Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
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 Whether Respondent engaged in the unlicensed practice of contracting in violation of Section 489.127, Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. On June 7, 2005, Harry Lee Wilson signed a proposal on behalf of Wilson Construction and Roofing to perform repairs on a home owned by Tony Wright at 2126 Evergreen Avenue, Jacksonville, Florida. The proposal consisted of a two-page list of repairs to be performed, including installation of doors, plumbing, kitchen cabinets and sheetrock; repair of several holes, walls, windows and floors; painting and installation of a wall. The proposed cost for the job was $7,595.00, with $3,200.00 to be paid as a down payment, $2,200.00 to be paid halfway through, and the balance to be paid when the job was completed. Mr. Wilson represented to Mr. Wright that he was a licensed contractor and had been for 20 years. He had business cards and t-shirts that advertised "Wilson Construction and Roofing." His license, however, was an occupational license issued by the City of Jacksonville. At no time material to these proceedings was Mr. Wilson registered with or certified by the State of Florida. Likewise, Wilson Construction and Roofing did not possess a certificate of authority to practice as a contractor qualified business. No evidence was presented to establish that Mr. Wilson held any sort of competency license issued by the local jurisdiction. Mr. Wright accepted the proposal and, in all, paid $5,000.00 to Mr. Wilson for his services. On September 21, 2005, Mr. Wilson wrote to Mr. Wright representing that he had completed the "first proposal," i.e., the first page of the work under the contract. In his letter, he claimed that Mr. Wright had defaulted on the job because of work done by another contractor and that additional funds would be needed to complete the work. Mr. Wright was not pleased with the quality of work performed on the job and stopped paying Mr. Wilson. Some of the work had to be redone by another contractor. For example, the plumbing was not installed correctly; the countertop was not level; a weight-bearing wall was braced incorrectly; and drywall was applied over the light switches. Mr. Wright was under the impression that the work by Mr. Wilson was not inspected because the funds were not coming from a bank. Inspection was only performed when the job was finished by the second contractor. Mr. Wilson admitted that he has been doing construction work for 20 years and did not believe a state license was necessary. He believed that his occupational license was all he needed to perform construction work. Mr. Wilson claimed that he did not perform any plumbing work for Mr. Wright or the amount he did was minimal. However, Mr. Wilson's proposal to Mr. Wright clearly includes plumbing work among those items to be performed. Whether or not he actually did plumbing work on the job, Mr. Wilson negotiated a contract to perform such work. There was no evidence presented that Mr. Wilson was offering to perform or performing any contracting services under the supervision of any licensed contractor. The Department incurred investigative costs, excluding any costs associated with an attorney's time, in the amount of $401.83.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Respondent violated Section 489.127(1)(f), Florida Statutes; That an administrative fine of $5,000.00 be imposed; and That costs of investigation and prosecution in the amount of $401.83 be assessed. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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.state Filed with the Clerk of the Division of Administrative Hearings This 9th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Harry Wilson Wilson Construction and Roofing 12450 Biscayne Boulevard Apartment 415 Jacksonville, Florida 32218 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent violated Subsections 489.129(1)(g), (i), (j), and (m), Florida Statutes (2001), by allegedly engaging in financial mismanagement, abandoning a construction project, engaging in misconduct or being incompetent, and failing to disclose the rights of the consumer in a contract. (Statutory references are to Florida Statutes (2001).)
Findings Of Fact On July 18, 1984, the Construction Industry Licensing Board (the Board) licensed Respondent as a Florida State Certified General Contractor pursuant to license number CG C028520. Respondent registered with the Board as doing business in the name of "Midgett Development Inc." (Midgett Development). Respondent conducted business as Midgett Development in 2001. In 2001, Respondent also conducted business as a licensed real estate broker through Sundial Group Enterprises, Inc. (Sundial). On February 20, 2001, Respondent executed a contract with Ms. Linda Luck (Luck) requiring Midgett Development to build a residential home on a vacant lot located at 1510 Northeast 11th Street, Cape Coral, Florida, that Sundial was to purchase from a third party (the contract). The contract identifies Midgett Development as the contractor and Sundial as the purchaser of the lot. The contract violates Subsection 489.129(1)(i). The contract does not contain a written statement explaining the consumer rights to which Luck is entitled under the Construction Industry Recovery Fund. The contract requires the contractor to use its best efforts to deliver the completed residence "on or about 120 days" from the start of construction. The start of construction is defined as the day footings are poured; or the day rough plumbing is begun if the contractor uses monolithic footings and slab. The contract provides that time is of the essence. The contract price is $70,000.00 and pays the cost of purchasing the lot and the cost of constructing the residence. The contract requires Luck to pay $20,000 at the signing of the contract and an additional $50,000 at the closing for the purchase of the lot. Luck paid Midgett Development the total contract price on February 20, 2001. Luck issued two separate checks to Midgett Development for $20,000 and $50,000. Each check is dated February 20, 2001. Sundial closed on the purchase of the lot and deducted a buyer's real estate commission from the closing proceeds. Sundial or Respondent took title to the lot. Respondent testified that he did not apply for the building permit until he had clear title to the lot. The closing date for the lot acquisition is not in evidence. Respondent and Midgett Development failed to begin construction of the residence within 90 days of the date of the contract within the meaning of Section 489.129(1)(j). Respondent applied for a building permit from the City of Cape Coral, Florida (Cape Coral) on January 10, 2002, approximately 324 days after executing the contract. Respondent provided no credible and persuasive explanation for his delay in applying for a permit. On direct examination, Respondent testified that he expended $19,000 of the $70,000 shortly after he executed the contract, in relevant part, to purchase the lot. Respondent later testified that he did not apply for a building permit before January 10, 2002, because he did not have clear title to the lot before that date. Respondent's testimony is not supported by other evidence and is neither credible nor persuasive. Cape Coral issued a building permit for the residence on March 11, 2002, approximately 394 days after Respondent executed the contract. By May 2002, approximately 80 days after receiving the building permit, no evidence of construction activity could be observed on the lot. By July 30, 2002, approximately 533 days after executing the contract, Respondent and Midgett Development "began construction," as that phrase is defined in the contract. On July 30, 2002, Cape Coral issued favorable foundation and plumbing inspections. Respondent and Midgett Development abandoned the construction project while each was under contract as a contractor within the meaning of Subsection 489.129(1)(j). Assuming arguendo that Respondent and Midgett Development had legitimate reasons for not beginning construction prior to July 30, 2002, Respondent and Midgett Development abandoned the construction project on October 30, 2002, approximately 90 days after July 30, 2002, without just cause, and without notice to Luck. After July 30, 2002, Respondent and Midgett Development did not engage in any further construction activity, and Cape Coral rescinded the inspection approval. When Respondent and Midgett Development abandoned the construction project, they committed mismanagement and misconduct in the practice of contracting within the meaning of Subsection 489.129(1)(g)2. At the time Respondent and Midgett Development abandoned the project, the percentage of completion was less than the percentage of the total contract price paid by Luck. Respondent and Midgett Development caused financial harm to Luck. As of the date of hearing, Respondent and Midgett Development had not completed the project and had not refunded any of the money paid to them. Respondent provided no credible and persuasive explanation for the failure to either construct the residence or refund the money paid by Luck. Respondent's testimony that Luck requested Respondent to stop construction is not supported by other evidence, including Luck's testimony. Luck's testimony is credible and persuasive. If it were found that Luck asked Respondent not to complete construction, the purported request is not material to this proceeding. Respondent began construction on July 30, 2002. Respondent testified that Luck asked Respondent on April 1, 3, and 12, 2003, not to complete construction. Respondent had ample time between July 30, 2002, and April 1, 2003, to complete construction. He also had ample time between February 20, 2001, and July 30, 2003, to complete construction. Respondent and Midgett Development misallocated funds entrusted to them by Luck within the meaning of Subsection 489.129(1)(m). Neither Respondent nor Midgett Development has reimbursed Luck or paid restitution to her. Between November 15, 2002, and August 18, 2003, Respondent paid approximately $13,074 to third parties for living expenses incurred by Luck, including rent, utilities, and similar expenses. Those amounts do not constitute restitution or reimbursement of part of the $70,000 paid by Luck for the construction of her residence. Luck paid Respondent $70,000 to build a house and not to pay her living expenses. Luck is a single parent and would have been evicted and "out on the street" unless Respondent paid her living expenses. Luck was unable to pay her living expenses because Respondent had $70,000 of Luck's money. The payments made by Respondent may, or may not, be treated by the circuit court as a set off against a judgment obtained by Luck in circuit court. That determination, however, is beyond the scope of this proceeding. Respondent testified that he spent another $19,000 for Luck. However, Respondent expended most of that sum purchasing a lot owned either by Sundial or Midgett Development, earning a commission for Sundial, and constructing some improvements on the lot. None of that money is restitution or reimbursement to Luck. Petitioner previously disciplined Respondent for violations of Chapter 489 in Department of Business and Professional Regulation Case Numbers 200003354 and 200108551. Petitioner conducted each matter as an informal hearing before the agency. In the former case, Petitioner and Respondent entered into a written Stipulation on October 29, 2001. Respondent agreed to satisfy a civil judgment against him but neither admitted nor denied the allegations against him. In the latter case, Petitioner entered a default judgment against Respondent on March 4, 2003, for failure to satisfy another civil judgment against Respondent and placed Respondent on probation for two years. Petitioner has incurred investigative costs in the instant proceeding that exclude costs associated with the time expended by attorneys for Petitioner (investigative costs). The total investigative costs incurred by Petitioner are $1,429.61.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding that Respondent and Midgett Development are guilty of the violations alleged in the Administrative Complaint; revoking the license and registration of Respondent and Midgett Development; imposing an administrative fine of $5,000; and ordering Respondent and Midgett Development to make full restitution to Luck and to pay investigative costs in the amount of $1,429.61. DONE AND ENTERED this 28th day of October, 2003, 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 28th day of October, 2003. COPIES FURNISHED: Kimberly Clark Menchion, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Darrin R. Schutt, Esquire Seeman & Schutt, P.A. 1105 Cape Coral Parkway, East Suite C Cape Coral, Florida 33904 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Lamar "Marty" Campbell was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Mr. Campbell readily acknowledges that he has not had training or education in construction or contracting and has never held any licenses related to any type of construction or contracting. At all times material to the allegations of the Administrative Complaints, Johnston Handyman Services did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Lamar Campbell, resides in Gulf Breeze, Florida. After Hurricane Ivan, he and his roommate took in Jeff Johnston, who then resided in Mr. Campbell's home at all times material to this case. Mr. Johnston performed some handywork in Respondent's home. Mr. Johnston did not have a car, a bank account, or an ID. Mr. Campbell drove Mr. Johnston wherever he needed to go. At some point in time, Mr. Campbell drove Mr. Johnston to obtain a handyman's license in Santa Rosa County. Mr. Campbell did not apply for the license with Mr. Johnston and Mr. Campbell's name does not appear on this license. The license is in the name of Johnston's Handyman Services. Mr. Campbell is a neighbor of Kenneth and Tracy Cauley. In the summer of 2005, which was during the period of time when Mr. Johnston resided in Mr. Campbell's home, the Cauleys desired to have repairs done on their home to their hall bathroom, master bathroom, kitchen and laundry room. With the help of Mr. Campbell and others, Mr. Johnston prepared various lists of repairs that the Cauleys wanted performed on their home. In August 2005, Mr. Johnson and Mr. Campbell went to the Cauley's home and the proposed repairs were discussed with the Cauleys. There are documents in evidence dated August and October, 2005, which the Cauleys perceive to be contracts for the repairs to be done in their home. However, these documents are not contracts but are estimates, itemizing both materials and labor. The documents have the word "Estimate" in large bold type at the top and "Johnston Handyman Services" also at the top of the pages. The list of itemized materials includes electrical items, e.g., light fixtures and wiring. Also in evidence are documents dated August and October, 2005, with the word "Invoice" in large bold letters and "Johnston Handyman Services" at the top of the pages. Both Mr. and Mrs. Cauley acknowledge that Mr. Johnston performed the vast majority of the work on their home. However, at Mr. Johnston's request, Mr. Campbell did assist Mr. Johnston in working on the Cauley residence. Between August 5, 2005, and October 11, 2005, Mrs. Cauley wrote several checks totaling $24,861.53. Each check was written out to Marty Campbell or Lamar Campbell.1/ Mr. Campbell acknowledges endorsing these checks but asserts that he cashed them on behalf of Mr. Johnston, who did not have a bank account or identification, and turned the cash proceeds over to Mr. Johnston. Further, Mr. Campbell insists that he did not keep any of these proceeds. The undersigned finds Mr. Campbell's testimony in this regard to be credible. Work on the project ceased before it was finished and Mr. Johnston left the area. Apparently, he cannot be located. The total investigative costs, excluding costs associated with any attorney's time, was $419.55 regarding the allegations relating to Case No. 06-2764, and $151.25 regarding the allegations relating to case No. 06-3171, for a total of $570.80.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1), Florida Statutes; imposing a fine of $500 for a violation of Section 489.531(1), Florida Statutes, and requiring Respondent, Lamar Campbell, to pay $570.80 in costs of investigation and prosecution. DONE AND ENTERED this 9th day of March, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of March, 2006.
The Issue The issues to be resolved in this proceeding concern whether Section 255.0515, Florida Statutes, which applies to "state contracts", applies to the contract involving school construction in the case at bar. As a part of that consideration, it must be determined whether approval by the Respondent, The Leon County School Board (Board), of the substitution of Petitioner, G.A.P. Enterprises, Inc. (G.A.P.), as a subcontractor was "state agency action" for purposes of Section 120.57(1), Florida Statutes, which can be challenged in a proceeding before the Division of Administrative Hearings. It follows then that it must be determined whether G.A.P. has standing to challenge such a state agency action, if the Board's approval, indeed, is such. If, indeed, the Petitioner is in the "zone of interests" sought to be protected by the enactment of Section 255.0515, Florida Statutes, then it must be determined whether good cause exists for G.A.P. to have been removed as the site work and underground utility contractor by the general contractor, the Intervenor herein, Watkins Engineers & Constructors, Inc. (Watkins).
Findings Of Fact The Board formulated final construction plans and specifications for a new school at Fort Braden sometime in July, 1992. Upon the final plans and specifications being prepared and executed, the Board initiated procedures for letting a construction contract to a general contractor through state mandated competitive bidding procedures. Watkins is a general contractor engaged in construction of commercial, industrial and other large non-residential construction projects. It became aware of the project proposed by the Board and obtained a copy of the plans and specifications preparatory to preparing and submitting a bid to the Board on the school project. In preparation for submitting a bid for the site work and underground utility work to all of the general contractors bidding on the project, G.A.P. obtained a copy of the plans and specifications, as well, and attended a pre-bid conference. On August 11, 1992, G.A.P. sent, by facsimile, a preliminary "scope sheet" to all of the general contractors, including Watkins. That scope sheet was sent for the purpose of informing the general contractors that G.A.P. would be submitting a bid to them for the site work package and to generally describe the components of the project that would be included in the G.A.P. bid. On August 17, 1992, G.A.P. sent by facsimile a more detailed scope sheet which specified the precise work to be included in the G.A.P. bid to be submitted the next day. This sheet was sent to Watkins and to the other general contractors who were preparing a bid on the project. On August 18, 1992, at approximately 10:00 a.m., the bid day, G.A.P. maintains that it sent a facsimile bid for the site work described in the detailed scope sheet to Watkins and the other general contractors. G.A.P.'s price for this work was $1,286,276.00. The G.A.P. bid stated: "At this time, we are not bondable. We can acquire a bond through a company for a 6 percent increase in our price. This increase would include the bond." Watkins' testimony is to the effect that it did not actually receive that facsimile transmission, although it was received by the other general contractors to whom it was sent. In any event, on August 18, 1992, Watkins submitted its bid to the Board for the school project. Pursuant to the bidding requirements, it listed G.A.P. as a major subcontractor to perform the site work, paving, well work, and sewage treatment plant work. On the morning of the August 18th bid day, Michael Imbler of Watkins had called the various prospective site work subcontractors to verify the scope of the work they proposed and to confirm that their prices included certain specific items of work. As he spoke to the subcontractors, he made checkmarks on a spread sheet in order to confirm the items that were included in the proposals from the subcontractors. He had telephone conversations with Mr. Strickland of G.A.P. on that day. He first discussed with him the scope of the work to be submitted by G.A.P. and during that conversation, was told by Mr. Strickland that G.A.P. was bondable but that Strickland was unsure of the rate. The second conversation with Strickland later that morning was to get further clarification concerning the scope of the work proposed by G.A.P. In the final conversation that morning, Mr. Strickland gave Mr. Imbler G.A.P.'s bid price and he wrote that price down on the proposal sheet he had received from G.A.P., later transferring that bid price to his own spread sheet. On bid day, Douglas Wright, a vice-president of Watkins, read the list of proposed subcontractors. Being unfamiliar with G.A.P., he asked Mr. Imbler about them and whether they were bondable. Mr. Imbler told him that G.A.P. had submitted a comprehensive bid proposal and was bondable. Mr. Strickland insisted that he transmitted the information relating to his bid to Watkins, via a facsimile letter, containing the bid price, as well as the above-quoted statement that G.A.P. was not bondable, except through a third party at a 6 percent premium. Watkins maintains that it did not receive that facsimile. In any event, on August 19, 1992, Mr. Strickland met with Mr. Imbler and Mr. Johnson of Watkins. In addition to getting information relating to G.A.P. and their business references, Watkins was, at that point at least, told that G.A.P. was not bondable but that it could acquire a bond through a third party at a rate of 6 percent added to the price. Mr. Imbler reported that information to Mr. Wright. On August 21, 1992, Watkins submitted a more detailed listing of subcontractors and suppliers to the Board. G.A.P. was listed as the subcontractor to perform the building layout, clearing, and general site work. Watkins issued a certification to the Board concerning each subcontractor to the effect that its determination was to its complete satisfaction that such contractors maintained fully-equipped organizations, capable of technically and financially performing all pertinent work and that they had made similar installations in a satisfactory manner. Thereafter, on August 26, 1992, the Board awarded the Fort Braden school contract to Watkins for a contract price of approximately $7.4 million. Watkins had a standing policy to the effect that major subcontractors had to be bonded unless Watkins had previously done work with them or unless the requirement was waived by the appropriate corporate officer of Watkins. Watkins had never done business with G.A.P. in the past, which is why Watkins had required that G.A.P. provide it with references so that it could check with prior entities or firms with whom G.A.P. had done business to ascertain G.A.P.'s qualifications. Mr. Douglas Wright was one of the corporate officers assigned the authority to accept or reject a subcontractor for a job based upon its bonding capacity or other circumstance. Mr. Wright was concerned about the lack of bonding capacity in G.A.P. but decided to delay action to ascertain if the Board was actually going to re-bid the contract or go through with the award. This was because Watkins, although low bidder, had exceeded the construction budget of the Board for the project. Mr. Wright also wanted to determine, upon further inquiry, who the third party supplying the performance bond would be and to get further information about G.A.P. as to its general performance capabilities. After awarding the contract to Watkins, the Board requested that Watkins agree to engage in "value engineering" in order to ascertain if the project could be reduced in scope and in price in some areas of work so that the entire project could be constructed and finished within the Board's construction budget. A "value engineering" committee was thus appointed consisting of the project architect, engineers, Board staff, Watkins' staff, and PTA members. The Watkins' representatives on the value engineering committee were Michael Imbler and Mark Carrell. Mr. Wright, after initially committing Watkins to the value engineering process at the request of Mr. Byrd of the Board staff, did not attend any value engineering meetings or actively participate in that phase of the pre-construction process. In discussions with the Board in the value engineering process, it was agreed that when an item was changed, in order to confirm prices quoted by the subcontractors on the job as accurate ones, additional subcontractors, other than the listed low bidder, would be called upon to verify price information. None of the subcontractors being used for verification purposes were told that there was potential for them to be awarded the contract. They were being used to insure that the Board was receiving good value for the changes and reductions that were being made in the scope of the project. No subcontractor, including G.A.P., was asked to re-compute its original price submitted for the job. In April, 1992, G.A.P. had been cited by the Leon County Code Enforcement Board for violating the excavating, grading and site work code provisions by clearing several residential lots without being licensed as an excavating, grading and site work licensed contractor. Ms. Angela Smith informed Mr. Paramore of G.A.P., in her capacity as enforcement officer for environmental regulations, that his state license as an underground utility contractor would not authorize him doing site work which was not directly related to underground utility installation work. In view of this circumstance, G.A.P. applied to the Leon County Licensing and Examination Board to become licensed as an excavation, grading and site work contractor on the day after Watkins was awarded the contract, August 26, 1993. Watkins was unaware (not being informed by G.A.P. or by any other means) that G.A.P. lacked a local excavating, grading and site work contractor's license or that it was filing an application to become so licensed. Watkins, at the time of the bid award, was unaware also that G.A.P. had been cited for performing such work without proper licensure in April of 1992. Jerry Hicks, the project architect, is also a member of the licensing board. He noted on September 3, 1992 that Mr. Paramore of G.A.P. had applied to take the licensing examination to become qualified as a licensed excavating, grading and site work subcontractor and noted that his application was agendaed for the meeting of September 3, 1992. Mr. Hicks thus realized that G.A.P. was not properly licensed to do the site work at the Fort Braden school project. He therefore telephoned Mark Carrell of Watkins to inform him of that fact and that the licensing board meeting that evening would involve a determination of whether or not Mr. Paramore of G.A.P. would be permitted to sit for the examination to become properly licensed. Mr. Carrell immediately told Mr. Imbler of Watkins and both then informed Mr. Wright. Mr. Wright, at that point, had not yet decided how to resolve the question of G.A.P.'s lack of bonding capacity. On or about September 1, 1992, Watkins had received a company memorandum from its parent corporation directing a change in the company policy concerning how Watkins could approve the use of subcontractors who were not bondable. That directive stated as follows: Doug/Eddie: While we have not had the problem yet in our industrial work, subcontractor failure has cost us dearly on the commercial side. The decision has been yours [Doug Wright], but now I am asking that you talk to me before contracting with unbonded subs so I have the chance to agree or disagree. Better stated, it would give me a chance to understand and concur with a no bond decision. Don 9/1/92 (See G.A.P. exhibit 8 in evidence). Construction was due to start on the school project on September 8, 1992, including a meeting between the environmental department of the county and the site work subcontractor. The problem of G.A.P.'s licensure and bonding capacity was a complicating factor in the circumstance of the necessity to avoid any significant delays in the construction start. Any significant delay during the course of the job could jeopardize the project and expose either the contractor or the Board to damages potentially amounting to $5,000.00 per day. Mr. Wright thus had to make a decision without further delay as of September 3, 1992. The bidding documents contained a requirement that all subcontractors be properly licensed. The contract with the Board stated at section 5.2.2 that: "The contractor shall not contract with a proposed person or entity to whom the owner or architect has made reasonable and timely objection." (See Watkins exhibit 6 in evidence). Mr. Wright interpreted the telephone call from Mr. Hicks, the project architect, to constitute an objection in accordance with this contractual provision, to the use of G.A.P. as the site work subcontractor based upon G.A.P.'s lack of proper licensure status. He felt, therefore, that in view of this circumstance, coupled with the bonding capacity problem, he had to immediately replace G.A.P. Mr. Wright thus instructed Mr. Carrell and Mr. Imbler of his firm to personally visit and inform Mr. Strickland of G.A.P. of the decision not to use them as the subcontractor. Mr. Imbler and Mr. Carrell personally visited Mr. Strickland and informed him of that fact, stating as the reason the problem of bonding capacity and the licensure status. Mr. Wright had not been involved in the value engineering effort before making the decision to replace G.A.P. At that time, he was not aware of any of the results in terms of money involved or scope of work of the value engineering price reduction efforts. No one from Watkins at that point had made any attempt to discuss with Crowder, Eubanks Excavating, Inc., or any of the other potential site work subcontractors what their price might be to undertake the overall site work for the job. In making the decision to not use G.A.P., Mr. Wright thus did not already have a suitable alternative site work subcontractor arranged-for. He was taking a risk at finding one on short notice who would be willing to negotiate a price for the required work at a competitive level, given the bid price and Board construction budget that Watkins was required to accommodate. Angela Smith, the director of environmental inspection and enforcement for the county, who had cited G.A.P. on April 17, 1992 for violation of the Environmental Management Act of Leon County because of clearing lots without being properly licensed, testified at hearing that in her opinion, G.A.P. could not legally perform the site work at the Fort Braden school with its underground utilities contractor's license. This opinion was shared by Paul Byrd, the director of construction for the Board. He concurred with the decision to replace G.A.P. and was considering requiring Watkins to do it on account of the improper licensure circumstance. In any event, on September 16, 1992, Mr. Carrell wrote to Mr. Hicks, the project architect, informing him that G.A.P. had been replaced due to the bonding and licensing problem. On September 29, 1992, Mr. Wright, in response to a suggestion from Mr. Hicks, wrote to Graham Carothers, the Board's attorney, requesting that the Board approve the change of site work subcontractors. On October 13, 1992, after notice to both Watkins and G.A.P., the Board unanimously approved Watkins' request to change subcontractors from G.A.P. to Crowder. In order for Watkins to have undertaken the site work utilizing the general contractor's license and the hiring of G.A.P. to do the actual work, Ms. Smith, in her testimony, established that it would be necessary, under the county ordinance involved, for Watkins to provide her office with a letter in which Watkins would assume responsibility for G.A.P.'s site work and agree to direct and supervise it. Because Watkins did not have any in-house expertise in site work or in compliance with environmental regulations involved with site work, it needed a firm which had those qualifications in its own right, so that responsibility and related liability could be passed on to such a site work subcontractor. Under the county ordinance interpreted by Ms. Smith, G.A.P. did not have proper licensure to allow it to assume that responsibility and liability. Thus, in order for Watkins to avoid assuming that responsibility and liability directly, it would have to hire a subcontractor who was properly licensed to do the site work. A subcontractor properly licensed to do the site work would have the primary responsibility for complying with environmental ordinances and coordinating the work with the local environmental authorities charged by ordinance with regulating the work. When Mr. Wright made the decision to replace G.A.P., he was not aware that G.A.P. could be hired as a subcontractor if the requisite letter assuming responsibility was provided by Watkins to the Environmental Inspection and Enforcement Department. When later confronted with the availability of that option, Mr. Wright stated that he never would have agreed to handle the situation in that manner, since he was looking for a site work contractor to assume primary responsibility in complying with local codes applicable to that phase of the work. State Contract Issue The Department of Education (DOE) regulates many aspects of the construction of school facilities by local school boards pursuant to its authority under Chapter 235, Florida Statutes, and Chapter 6A-2, Florida Administrative Code. It should be noted, parenthetically, that in order for Section 255.0515, Florida Statutes, to apply in this proceeding and to get to the issue of whether G.A.P. has standing to call into question the substitution of subcontractors and the "good cause" issue, it must first be established if this is a "state contract" under Chapter 235, Florida Statutes, related to educational facilities. It has already been held in this proceeding that the Board is a "state agency" so that decisions it makes affecting substantial interests can initiate a Section 120.57(1), Florida Statutes, proceeding (see the Hearing Officer's Order entered on January 21, 1993 and cases cited therein). It is also established that the subject contract was entered into pursuant to the competitive bidding provisions of Chapter 235, Florida Statutes, related to educational facilities. Such contracts and facility projects are regulated pursuant to a related body of rules enacted and administered for such contracting by the DOE at Chapter 6A-2, Florida Administrative Code. Thus, the subject contract involved in this proceeding is under the regulatory authority of the DOE. The DOE, for instance, requires each school project such as this to be submitted to the DOE for approval in terms of its concept, plans and specifications. The DOE requires that an educational facility such as this be publicly advertised and competitively bid. It requires the local Board to file a contract with the DOE and to submit all change orders as to the project to the DOE. The design of the project is subject to DOE review and approval, and all building specifications and inspections are administered or regulated by the DOE. However, the evidence shows that no state funds are involved or to be expended in furtherance of this contract and project. Rather, local funds, apparently consisting largely of a bank loan in favor of the Board, are funding the project. Further, the overall tenor of the evidence shows that the project, the project site, and the improvements to be constructed thereon are and will be wholly owned by the Board itself, which is not a state agency in terms of actions it takes beyond the scope of Chapter 120, Florida Statutes, such as taking title to property, entering into contracts for construction of improvements on that property, and the like.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Board dismissing the petition of G.A.P. Enterprises, Inc. for lack of standing. DONE AND ENTERED this 1st day of June, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 1st day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6805 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Accepted, but irrelevant. 6-8. Accepted. 9. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-13. Accepted, but not in themselves dispositive of the material issues presented. 14. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-16. Accepted. 17-18. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by the preponderant evidence of record. 19-20. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by the preponderant evidence of record. Accepted, in terms of describing Watkins' legal argument. 24-25. Accepted, but not in itself materially dispositive of the issue of the existence of a "state contract". Rejected, as not constituting a finding of fact but a legal interpretation which is determined to be erroneous. Accepted, but immaterial in this de novo proceeding. Rejected, G.A.P.'s interest is indirect. See, Systems Controls and Services, Inc. v. St. Johns River Water Management District, DOAH Case No. 92-3385BID; Recommended Order entered June 15, 1992). Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not supported by preponderant evidence of record. Accepted, but not itself materially dispositive. Accepted. Rejected, as not entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Intervenor's Proposed Findings of Fact 1-44. Accepted. COPIES FURNISHED: Neil H. Butler, Esquire BUTLER & LONG, P.A. 322 Beard Street Tallahassee, Florida 32303 C. Graham Carothers, Esquire AUSLEY, MCMULLEN, ET AL. 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Davisson F. Dunlap, Jr., Esquire PENNINGTON, WILKINSON, ET AL. Post Office Box 13527 Tallahassee, Florida 32317-3527 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Richard Merrick, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, Florida 32304-2907
The Issue At issue in this proceeding is whether Respondent failed to abide by the coverage requirements of the Workers' Compensation Law, Chapter 440, Florida Statutes (2002), by not obtaining workers' compensation insurance for her employees; and whether Petitioner properly assessed a penalty against Respondent pursuant to Section 440.107, Florida Statutes (2002).
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation for their employees. § 440.107, Fla. Stat. (2002).1 On August 8, 2003, Respondent was a sole proprietor in the construction industry by framing single-family homes. On that day, Respondent was the sub-contractor under contract with Marco Raffaele, general contractor, providing workers on a single-family home(s) located on Navigation Drive in the Panther Trace subdivision, Riverview, Florida. It is the responsibility of the Respondent/employer to secure and maintain workers' compensation coverage for each employee. During the early morning hours of August 8, 2003, Donald Lott, the Department's workers' compensation compliance investigator, was in the Panther Trace subdivision checking on site workers for potential violations of the workers' compensation statute. While driving down Navigation Drive in the Panther Trace subdivision, Mr. Lott approached two houses under construction. There he checked the construction workers on site and found them in compliance with the workers' compensation statute. Mr. Lott recognized several of the six men working on the third house under construction next door and went over to investigate workers' compensation coverage for the workers.2 At the third house Mr. Lott interviewed Darren McCarty, Henry Keithler, and Mike Sabin, all of whom acknowledged that they worked for Respondent, d/b/a Riopelle Construction. Mr. Lott ascertained through Southeast Leasing Company (Southeast Leasing) that three of the six workers, Messrs. Keithler, Sabin, and McCarthy were listed on Southeast Leasing Company's payroll through a valid employee lease agreement with Respondent as of August 8, 2003. The completed employee lease agreement provided for Southeast Leasing Company to provide workers' compensation coverage for only those employees whose names, dates of birth, and social security numbers are contained in the contractual agreement by which Southeast Leasing leased those named employees to the employing entity, Respondent, d/b/a Riopelle Construction. Mr. Lott talked with the other three workers on site, Ramos Artistes, Ryan Willis, and Robert Stinchcomb. Each worker acknowledged working for (as an employee) Respondent on August 8, 2003, in the Panther Trace subdivision. In reply to his faxed inquiry to Southeast Leasing regarding the workers' compensation coverage status for Messrs. Artistes, Willis, and Stinchcomb, Southeast Leasing confirmed to Mr. Lott that on August 8, 2003, Southeast Leasing did not have a completed employee leasing contractual agreement with Respondent for Messrs. Artistes, Willis or Stinchcomb. Southeast Leasing did not provide workers' compensation coverage for Messrs. Artistes, Willis or Stinchcomb on August 8, 2003.3 Southeast Leasing is an "employee" leasing company and is the "employer" of "leased employees." As such, Southeast Leasing is responsible for providing workers' compensation coverage for its "leased employees" only. Southeast Leasing, through its account representative, Dianne Dunphy, input employment applications into their system on the day such application(s) are received from employers seeking to lease employees. Southeast Leasing did not have employment applications in their system nor did they have a completed contractual employment leasing agreement and, therefore, did not have workers' compensation coverage for Messrs. Artistes and Willis at or before 12:08 p.m. on August 8, 2003. After obtaining his supervisor's authorization, Mr. Lott served a Stop Work and Penalty Assessment Order against Respondent on August 8, 2003, at 12:08 p.m., requiring the cessation of all business activities and assessing a penalty of $100, required by Subsection 440.107(5), Florida Statutes, and a penalty of $1,000, as required by Subsection 440.107(7), Florida Statutes, the minimum penalty under the statute. On August 12, 2003, the Department served a Corrected Stop Work and Penalty Assessment Order containing one change, corrected federal identification number for Respondent's business, Riopelle Construction. Mr. Stinchcomb, the third worker on the construction job site when Mr. Lott made his initial inquiry, was cutting wood. On August 8, 2003, at or before 12:00 p.m., Mr. Stinchcomb was not on the Southeast Leasing payroll as a leased employee covered for workers' compensation; he did not have individual workers' compensation coverage; and he did not have a workers' compensation exemption. On that day and at that time, Mr. Stinchcomb worked as an employee of Riopelle Construction and was paid hourly by Riopelle Construction payroll check(s). Respondent's contention that Mr. Stinchcomb, when he was working on the construction job site between the hours of 8:00 a.m. and 1:00 p.m. on August 8, 2003, was an independent contractor fails for the lack of substantial and competent evidence in support thereof. On August 8, 2003, the Department, through Mr. Lott, served an administrative request for business records on Respondent. Respondent failed and refused to respond to the business record request. An Order requiring Respondent to respond to Petitioner's discovery demands was entered on December 1, 2003, and Respondent failed to comply with the order. On December 8, 2003, Respondent responded that "every effort would be made to provide the requested documents by the end of the day" to Petitioner. Respondent provided no reliable evidence and Mr. Stinchcomb was not called to testify in support of Respondent's contention that Mr. Stinchcomb was an independent contractor as he worked on the site on August 8, 2003. Respondent's evidence, both testamentary and documentary, offered to prove that Mr. Stinchcomb was an independent contractor on the date in question failed to satisfy the elements required in Subsection 440.02(15)(d)1, Florida Statutes. Subsection 440.02(15)(c), Florida Statutes, in pertinent part provides that: "[f]or purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph(d)(1)." Subsection 440.02(15)(d)(1) provides that an "employee" does not include an independent contractor if: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. The testimony of Respondent and the testimony of her husband, Edward Riopelle, was riddled with inconsistencies, contradictions, and incorrect dates and was so confusing as to render such testimony unreliable. Based upon this finding, Respondent failed to present evidence sufficient to satisfy the requirement of Subsection 440.02(15)(d)1, Florida Statutes, and failed to demonstrate that on August 8, 2003, Mr. Stinchcomb was an independent contractor. Petitioner proved by a preponderance of the evidence that on August 8, 2003, Mr. Stinchcomb, while working on the single-family construction site on Navigation Drive in the Panther Trace subdivision was an employee of Respondent and was not an independent contractor. Petitioner proved by a preponderance of the evidence that Mr. Stinchcomb did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Willis was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision as an employee of Respondent, who paid him $7.00 per hour. Mr. Willis was not listed on the employee list maintained by Southeast Leasing, recording those employees leased to Respondent. Mr. Willis did not have independent workers' compensation coverage on August 8, 2003. Mr. Willis had neither workers' compensation coverage nor a workers' compensation exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Willis did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Artises was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision and was an employee of Respondent. Mr. Artises had been in the employment of Respondent for approximately one week before the stop work order. Mr. Artises did not have independent workers' compensation coverage on August 8, 2003. Mr. Artises did not have a workers' compensation coverage exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Aristes did not have workers' compensation coverage on August 8, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, affirming and adopting the Corrected Stop Work and Penalty Assessment Order dated August 12, 2003. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 29th day of March, 2004.
The Issue The issues to be determined are whether: (1) a violation of section 556.107(1)(a), Florida Statutes, occurred; (2) relating to a “high-priority subsurface installation” under section 556.116(1)(b); (3) which proximately caused an “incident” under section 556.116(1)(c); (4) for which a fine may be imposed against the violator in an amount not to exceed $50,000.00.
Findings Of Fact Stipulated Facts Sunshine 811 is the free-access notification system established under the Underground Facility Damage Prevention and Safety Act (the Act). See §§ 556.101 – 556.116, Fla. Stat. (2017). Section 556.105(1)(a) requires an excavator before beginning any excavation or demolition to provide Sunshine 811 with certain information that will allow a utility company to mark the location of underground facilities in the area of the proposed excavation. On January 8, 2018, Francisco Plascencia, an employee and agent of Medalist, was operating a trackhoe excavator on the property located at or around 1380 SE Cove Road, Stuart, Florida. While Medalist was digging to uproot a tree, the trackhoe excavator ruptured a six-inch underground gas- distribution main owned and operated by Peoples Gas. Before beginning the excavation, Medalist did not “call 811” or otherwise notify Sunshine 811 about the excavation. Accordingly, the excavation site did not contain “locate marks” identifying on the surface of the earth the location of the six-inch underground gas main. The Parties Medalist is owned by Jeremy LeMaster who is a licensed building contractor. Since 2007, Medalist has built over 500 homes in Martin County. Peoples Gas is the utility company that owns and operates the underground gas-distribution main that is the subject of this proceeding. Peoples Gas is a member operator of Sunshine 811 and submitted the High Priority Subsurface Installation Incident Report and Commitment regarding the incident at 1380 SE Cove Road, Stuart, Florida. The Incident Joshua Turpie is the senior utility technician with Peoples Gas who performs line locates when Peoples Gas gets tickets from Sunshine 811. Mr. Turpie testified that if a contractor or homeowner calls Sunshine 811 before digging, it comes to him and he has a 48-hour window in which to mark the location of any underground gas line. This is done by placing flags, painting the ground and taking pictures. On the morning of January 8, 2018, Mr. Turpie responded to a location on Cove Road at the request of his supervisor, Scott Tinney. Mr. Tinney informed him that a drastic drop in gas pressure was occurring, and it seemed to be in the area of Mr. Turpie’s location. At the location, Mr. Turpie found fire trucks and police cars, and saw that a gas-distribution main was ruptured. After assessing the situation and further discussing it with his supervisor, who was now on-site, he assisted Peoples Gas contractor with the “make safe” operation. This entailed fully exposing the gas main and using a “squeeze off tool” to clamp the main at a location upstream of the rupture to stop the flow of gas. Mr. Turpie arrived on scene at 9:40 a.m. and the gas flow was stopped at 11:15 a.m. At the scene, Mr. Turpie also checked on his computer and saw that this particular gas- distribution main was designated as a high priority main because “it feeds basically everything in Stuart.” An outage at this type of main would have a high customer impact. This particular gas main serviced 50 percent residential and 50 percent commercial customers. For excavation work in the area of a high-priority gas main, Mr. Turpie would not only have flagged and marked the location, but also would have called the excavator and explained the high-priority nature of the gas main. In addition, a notification letter would also be sent to the excavator regarding the high-priority gas main and providing the contact information of relevant Peoples Gas employees. Peoples Gas would also have the opportunity to determine if it needed to place an employee on-site during excavation. A contractor for Peoples Gas repaired the gas main. Peoples Gas employees also “locked off” every customer’s meter. Four hundred and nine individual meters had to be physically locked off before restoration efforts could begin. Restoration involved re-introducing gas to the system, purging the lines of air, and physically turning on each meter, checking gas appliances, and checking for leaks. This process was labor intensive and involved deploying 36 Peoples Gas employees from around the state and two contractors from Miami. Peoples Gas set up a command center to which the employees from around the state reported. There, the teams were provided with outage lists of the metered customers in order to conduct the process of restoring service. Service restoration continued through the evening of January 9. On the morning of January 10, the deployed employees were sent back home and the local teams completed restoring service to residences. Community Impact At the location of the gas main rupture, first responders (i.e., fire rescue and police) set up a command center, redirected traffic away from that part of Cove Road, and evacuated nearby residences and a nearby school. The customers without service during the outage included two hospitals, four nursing homes, a fire station, schools, a correctional facility, a church, businesses, and residences. Property Damage and Service-Restoration Costs Ruth Weintraub is the Peoples Gas supervisor for Damage Prevention & Public Awareness. Ms. Weintraub testified that she did an accounting of the expenses incurred as a result of the gas line rupture. Ms. Weintraub calculated the amount based on: (i) lost gas in the line; (ii) labor; (iii) equipment; (iv) lodging and meals; (v) charges from the third•party contractors; and (vi) administrative costs. The amount was no less than $127,000.00, which would increase as Peoples Gas finalized its accounting. Medalist’s Actions Mr. LeMaster testified that he was alerted to the incident by a text from a field supervisor who had called 911 to report the event. Mr. LeMaster arrived at the scene within approximately 30 minutes after getting the text, and remained at the site until there was complete clearance. Mr. LeMaster testified that his employees are trained in Sunshine 811 procedures. “[T]hey don’t dig without having locates.” He surmised that Mr. Plascencia thought he was doing a good thing by using the trackhoe to remove a tree which was in the center of a staked driveway at the job site. Mr. Plascencia was not instructed to remove the tree. In fact, the only work to be done that day was the placement of silt fences. Prior to this incident, Medalist had never hit any underground lines and always contacted Sunshine 811 before digging. Mr. LeMaster testified that Mr. Plascencia was immediately terminated for not following company policy and procedures. Sunshine 811 Lance Horton is the manager for Pipeline Safety & Occupational Services at Peoples Gas. Mr. Horton also served on the Board of Directors of Sunshine 811. He explained that the Sunshine 811 call and locate procedure is “a damage prevention program in the effort . . . to protect underground facilities, not just gas but also electric, communication facilities, water, [and] sewer.” It is important to prevent “incidents such as this,” which put utility employees, first responders, and members of the public in peril.
