B. Willoughby Company filed a construction permit application to construct a 150 tons per hour asphalt batch plant located three-fourths mile west of U.S. Highway 27, 800 feet south of Highway 544, and 700 feet east of Lake Hamilton Drive, in Winter Haven, Polk County, Florida. Mr. Jack Fross of Environmental Engineering Consultants, Inc. prepared the original application for submission to DER. Robert E. Wallace, a professional engineer registered in Florida who works for Environmental Engineering Consultants, certified that the engineering features of the project were in conformity with modern engineering principles applicable to the treatment and disposal of pollutants and that there was reasonable assurance that the pollution control facilities, when properly maintained and operated, would discharge an effluent that complied with all applicable statutes and rules and regulations of DER. Willoughby's application was reviewed by DER to ensure that all information required by law had been submitted and to determine whether Willoughby had provided reasonable assurance that the plant would meet the federal New Source Performance Standards. As a result of the review, DER determined that Willoughby had provided reasonable assurance and gave notice of its intent to issue a permit to the N. B. Willoughby Company to construct the asphalt batch plant in Winter Haven, Florida. The permit proposed to be issued to Willoughby is a construction permit which contains several specific conditions. The permit would allow Willoughby to construct the facility and would permit an initial period of operation for appropriate testing to determine compliance with DER rules. Thereafter, Willoughby would be required to apply for an operating permit. Other specific conditions imposed by the proposed permit include that the hours of operation of the plant shall not exceed 10 hours a day, 5 days a week; that the fuel used be number two fuel oil, with a maximum sulfur content of .3 percent, and that recycled asphalt shall not be used at the facility. Applications for permits must provide reasonable assurances that the installation will not cause pollution in contravention of DER rules. By rule, the Department of Environmental Regulation has adopted by reference the New Source Performance Standards contained in the federal regulations promulgated by the Environmental Protection Agency. There are two requirements that must be met by an asphalt plant. The plant must meet a emissions standard of no more than .04 grains per dry standard cubic foot, and the plant must meet a 20 percent opacity emission limitation. The .04 grains per dry standard cubic foot regulates the amount of particulate matter which can be emitted from the plant; the 20 percent opacity requirement limits the density of the smoke that emanates from the plant's stack. A construction permit application must provide reasonable assurance that the proposed facility will not discharge particulate matter in excess of .04 grains per dry cubic foot or discharge gases exhibiting 20 percent opacity, or greater. Reasonable assurance may be provided to DER by an applicant in three ways: the applicant may submit a written guarantee from the manufacturer that the facility will meet the prescribed standards; the applicant may provide test data from an identical facility; or the applicant may provide a professional engineer's certification that the source and its control equipment would meet the agency's requirements. In this case, Willoughby provided an engineer's certification and the manufacturer's guarantee. Test data from a similar plant was submitted, but DER could not substantiate the test data because the differences in the plants could not be determined from the information submitted. Therefore, DER required a manufacturer's guarantee. Although DER relied primarily on the manufacturer's guarantee as providing reasonable assurance that the plant would comply with the emission limitations, DER officials considered the entire application package in reaching their decision. The Willoughby application was routine and presented no unusual or novel difficulties. The asphalt batch plant proposed to be constructed by Willoughby is manufactured by Asphalt Drum Mixers, Inc. (ADM). ADM has been manufacturing asphalt drum mix plants since 1974 and has completed approximately 140 plants during that time. All of the plants manufactured by ADM have a similar design, but the model numbers vary based on differences in capacity and features. The model number for the Willoughby plant would be S7234-S. The first S indicates that a scrubber is on the frame; the 72 designates a drum diameter of 72 inches; the 34 reflects a drum length of 34 feet; and the last S shows that the plant is a stationary plant. The difference between a model number S7228-S and model number S7234-S would be six feet in drum length. A longer drum length provides a longer drying time and is used when there is a higher moisture content. No evidence was presented which would suggest that the length of the drum has any effect on the efficiency of the pollution control devices. The plant is equipped with a wet wash or scrubber which controls particulate emissions from the plant. The scrubber draws the hot gases from the drum. The gas travels at a high velocity through a venture, or throat, where it is sprayed with water. It is then spun in a separator. The water droplets, which have covered the particulate in the gas, go to the outside walls and are ultimately discharged into a settling pond. The rest of the gas goes into a center tube and through a- dewatering stack where more of the droplets are collected. The gas, cleaned of particulate, is then discharged into the atmosphere. The scrubber designed for the Willoughby plant is a sophisticated scrubbing operation, a state-of-the-art scrubber design. The scrubber will remove 99.95 percent of the particulate matter. The plant designed for Willoughby is rated at 150 tons per hour at 5 percent moisture and 280 degree product temperature. The capacity of an asphalt plant is determined largely by the moisture content. With a one or two percent moisture content the plant could produce a higher tonnage. However, a low moisture content is rare for Florida, and therefore the plant would normally be running at a lower capacity. At 150 tons per hour the particulate removed from the scrubber would be about 250-300 pounds per hour, or approximately three cubic feet. The pollution controls in the plant are designed to meet the .04 grains per dry standard cubic foot requirement, and ADM guarantees that the plant will perform at or below that level. In recent tests performed on four ADM plants similar to the proposed plant, emissions were under half the allowable level. An ADM portable plant located in Florida and manufactured in 1980 or 1981 meets state permitting requirements, yet it does not have the improved pollution controls incorporated into the Willoughby design. Although not required, a PTPLU computer modeling was conducted to measure the ambient air quality impact of the proposed plant. It revealed that the plant would have an insignificant impact on the ambient air quality. The test data provided to Willoughby from ADM and included in the application were from tests performed on a portable model 57228. The difference in the S7228-P and the proposed plant is that the Willoughby plant would have a drum six feet longer and would be stationary. A stationary plant is also equipped with a dewatering stack, and thus has better pollution control than a portable plant. The testing on the S7228-P showed an average emission of .0353 grains per dry standard cubic foot. The Willoughby application identified the specific emission point source as a "drum mix asphalt plant with venturi scrubber." However, in Section II, the project was described as construction of an "ADM Model S7232-P Drum Mix Asphalt Plant equipped with venturi scrubber." Obviously, the application gave the wrong model number based on ADM's method of assigning model numbers. Willoughby's plant will have a drum 34 feet long and will be stationary; therefore the model should have been designated 57234-5. However, the model number assigned is irrelevant in determining whether the plant will meet state pollution requirements. The permit application designates the project as an asphalt batch plant and designates the air pollution control device as a venturi scrubber. The manufacturer guarantees that the plant to be built for Willoughby will comply with the .04 particulate matter and opacity standards. The written guarantee does not mention any model number. The manufacturer's guarantee, as well as the test results on similar plants, provides reasonable assurance that the Willoughby plant will not discharge particulate matter in excess of .04 grains per dry standard cubic foot or discharge gases exhibiting 20 percent or greater opacity. The petitioners presented no evidence which would indicate that the proposed plant will not meet state air pollution requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order granting Willoughby's application for the construction of the asphalt plant, and issue the permit in question subject to the same conditions specified in the Notice of Intent to Issue. DONE and ORDERED this 29th day of April, 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 29th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1032 Petitioners' Proposed Findings of Fact: Accepted as stated in paragraph 6. Accepted as stated in paragraph 13. 3 - 6. Rejected in that these paragraphs do not state factual findings but merely recite testimony given; however, paragraphs 6, 7, 12, and 13, address the substance of the paragraphs. 7 - 9. Rejected for reasons stated in paragraphs 12 and 13. Respondent Willoughby's Proposed Findings of Fact: Accepted in paragraph 1. Accepted in paragraph 2. Accepted in paragraph 3. Rejected as not finding of fact but recitation of testimony; however, substance accepted generally in paragraphs 2, 4, and 14. Accepted in paragraph 5. Accepted generally in paragraph 6. Accepted, to the degree not a recitation of testimony in paragraph 13. Accepted in paragraph 14. Respondent DER's Proposed Findings of Fact: 1. Accepted in paragraphs 1 and 2. 2. Accepted in paragraph 3. 3. Accepted in paragraph 5. 4. Accepted in paragraph 6. 5. Rejected as unnecessary and irrelevant, although would be accepted if deemed relevant. 6 - 9. Rejected, not factual findings but recitation of testimony; however, paragraphs 6, 8, 11, 7, 12, and 9 address substance. 10. Accepted in paragraph 9. 11. Rejected as irrelevant. DER did not indicate in the prehearing stipulation that standing was an issue. Therefore, petitioners were unaware that each of the 2,781 petitioners would have to testify to establish standing, and thus only a representative group of petitioners testified. COPIES FURNISHED: Thomas L. Boll, Esquire Murphy & Clark, P.A. Post Office Box 5955 Lakeland, Florida 33807-5955 Andrew R. Reilly, Esquire Reilly & Lasseigne Post Office Box 2039 Haines City, Florida 33844 Douglas M. Wycoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent, the Department of Environmental Protection (DEP), should grant Petitioners’ application for a coastal construction control line (CCCL) permit to armor the beach seaward of the CCCL at their properties on Alligator Point in Franklin County (permit number FR-740).
Findings Of Fact Petitioners own property fronting the Gulf of Mexico on Alligator Point in Franklin County. Finley and Jean McMillan own Lot 7, and Angelo Petrandis owns Lot 8, in Block V of Peninsula Point, Unit 6, a subdivision platted and recorded in Plat Book 2, page 2, of the Public Records of Franklin County. Petitioners complain that they applied to armor the beach at their properties, using rock rip-rap seaward of the CCCL, in the early 1990’s, but the Department of Environmental Regulation (the regulatory agency that preceded DEP) indicated its intent to deny the application and required Petitioners to build a wooden seawall that would be expendable in a major storm. Storms destroyed the wooden seawall and the Petrandis home on Lot 7. In 1995, Hurricane Opal severely damaged the McMillans’ home, which was later condemned and demolished. These homes have not been rebuilt. Since Opal, DEP permitted the construction of rip-rap revetments seaward of the CCCL to armor the beach and protect the homes of Petitioners’ neighbors to the west (Lot 6) and east (Lot 9)(an after-the-fact permit issued in September 2003). In October 2003, Petitioners applied for a CCCL permit to armor the beach seaward of the CCCL at their properties on Alligator Point (permit number FR-740). They proposed a rock rip-rap revetment to be constructed seaward of the approximate mean high water line, between 285 and 295 feet seaward of the CCCL, to tie into and “close the gap” between the rock rip-rap revetments of their neighbors to the east and west. DEP requested additional information, including documentation of ownership or control of the project area, all of which appeared to be seaward of the mean high water line, and requested payment of the application fee. The information and fee were provided, and DEP declared the application to be complete in August 2005. In September 2005, Petitioners’ engineering consultant filed, on their behalf, a waiver of the statutory 90-day limit DEP had to either grant or deny the application. See § 120.60(1), Fla. Stat. In May 2007, DEP gave notice of inactive 90-day clock waiver, meaning that there had been no activity on the application, which would be deemed withdrawn unless Petitioners notified DEP to the contrary. In June 2007, Petitioners’ engineering consultant responded with a request for “an additional 90-day extension to the . . . project” for Petitioners to revise the application to propose a tie-in to the rock revetment of the neighbor to the west but a 90 degree turn at the property boundary to the east to form an “L” there. However, no actual revision to the application was made. In May 2008, DEP gave a second notice of inactive 90-day clock waiver. There was no evidence of any response. In July 2009, DEP gave notice of its intent to deny the application. DEP’s notice of intent was issued because: there are no structures on Petitioners’ properties to be protected by the proposed armoring seaward of the CCCL; Petitioners’ proposed armoring project would not “close a gap” of 250 feet or less in a continuous and uniform armoring structure construction line; and Petitioners’ proposed armoring project would have a significant adverse impact on marine turtles. There are no structures on Petitioners’ properties. While the rock revetment on the property of the neighbor to the west is stable and would prevent upland erosion from a 15-year return interval storm, there is no such structure for well over 250 feet to the east of Petitioners’ properties. The dwelling on the property to the east has suffered severe storm damage and has been abandoned. The armoring structure permitted and built on that property is in disrepair, dilapidated, disorganized, and made of rocks that are too light in weight to be stable or capable of preventing upland erosion from a 15-year return interval storm; from the evidence, including the damage from storms since 2003, it is not clear whether the structure ever was capable of preventing upland erosion from a 15-year return interval storm. Female marine turtles instinctively return to lay eggs on the beach where they were born. Threatened and endangered marine turtles use the sandy beaches of Alligator Point for nesting. One successfully used Petitioners' beach for nesting in June 2005. If rigid coastal armoring prevents a turtle from nesting, the turtle will seek a nearby alternative. If a good alternative is not found easily enough, the turtle may abandon nesting and release her eggs in the water, where they will perish. This makes a dry sandy beach between stretches of armored beach (a so-called “pocket” beach) valuable for turtle nesting. For these reasons, Petitioners’ beach is valuable for turtle nesting, and it is expected that turtles will again use it for nesting (although no nest has been documented on Petitioners’ beach since 2005.) Petitioners’ proposed armoring structure would prevent nesting marine turtles from coming ashore at their beach. Petitioners did not prove that their proposed beach armoring structure would not significantly impair breeding by marine turtles, or that the resulting “take” of marine turtles has been authorized. Petitioners complain that they should have been allowed to build a rock rip-rap revetment in the early 1990’s, instead of being denied and required to build the wooden seawall that was destroyed by storms. However, it was not proven that their earlier application should have been granted, or that it was error to approve the wooden seawall application. Petitioners complain that DEP should be responsible for the delay in processing their application, which they now claim would have been granted if acted on promptly. Clearly, events that occurred during the delay, including the major storms that struck in 2004 and 2005, complicated Petitioners’ application and gave rise to grounds to deny it. However, Petitioners did not prove that that the rock revetment of the neighbor to the east ever was suitable for “closing the gap.” Even if the rock revetment to the east was suitable for “closing the gap” in 2003, the evidence did not prove that DEP was responsible for any delays in the permitting process either before or after the storms of 2004 and 2005. Since Petitioners’ application was not complete until August 2005, it cannot be said that their application would have been granted if acted upon before then. The next month, Petitioners’ consultant relieved DEP from responsibility for further delay by waiving the “90-day clock.” It appeared from Petitioners’ testimony at the final hearing that they misunderstood the meaning of the “90-day clock waiver.” They thought it imposed a duty on DEP to act on their application within the following 90 days. Actually, it was a blanket waiver. Similarly, they seemed to think the notice of inactive 90-day clock waiver deactivated the waiver and restarted the 90-day clock. Actually, it notified Petitioners that there had been no activity since the waiver and that DEP would deem their application to be withdrawn unless Petitioners told DEP otherwise. The consultant’s response to the second notice of inactive 90-day clock waiver was couched as a request for a 90-day extension, which Petitioners interpreted as reactivation of the 90-day clock. Actually, it was a request that DEP not consider the application withdrawn for 90 days, during which Petitioners would be revising their application. No revision was filed, and DEP did not deem the application withdrawn after 90 days. Instead, DEP proceeded with its review of the pending application and denied it approximately a year later. Even if DEP were responsible for this last delay of over a year, there was no evidence of anything occurring during that time that further complicated Petitioners' application or gave rise to any additional grounds for denial. Petitioners complain that DEP should not have approved the rock rip-rap revetments of their neighbors to the east and west. They contend that the revetment to the east should not have been permitted since it was destroyed by the storms of 2004 and 2005 and that both had marine turtle nesting habitat comparable to their property. The destruction caused by the storms of 2004 and 2005 did not prove that the revetment to the east should not have been approved. There was no evidence of actual turtle nesting on Lots 6 and 9 at the time of the approval of the rock revetments there. In addition, impacts on nesting marine turtles from the neighboring revetments would have been reduced by the existence of Petitioners’ unobstructed beach; conversely, the existence of the neighboring revetments increased the value of Petitioners’ property for marine turtle nesting, as possibly indicated by the successful nest in 2005. In addition, the evidence was that Petitioners possibly could get a permit to “take” marine turtle nesting habitat as a result of a beach armoring project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying Petitioners’ application for CCCL permit FR-740. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 22nd day of August, 2011. COPIES FURNISHED: Finley L. McMillan Jean B. McMillan Post Office Box 68 Panacea, Florida 32346-0068 Norman West Gregory, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Angelo Ernest Petrandis Post Office Box 189 Panacea, Florida 32346-0189 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent violated Pinellas Count Water and Navigation Control Authority Regulations (PCWNCAR) as more specifically alleged in the Administrative Complaint dated September 12, 1990.
Findings Of Fact John C. Lombardi, Respondent, is a certified marine specialty contractor and was so licensed at all times here relevant. He holds license C- 4097. Respondent at all times relevant hereto was the qualifying contractor for Myron Gibson Marine Construction Corporation. He also is the owner of Myron Gibson Marine Construction Corporation. Respondent entered into an oral contract with Larry Mickelson to install two tie poles off the dock at 809 Bay Point Drive and into a written contract with the property owner of this property to install two tie poles. Under the terms of the written contract, Respondent contracted to install these tie poles 25 feet off the dock with a minimum penetration of 10 feet. Due to an error on the part of the contractor, the initial tie poles were installed too close to the dock and had to be relocated. Respondent contracted with Mickelson to jet the poles to the required penetration. However, at the location 25 feet off the dock, the construction crew encountered a hard clay and shell mixture some four feet below the water bottom sand and silt and could get less than 8 feet penetration. When Mickelson attempted to tie up his boat to these tie poles, he noted they moved and called Gibbon Marine to correct the situation. In resetting the piles, Gibson Marine cut one of the piles in a point to facilitate driving the pile to a greater penetration. A drop hammer was used to drive the piles further into the clay and shell mixture. Respondent's crews made four visits to the site to correct the problem, and final payment was made on March 13, 1990 (Exhibit 8). Mickelson still was not satisfied, and Respondent advised him of the difficulty encountered in attempting to get 10 feet penetration and offered Mickelson three options, all at extra costs. These were (1) install sister piles, (2) relocate piles in hopes of finding less dense material in which to drive the piles, and (3) call in another contractor with equipment to drill the holes for the piles. Mickelson had another marine contractor come out to reset the piles to a greater depth, but this contractor was also unsuccessful. Mickelson then employed Ress Marine Construction who had drilling equipment with which to drill holes in which to set the tie poles. Ress Marine removed the piles installed by Respondent and drilled holes into which two tie poles were installed to a minimum depth of 10 feet. The removed piles which had been installed by Gibson Marine showed discoloration on the bottom three feet of these piles. One of Petitioner's witnesses (Ress) testified that he told Mickelson the piles appeared to have obtained only 3 to 3 1/2 feet penetration. Two of Respondent's witnesses who were on the scene doing the work when the piles were initially installed both testified the piles were driven to a penetration depth of not less than 7 to 8 feet. Respondent has owned Gibson Marine for the past 5 years, and this is the first customer complaint he had received, and these are the only charges ever filed against his certificate by Petitioner or any other regulatory authority.
The Issue The issue is whether Petitioner is liable for a penalty for failure to maintain workers’ compensation insurance in violation of relevant provisions in Chapter 440, Florida Statutes (2007).1
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107. Petitioner is a limited liability company domiciled in Florida and engaged in the sale of stone countertops. The disputed issues of fact arise from a single, integrated transaction involving “one and the same business” within the meaning of Subsection 440.10(1)(b). The “business” includes a contractor, a wholesaler, and two subcontractors, one of which is Petitioner. The integrated transaction is between the business and a homeowner. The contractor is identified in the record as Manasota Land Development (Manasota). The homeowner owns a residence on Agate Road in Port Charlotte, Florida (the homeowner). The contractor referred the homeowner to Petitioner for the purpose of selecting granite countertops. Petitioner’s representative visited the residence, took measurements, and received the order for granite from the homeowner. Petitioner placed the order with the wholesaler, the name of which is not material to this proceeding. The wholesaler delivered granite to a fabricator and installer designated by Petitioner and identified in the record as Granite Exclusive (the installer). The installer fabricated the countertops and installed them at the residence. Petitioner visited the residence to ensure customer satisfaction, and Petitioner paid the wholesaler and installer from funds provided by Manasota. Petitioner did not collect payment from the homeowner. Rather, Petitioner agreed with Manasota to a total price of $7,141.00. Petitioner billed Manasota for $3,570.00, an amount equal to approximately one-half of the total agreed price, on May 21, 2008, inferentially when the homeowner placed the order with Petitioner. Manasota paid Petitioner the 50 percent deposit. Petitioner billed Manasota for the balance due, in the amount of $3,571.00, on July 22, 2008, when the work was completed to the satisfaction of the homeowner, and Manasota paid the balance due. Petitioner was a sales agent, order processor, and a collection and payment processor for Manasota. Petitioner paid the wholesaler and installer from funds provided by Manasota. The fact-finder draws a reasonable inference from the evidence that Manasota collected a sum from the homeowner that was equal to or greater than the price Manasota paid to Petitioner. Petitioner and the installer are subcontractors of Manasota. Petitioner had no supervisory control over the installer. Respondent’s claim that a written or oral contract existed between Petitioner and the wholesaler and installer is not supported by clear and convincing evidence. It is undisputed that neither the installer nor Petitioner have workers’ compensation insurance, and the two subcontractors are, by operation of Subsection 440.10(1)(b), the employees of Manasota in “one and the same business.” Manasota is responsible for providing workers’ compensation coverage by operation of the statute. Petitioner mistakenly believed, in goof faith, that it was exempt from the requirements of Chapter 440. A company officer of Petitioner obtained an exemption certificate and, reasonably, concluded that the exemption was for Petitioner and both of Petitioner’s officers or employees. Such an exemption was the officer’s stated purpose when she entered the local state office responsible for issuing exemption certificates. The state employee represented that the exemption certificate actually issued achieved the officer’s stated purpose. The express terms of the exemption certificate provide that the exemption is for the person “and” company named in the certificate. However, Subsection 440.05 makes clear that an exemption covers only the company officer named in the certificate and that each of the two officers must be named in the certificate or that each officer must obtain a separate certificate. Petitioner did not engage in the business of fabricating or installing the stone countertop. Petitioner made a sale of the granite countertop and placed an order with a wholesaler. The wholesaler shipped the countertop to a the installer designated by Petitioner based on proximity to the project site. The fabricator installed the countertop. Petitioner did not supervise the fabrication or installation of the countertop. The fact-finder has considered and weighed conflicts in the evidence pertaining to the issue of whether Petitioner engaged in the business of fabricating and installing the stone countertop and has resolved any evidential conflicts in favor of Petitioner. The testimony of Petitioner’s witness, describing the nature and scope of Petitioner’s business, is consistent with Article 5 in Petitioner’s Articles of Incorporation which states: The general purpose for which the Company is organized is to engage in the business of natural stone countertop sales. . . . On June 3, 2008, Respondent’s investigator, conducted a compliance check at 8206 Agate, South Gulf Cove, Florida, to verify compliance with the workers’ compensation statutes. At the worksite, Respondent’s investigator observed three men installing a stone countertop for the installer. Installation of stone countertops is part of the construction industry and is assigned Class Code 5348 in the Scopes Manual, published by the National Council on Compensation Insurance and adopted in Florida Administrative Code Rule 69L-6.021. The investigator interviewed the three men and requested proof of compliance with the workers’ compensation law. One of the three men, neither furnished proof of an election to be exempt from workers’ compensation nor showed that he had secured workers’ compensation coverage. Utilizing the Department of Financial Services’ Coverage and Compliance Automated System (CCAS), the investigator was unable to determine that the employee of the installer was exempt from the requirements of the workers’ compensation law or that Petitioner had secured the payment of workers’ compensation. On June 4, 2008, the investigator issued a Stop-Work Order and Order of Penalty Assessment against Petitioner for failure to meet the requirements of Chapter 440. Respondent ordered Petitioner to cease all business operations and assessed a $1,000.00 penalty against Petitioner pursuant to Subsection 440.107(7)(d). On June 4, 2008, the investigator issued a Division of Workers’ Compensation Request for Production of Business Records for Penalty Assessment Calculation. Petitioner complied with the Request and provided the required records. Based on Petitioner’s business records, the investigator issued an Amended Order of Penalty Assessment on June 11, 2008, in the amount of $1,218.52. Mr. Thomas Harvey, a company officer of Petitioner, did not posses an election to be exempt from workers’ compensation. Ms. Leslie Lockett, the other company officer had applied for and obtained an exemption from workers’ compensation coverage. Ms. Lockett’s exemption from workers’ compensation lists the scope of business or trade as countertops, pursuant to instructions from the agency employee who issued the certificate. Ms. Lockett’s exemption from workers’ compensation is a construction industry exemption. Ms. Lockett applied for a Notice of Election to be Exempt as a member of a limited liability company in the construction industry pursuant to the instructions previously described. In the transaction at issue in this proceeding, Petitioner collected payment for materials and installation of a stone countertop from Manasota. Petitioner did not collect payment from the homeowner and had no control or authority over either the wholesaler or the installer.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order dismissing the Stop-Work Order and Amended Order of Penalty Assessment against Petitioner and Mr. Harvey. DONE AND ENTERED this 24th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 24th day of October, 2008.
