The Issue Whether Respondent, Department of Business and Professional Regulation, Electrical Contractors Licensing Board, appropriately denied Petitioner's, Kevin Harrington, application to take the examination for licensure as an electrical contractor.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is the state agency vested with the authority to test applicants seeking certification as electrical contractors. Petitioner is seeking certification (licensure) as an electrical contractor. On December 12, 2001, Respondent received Petitioner's application to take the Electrical Contractors Unlimited examination. On December 24, 2001, Respondent mailed Petitioner a letter requesting additional information. The letter requested that the additional information be received by Respondent no later than January 4, 2002. This date was later extended to January 8, 2002. On January 4 and January 7, 2002, Petitioner, through his attorney, forwarded the requested additional information to Respondent. Petitioner's application was complete on January 10, 2002. Respondent, Electrical Contractors Licensing Board("Board"), met on January 16 and 17, 2002. The Board delegates initial consideration of applications to take certification examinations to an Applications Committee consisting of members of the Board who make recommendations to the full Board on each application. Each application is examined by at least two Applications Committee members; if both recommend "denial of the application," or, if one recommends "approval of the application" and one recommends "denial of the application," the application is reviewed by a third Applications Committee member. Each member of the Applications Committee is provided a worksheet as a part of the application package which lists reasons for denial drawn from Subsection 489.511(2)(a)(3), Florida Statutes. After each application is considered by members of the Applications Committee, the application with the Applications Committee's recommendations, reasons for denial (if applicable), and other comments are given to a staff employee who prepares an approved/denial list which is presented to the full Board for consideration. The foregoing procedure was followed in the instant case. On January 16, 2002, Board members, Roger Lange and Kim DeBerry, who were members of the Applications Committee, considered Petitioner's application; both recommended denial of the application. Because there were two recommendations of denial, the application was considered by a third Applications Committee member, Dawn Johnson; she, too, recommended denial. Petitioner's application and the recommendations, reasons for denial, and comments of the Applications Committee were then given to a staff employee who prepared a summary list of all applicants with the recommendations for approval or denial by the Applications Committee with reasons given for denial for submission to the full Board. The full Electrical Contractors Licensing Board considered Petitioner's application on January 17, 2002, and unanimously denied the application. Petitioner was advised of the denial by letter dated February 8, 2002. Petitioner's Applicant's Affidavit dated November 16, 2001, indicates that he was seeking a license under Subsection 489 .511(2)(a)(3)(a), Florida Statutes. The Applicant's Affidavit specifically states: 489.511(2)(a)(3)(a), F.S. Has, within the six (6) years immediately preceding the filing of the application, at least three (3) years proven "management experience" in the trade or education equivalent thereto, or a combination thereof, but not more than one- half of such experience may be educational. (Please submit at least three (3) years of W- 2 Forms) The occupational skills and responsibilities of an electrical contractor are unique and require experience and understanding which are typically acquired by extensive, direct "on-the-job" training in the electrical contracting trade. Petitioner is an experienced General Contractor's project manager. His credentials as a General Contractor's project manager are impressive and the projects he has supervised are extensive. Petitioner has little or no direct supervisory experience in the electrical contracting trade. Petitioner's construction management experience is as a General Contractor project manager, not an Electrical Contractor project manager or similar position, and, as a consequence, he does not meet the "'management experience' in the trade" statutory requirement. Petitioner has an enviable academic record: an Associate of Science Degree With Honors from Miami-Dade Community College (1990), a Bachelor of Science in Building Construction from University of Florida (1993), 21 hours of graduate studies at Florida International University leading towards a Master of Building Construction degree. Petitioner's academic credentials have little direct application to the electrical contracting trade and, as a consequence, do not meet the "educational equivalent" to management experience statutory requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application to take the Certified Electrical Contractor's Licensure Examination. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. 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 10th day of January, 2003. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Rosemary Hanna Hayes, Esquire Hayes & Associates 3117 Edgewater Drive Orlando, Florida 32804 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Mr. Robinson, an African-American, was employed by Alliance at its Marianna, Florida, office from 1987 to 2006, when the facility closed. Mr. Robinson worked his way up from the assembly line, making $4.00 per hour, to steel yard coordinator, making $14.87 per hour. Mr. Robinson applied for the position of fabrication supervisor in 2004 and 2005. Both times, other people were chosen for the position. In 2004, Mr. Robinson was a finalist for the fabrication supervisor position. Steven Ramsey, a white male, was chosen for the supervisor position. Mr. Ramsey was hired from outside the company. Mr. Ramsey had considerably more experience as a supervisor than Mr. Robinson. In October 2005, the position for fabrication supervisor became vacant again. Mr. Robinson again applied for the position. The applicant pool was narrowed to two candidates, Mr. Robinson and John Warren (Mr. Warren), a white male. Both Mr. Robinson and Mr. Warren were interviewed by a committee consisting of the plant manager, the general manager, and hiring manager. Both candidates were current employees of Alliance. Alliance was looking for a supervisor with strong interpersonal skills. Both Mr. Robinson and Mr. Warren were valued employees of Alliance. In comparing their past evaluations at Alliance, Mr. Warren’s performance evaluations were stronger than Mr. Robinson’s. Mr. Robinson received two evaluations in 2004. On March 1, 2004, he received a score of 40 out of a possible 50. It was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. On May 12, 2004, he received a score of 40 on his annual evaluation. Again, it was noted that Mr. Robinson needed to improve his relationships with other supervisors and lead workers. Mr. Robinson received a score of 41 on his annual evaluation dated June 1, 2005. It was noted in his evaluation that he had improved in the area of interpersonal relationships over the past year. Mr. Warren received a score of 48 on his annual evaluation dated May 17, 2004. In the area of interpersonal relationships, his supervisor wrote: "Best in Fabrication." Leans forward to meet every challenge, keeps supervisors, peers and customers briefed at every step. Mr. Warren not only knows his customers, he has mastered the ability to identify customer needs before the customer realizes the need—and regularly exceeds customer expectations. Mr. Warren teaches customer service by example—what I call a "smooth operator." On his 2005 annual evaluation, Mr. Warren received a perfect score of 50. It was noted in his evaluation that Mr. Warren was a "solid role model." The evaluations of Mr. Warren and Mr. Robinson played an important role in determining who would be hired as fabrication supervisor. Based on the evaluations, Mr. Warren was the stronger candidate. Edward Mount (Mr. Mount) testified on behalf of Mr. Robinson. Mr. Mount is an African-American, who was employed with Alliance until November 2005. Mr. Mount left Alliance because the Alliance plant in Marianna was closing and would be relocated to Wisconsin. When Mr. Mount left Alliance, he was making $45,000 a year as a floor supervisor on the second shift. Mr. Mount felt that he had been treated fairly by Alliance and that Alliance had not discriminated against him based on his race during his employment with Alliance. During his tenure with Alliance, he was promoted more than five times and was given bonuses and raises. Mr. Robinson felt that Rick Frayniak (Mr. Frayniak), who was fabrication manager, was discriminating against him because of his race. However, Mr. Mount described Mr. Frayniak as a “hard but fair” supervisor, who had a hands-on approach to management. Mr. Mount never heard Mr. Frayniak make any racial remarks and did not feel that Mr. Frayniak had discriminated against him based on his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Robinson’s Petition for Relief. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of November, 2007.
The Issue The Petitioner has applied to take the Electrical Contractors' Licensing Board licensure examination and the Board proposes to deny the Petitioner's application on the ground that the Petitioner does not fully meet the experience requirements which are prerequisites to taking the examination. The parties stipulated that the Petitioner has satisfied one-half of the experience requirement pursuant to Rule 21GG-5.03(2), Florida Administrative Code, by reason of his having a bachelor's degree in electrical engineering from the University of Miami. Thus, the central issue in this case is whether the Petitioner's professional and business experience constitutes one and one-half years "proven experience in the trade as an electrical contractor or in a responsible management position with an electrical contractor." See Section 2489.521, Fla. Stat., Rule 2100-5.03(1), F.A.C.
Findings Of Fact Based on the testimony of the witnesses, the exhibits received in evidence, and the stipulations of the parties, I make the following findings of fact. Mr. Juan M. Reynes has applied to the Electrical Contractors' Licensing Board (hereinafter referred to as "the Board") to take the licensure examination for certification as an electrical contractor. Mr. Reynes' application was denied because the Board concluded that he had failed to demonstrate the experience required by Section 2489.521, Florida Statutes, as interpreted by Rule 21GG-5.03, Florida Administrative Code. Mr. Reynes is originally from Cuba, where his father ran an electrical contracting company. When Mr. Reynes was a teenager he began working in his father's business in 1949. He worked in a number of capacities, including work as an apprentice to an electrical engineer. Thereafter Mr. Reynes studied electrical engineering at the University of Havana and received a degree in electrical engineering during the middle or late 1950's. Thereafter, Mr. Reynes was licensed as an electrical engineer in Cuba. Following receipt of his degree and license as an electrical engineer, Mr. Reynes continued to work for his father's electrical contracting company from 1958 until sometime in 1962. During the period from 1958 to 1962, Mr. Reynes was involved in all aspects of the management of his father's electrical contracting company. His involvement in the management of the business included such things as signing contracts for the company, locating new business for the company, obtaining the necessary permits, dealing with the supply houses, and keeping the necessary employee records. In Cuba a license to practice electrical engineering also authorized the licensee to engage in the business of electrical contracting. The permitting procedure in Cuba was one in which permission to construct was obtained by having the appropriate government officials sign the blue prints. It was necessary to have an electrical engineer degree in order to submit blue prints for government approval. At the time Mr. Reynes was working as a licensed electrical engineer with his father's company there were laws in Cuba similar to Florida's worker's compensation laws and unemployment compensation laws. Workers in Cuba were also guaranteed certain other benefits such as guaranteed vacation days and sick leave. It was necessary to keep records regarding each employee. At the time Cuba did not have any laws similar to the Social Security laws in this country. When Mr. Reynes was studying for his electrical engineering degree in Cuba, his course work included studying the law of contracts. Thereafter Mr. Reynes spent a number of years in jail in Cuba as a political prisoner. Following his release from jail, from October of 1970 until January 1972 Mr. Reynes worked on some extensive electrical construction projects for Alfa Romeo in Cuba. After finishing that project, Mr. Reynes was able to obtain permission to leave Cuba and move to Spain. All of the electrical construction projects that Mr. Reynes was involved in within Cuba were built pursuant to the latest available edition of the North American National Electric Code. In Spain, Mr. Reynes did some work in the fields of electronics and electrical engineering. He left Spain and came to the United States. In the United States he has worked for a lot of companies in a variety of positions related to one aspect or another of electricity, but most of that experience is not relevant to the experience requirements for taking the electrical contractor's certification examination. While working in the United States, Mr. Reynes studied electrical engineering at the University of Miami and received a bachelor's degree in electrical engineering in May of 1981. He graduated cum laude as a result of receiving high grades, which he was able to do while also working full time to support himself and his family. In October of 1981, he took the licensure examination for professional engineer and passed it the first time he took it. Since February of 1982, he has been licensed as a professional engineer by the Board of Professional Engineers of the State of Florida. Since being licensed as a professional engineer, Mr. Reynes has owned and operated his own electrical engineering business. He has worked as an engineering consultant for several general contractors and electrical contractors, but he has not been in a responsible management position with an electrical contractor since coming to the United States, nor has he pulled any building permits for electrical construction in the United States. However, in working for electrical contractors, he has done such things as calculate the total number of man hours required for projects, calculate the total cost of supplies for projects, and supervised the actual construction of projects. In the operation of his own business Mr. Reynes has one full-time employee and two part-time employees. In the operation of his own business he has become familiar with such matters as preparation of payroll and the necessary deductions, the Internal Revenue Service requirements for businesses, worker's compensation insurance, and unemployment compensation insurance. An important part of the experience required by the applicable statute and rule is experience in the business activities aspect of electrical contracting. These activities include such things as payroll, insurance, bonding, worker's compensation, unemployment compensation, contract, and building laws.
Recommendation On the basis of all of the foregoing it is recommended that the Electrical Contractor's Licensing Board issue a Final Order concluding that Mr. Reynes is eligible to take the next electrical contractors' certification examination. DONE and ORDERED this 29th of November 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of November 1984. COPIES FURNISHED: Juan M. Reynes, 336 W. 16th Street Hialeah, Florida 33010 Arthur Wallberg, Esquire Assistant Attorney General Room 1601 The Capitol Tallahassee, Florida 323301 Allen R. Smith, Jr. Executive Director Florida Electrical Contractors' Licensing Board 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact On June 3, 1956 Petitioner received his degree of Bachelor of Science in Mechanical Engineering from the University of Oklahoma. In 1956 Petitioner took and passed a fundamentals of engineering examination in Oklahoma. This was in furtherance of his licensure as an Engineer-in-Training. It dealt with basic engineering subjects. He also took a principles and practice examination in that year in Oklahoma. The fundamentals of engineering examination was Part I and the principles and practices examination was Part II. The State Licensing Board in Oklahoma did not recognize the results of Part II. As Petitioner explains it, based upon his understanding of the circumstances, that state had revised its laws pertaining to licensure of engineers in 1961. In 1960, to his understanding, those changes were in the draft form concerning the legislation. The changes that were brought about in 1961 required that a candidate for licensure have four years of experience before he or she would be able to stand a mandatory principle and practices Part II portion of an examination process. Because Petitioner had not gained four years experience before standing examination on principles and practices Part II the licensing authority in Oklahoma removed the reference to Petitioner's successful completion of the principles and practices Part II portion of the examination. Moreover it does not appear that candidates for licensure as professional engineers when Petitioner received his certificate of registration as a professional engineer granted by the State of Oklahoma on May 13, 1960 had to stand an examination before receiving that license. Prior to the receipt of registration as a professional engineer and following his graduation from the University of Oklahoma, Petitioner had held the Engineer-in-Training License. Petitioner had not received his professional engineer's registration in 1956 because the State of Oklahoma required a minimum three years of professional experience after graduation from engineering school before it would grant that registration. The verification of registration form that was completed by the Oklahoma Board of Engineering indicated that the Petitioner's registration as a professional engineer was based upon five years of formal education in his engineering course work, an examination associated with a license as Engineer- in-Training, and three years of work experience beyond that five year course. Records of the licensing authority in Oklahoma have not shown the Petitioner as having taken a professional engineer's examination as contrasted with his examination for an Engineer-in-Training license. Further, Petitioner is without tangible evidence that he stood the principles and practices portion Part II, as part of a professional engineer's examination in Oklahoma. After graduation, Petitioner worked for Continental Oil Company, Poncaca City, Oklahoma from June, 1956 until October, 1957 in a position whose title was automotive engineer. In this employment he designed special equipment for different departments within that company. This included all terrain vehicles for seismograph work and heavy duty trucks to haul drilling rigs. It involved design of seismographs and a shaker that was intended to replace drilling a hole and shooting dynamite charges. From October, 1957 until February, 1958 Petitioner worked as a sales engineer for Parkersburg Refrigeration and Reel Company in Oklahoma City, Oklahoma. This work was involved with a pumping unit that had gear systems in it. The pump had to be designed economically. The pump had to be designed to withstand a certain amount of torque. If a system was too large for a well then it cost the customer money. If it was too small it would strip the gears. A piece of equipment also involved beams. It included a sucker rod strain that had to be sized so that it did not overly stretch as the pump lifted. There was a concern that the design be such that it would not achieve harmonic balance causing a bungee cord effect. This experience involved picking pump sizes or specific pieces of equipment and matching those with the client's or customer's needs. One had to be careful about the sucker rod size in that the rod was introduced two miles into the earth to lift oil. From January, 1959 until July, 1960 Petitioner worked at the Oklahoma City Air Defense Station in Oklahoma City, Oklahoma in a position entitled mechanical engineer (general). This work involved designing a maintenance program for mechanical equipment in diesel electric generating plants. From August, 1960 until October, 1963 Petitioner held the position of employment as a mechanical engineer (diesel). This was in association with the headquarters of the Air Defense Command, Ent Air Force Base, Colorado Springs, Colorado. In this assignment he worked in 138 different stations as opposed to 11 stations in the prior position he held. In addition to working to design maintenance programs, he also was involved in work on overhauls by designing a program for determining when overhauls were necessary on the diesel electric generators. Petitioner was also a trouble shooter. If there was trouble with a unit, others would send the Petitioner to the station and he would analyze the problem and recommend necessary corrective action. Petitioner prepared programs and told mechanics what to do in the way of maintenance. From November, 1963 until November, 1985 Petitioner was employed as a consulting engineer and general contractor for Jack Stout Engineering and Construction Company in Yukon, Oklahoma. The engineering portion of this enterprise had to do with designs of varying kinds. As to things built by his company, this included buildings, building foundations, and building trusses. It also included electrical systems, plumbing systems and mechanical systems. Those latter items were required to be done by a professional engineer in Oklahoma during the period in question, in those instances involving public access whether into private or public buildings. During Petitioner's association with Jack Stout Engineering and Construction Company, approximately 50% of his time was spent as a consulting engineer and the other 50% as a general contractor. In the period November, 1985 until August, 1989, Petitioner was still associated with Jack Stout Engineering and Construction Company as a consulting engineer and contractor; however, he had moved to Port Mansfield, Texas. At this point Petitioner did some professional engineering work in Oklahoma even though he was residing in Texas. Petitioner indicated that he obviously did not do as much work as a professional engineer while residing in Texas. The engineering work that he did in Texas proper was not of a professional level. The work in Texas involved redesigning boats. From the period August, 1989 until April, 1991, Petitioner worked as a real estate salesman for Heritage Realty in Tallahassee, Florida. He has done some professional engineering work in Oklahoma while residing in Florida, but not as much as when he lived in Oklahoma. Dr. Robert Kersen who holds a baccalaureate degree, masters degree, and doctorate in civil engineering, testified concerning which activities constitute the practice of engineering. Among the positions which Dr. Kersen has held which would give him insight in commenting on engineering practice was that of Dean of the Engineering School at the University of Central Florida. He was dean for approximately 20 years. This gave him the occasion to evaluate individuals concerning their engineering backgrounds. In addition he served on the State Board of Engineers in Florida for about 6 years and was on the application committee which allowed him to review candidate files for licensure that came before the State Board of Engineers. In particular he has had the opportunity to investigate background experience of those candidates. Given his credentials, Dr. Kersen was qualified as an expert to state his opinion, to comment on the nature of activities that would constitute the practice of engineering. As established by Dr. Kersen, the prime function of an engineer is to devise the system, components, structure, machine, or whatever item, according to sound engineering principles and standards of practice. By contrast, contractors are responsible for building, constructing, and erecting structures according to the engineer's plan. Notwithstanding the distinction between the activities of engineers and contractors, it has been the custom and practice of the Board of Professional Engineers in Florida, to Dr. Kersen's knowledge, to accept contracting experience in lieu of engineering experience in satisfying engineering experience requirements for licensure. That experience in contracting is discounted by 50%. This concept is reasonable and is accepted. Applied to Petitioner's experience while working with Jack Stout Engineering and Construction Company in Yukon, Oklahoma in the period November, 1963 until November, 1985, Petitioner would be entitled to 11 years credit as an engineer and five and one-half years credit as a contractor, for a total of 16 1/2 years in that work cycle. This experience when added to the other positions which Petitioner held from June, 1956 until November, 1963 gives Petitioner approximately 24 years of continuing engineering experience. The period beyond November, 1985 until August, 1989 constituting approximately three and one-half years additional experience is unclear concerning which portion was associated with professional engineering, contracting and engineering practice not of a professional level. In any event, even should the Petitioner be credited with that latter period, the total amount of continuous work as an engineer from June, 1956 until August, 1989 would be slightly in excess of 27 1/2 years. Petitioner's explanation of the period of August, 1989 through April, 1991 did not clearly identify the portion of his time which was spent in engineering practice as opposed to what appears to be his principal employment as a real estate salesman and he is not credited for that period.
Recommendation Upon consideration of the facts found and the conclusions of law reached it RECOMMENDED: That a Final Order be entered which denies the application for licensure by endorsement. DONE and ORDERED this 4th day of November, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 4th day of November, 1992. APPENDIX CASE NO. 92-3635 The following discussion is given concerning the fact finding proposed by the parties: Petitioner's Proposed Findings of Fact. Petitioners facts were presented together with his legal argument in such a manner as to not allow specific discussion concerning those proposed facts. Respondent's Proposed Findings of Fact. Paragraphs 1 through 4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 14 are subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute. Paragraphs 16 through 18 are subordinate to facts found. Paragraph 19 does not change the impression of the work which Petitioner did which has been credited as engineering work. Paragraph 20 is not necessary to the resolution of the dispute. COPIES FURNISHED: Jack L. Stout No. 229 2775 Jewel Drive Tallahassee, FL 32310 and 916 North Gadsden Street Tallahassee, FL 32301 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, FL 32399-1050 Angel Gonzalez, Executive Director Department of Professional Regulation Board of Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Respondent is a duly-licensed professional engineer in the State of Florida having been issued License No. PE0035663. The Petitioner is an agency of the State of Florida charged, in pertinent part, with interpreting, enforcing, and regulating concerning the licensure and professional practice standards for professional engineers in the State of Florida embodied in Chapter 471, Florida Statutes. The Respondent practices engineering as Dr. S.K. Nayak & Associates, Regulatory, Environmental and Civil Engineering Consultants. That engineering firm is not licensed as a professional engineering firm in the State of Florida. On September 20, 1988, the permit to the JNC by the Department for its domestic waste-water treatment and disposal system expired. Thereafter, on June 16, 1989, an application to operate such a system was submitted to the Department by Mr. Cordes on behalf of the JNC. The Respondent was the professional engineer of record depicted on that application. On or about July 14, 1989, the Department issued a notice of permit denial concerning that application and cited six deficiencies as the basis for the denial. The notice of permit denial identified the JNC's reclaimed water distribution system as not being designed in accordance with sound engineering principles and practices, as delineated in Rule 17-6.070(1)(a), Florida Administrative Code, and the design as not being provided in the manner required by Rule 17-610.414, Florida Administrative Code. The permit applicant was thus advised by the notice of permit denial that some modifications for the water distribution and storage system would have to be undertaken and completed in order for permitting to be effected. Thereafter, on or about January 30, 1990, the Respondent submitted a design statement for a reclaimed water disposal system to the Department. The design must conform to certain criteria enunciated in Chapter 17-610, Florida Administrative Code. The design for such a system must be accompanied with an engineering report to document geohydrological conditions at the site and to document that a ground water mounding analysis has been performed for the percolation pond systems, in order to verify that the systems will perform satisfactorily under the pertinent provisions of Chapter 17-610, Florida Administrative Code. The Department considered the design submitted by the Respondent to constitute the necessary design for the application for a new operating permit for the JNC. Expert witness Bryant Marshall's testimony establishes clearly that the creation of the design and its submittal to the Department constitutes a specific type of engineering practice and moreover that that sort of design requires a specific type of geotechnical and geohydrological engineering experience. Upon reviewing the design statement submitted by the Respondent, the Department advised Mr. Cordes of numerous items of incompleteness which would need to be addressed before an evaluation of the proposal, including design, could be performed. Mr. Cordes was informed of this by letter from the Department of February 23, 1990, which was copied to the Respondent. See, Exhibit B in evidence. Upon reviewing the design submitted, the Department determined that, because of the limited data and analyses and absence of calculations in that design document, that the Respondent had not demonstrated that he was qualified to perform such geotechnical and hydrogeological engineering, with pertinent calculations and depictions as was required for a project such as that proposed, nor had that type of required engineering work been done. Ultimately, therefore, it filed a complaint against the licensure of the Respondent with the Petitioner licensing agency. On April 9, 1990, the Respondent submitted a signed and sealed withdrawal of the design statement previously submitted to the Department. The Respondent contends that he never intended that the design statement originally submitted should constitute the final "as built" design for the water reclamation facility involved. Rather, he contends that it was intended by the Department, by himself, and by his client to be merely a preliminary or suggested design solely for purposes of negotiation concerning the permit denial and an attempt to work out a satisfactory arrangement with the Department in terms of the Department's conditions and requirements for design and construction, so that the proposed facility could be permitted. The Respondent contends that that was not the practice of engineering but, rather, submittal of a preliminary design statement which he claims the Department required of him. He thus submitted the design statement with the full understanding that it was not intended by him, or by the Department for that matter, to be a feasible final proposal or design and knowing that it was not up to standard or intended to be and knowing that it did not comply with certain applicable rules and regulations, he did not sign or seal it. Mr. Marshall, the expert witness put forward by the Petitioner, opined that the submission of substandard work, merely because another party has requested it for negotiating purposes, or for whatever reason, still is not acceptable practice for a licensed professional engineer. Merely because one is of the intent and opinion that submittal of the work will not be the final work product, by which the facility in question is to be built, is no excuse for not complying with proper standards of professional engineering practice. The Respondent's soil and ground water data was shown by Mr. Marshall to be inadequate because it did not provide for the necessary calculations which could indicate whether the performance of the system will actually meet the design criteria, given the geotechnical soil and hydrogeological conditions prevailing at the site, which were not adequately allowed for by their entry into proper calculations which should have been performed by the Respondent. The Respondent's professional history moreover does not reflect adequate geotechnical or hydrogeological experience and training necessary for a project such as the JNC at issue. It has been established by Mr. Marshall's testimony, which is adopted, that standards of practice were not followed because an appropriate subsurface exploration geotechnical investigation, laboratory soil testing, engineering analysis, and ground water mounding analysis was not performed. Even if the Respondent had adequate training in geotechnical and hydrogeological engineering, he promulgated a deficient engineering document in terms of this design, regardless of whether or not it was signed or sealed, because it constituted the practice of professional engineering and yet he failed to perform and to indicate on his design that the geotechnical and hydrogeological investigations required for such work had been performed. The document was based only on a review of available published information regarding surficial and sub-surficial soil conditions. No test borings were done in accordance with standard practice. The percolation testing performed by the Respondent was shown by Mr. Marshall to be inadequate under the circumstances of the project for which design was being considered. The proper geotechnical exploration, in keeping with standard engineering practice, would require the use of soil test borings to depths of 20 to 30 or perhaps 40 feet below ground surface. This would be necessary to properly characterize the aquifer and subsurface conditions and to evaluate the properties of the soil within that zone to determine what the actual hydraulic characteristics of the subsurface profiles would be. It would then be necessary to perform laboratory permeability testing on the soil samples from the various depths so as to properly characterize the aquifer performance or predicted aquifer performance for the entire depth zone to those significant depths. Just the top 18 or 20 inches of soil is not an adequate investigation. Further, the Respondent provided no documentation for his conclusions regarding established ground water movement, established surface water flow, and confirmed ground water table elevations. According to Mr. Marshall, it is safe to assume that surface water flow might be to the southeast given the site's topography and the fact that the ground slopes downward toward the southeast and generally toward the east, as well. However, the Respondent provided no documentation of any test borings or other site-specific geotechnical investigation work done to verify anything about the direction of ground water flow nor the ground water table elevation. Apparently the Respondent relied upon general information contained in a soil survey of Jefferson County but did not do site-specific investigatory work, in keeping with standard engineering practice, which would allow him to make those types of conclusions in a legitimate fashion. Mr. Marshall thus opined and established that the submission of the work by the Respondent was substandard work and that it is not justifiable engineering practice to submit such substandard engineering work, even if it is done at the request of another party with an understanding between the engineer and the other party and the client that this work is merely to be a preliminary design for purposes of negotiation between the regulator and the client. It is also no excuse for such substandard engineering practice that the Respondent submitted it without it being signed or sealed in his capacity as an engineer. The lack of the signing or sealing does not render it immune from having to comport with standard, acceptable engineering practice. Accordingly, it has been demonstrated that the Respondent was negligent in the practice of engineering in these particulars, with regard to his participation and design concerning the JNC project. Because the Respondent intended that this be a preliminary submittal, solely for the purposes of negotiation between himself, his client, and the regulatory agency and did not intend that it be a final design to be built in an attempt to comply with regulatory requirements, he has not been shown to have intentionally committed misconduct in the practice of engineering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Professional Engineers finding the Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, to the extent that he is guilty of negligence in the practice of engineering and that he be issued a reprimand and that his licensure be placed in probationary status for a period of one year with reasonable terms to be decided by the Board, including the requirement of continuing professional education in the area of compliance with appropriate professional practice standards. DONE AND ENTERED this 4th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7994 Petitioner's Proposed Findings of Fact 1-23. Accepted, to the extent they are consistent with the findings of fact of the Hearing Officer and otherwise as subordinate to the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not being entirely in accordance with the greater weight of the evidence; to some extent, irrelevant; and to some extent, as being legal conclusions and not proposed findings of fact. Rejected, as not being entirely in accordance with the greater weight of the evidence, as constituting an incorrect conclusion of law, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 4-5. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, and being an incorrect conclusion of law. 6. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, as being an incorrect conclusion of law, and to some extent, irrelevant. COPIES FURNISHED: Anthony Cammarata, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Shrinivas K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0755
Findings Of Fact Petitioner is an unsuccessful candidate for the General Contractor Examination given in February, 1990, (the "examination"). Petitioner passed part three but failed parts one and two. Petitioner subsequently passed part one in June, 1990. Petitioner received a score of 69 percent on part two of the examination and needs only one point to pass part two and the entire examination. 1/ Question 37 is worth one point. Respondent gave credit for answer "(D) 10" in response to question 37. Petitioner selected answer "(A) 0" in response to question 37. Question 37 requires a candidate to apply Section 713.12, Florida Statutes, to the facts provided in the stem to question 37. Section 713.12, in relevant part, gives a spouse 10 days after learning of a contract to object to the signing of a contract by his or her spouse. Question 37 requires a candidate to determine how many days a wife has to object to a contract entered into by a contractor and both spouses but signed only by her husband with her knowledge. Question 37 is not ambiguous. There is only one correct response to the question challenged by Petitioner. The correct response to the question is answer "(D) 10." Petitioner did not choose the correct answer for question 37. The wife is not deemed to waive any objection she has if she does not make it at the time of the signing. The time that the wife learned of the contract and its signing is clear and unambiguous from the facts in the stem of the question. The contract was entered into by both the husband and wife and was signed by the husband with the wife's knowledge. The ordinary and plain meaning of the term "with" connotes "at the same time as." The only type of property that is reasonably contemplated in question 37 is real property. Of the 649 candidates who took the examination, 81 percent selected answer "(D) 10." Of the candidates who scored in the upper 27 percent on the examination, 92 percent selected answer "(D) 10." Only two percent of the candidates selected answer "(A) 0."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to question 37. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of April 1991. DANIEL MANRY Hearing Officer Division of Administration Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing on September 28, 1987 and October 6, 1987, the following relevant facts are found: Respondent, White Construction Company, Inc. (WHITE) is a contractor engaged in the highway construction industry and holds a current Certificate of Qualification with the Petitioner, Florida Department of Transportation (FDOT). The Certificate of Qualification entitles WHITE to bid on construction contracts to be awarded by FDOT. WHITE has been in the road construction business since 1950 and has performed several hundred road construction contracts of FDOT amounting to some $400,000,000.00. On May 28, 1986, FDOT received bids on State Project Nos. 61080-3522 and 61080-3523 (Project). FDOT subsequently awarded the contract to WHITE for performance of the work. The Project consisted of improvement to drainage structures, resurfacing of approximately 1.5 miles of roadway which included milling the existing asphalt and replacing it with a new structural course, and placing incidental handrail and roadway markings. The contract specifications called for the completion of the Project in ninety-five (95) calendar days. Calendars days are calculated by multiplying the number of workdays required to complete the work by a coefficient of 1.825. The coefficient of 1.825 is derived by dividing the number of days in a normal year (365) by the number of actual working days in a year (200). WHITE was awarded the contract on the Project on July 11, 1986 and was required to return the executed contract within twenty (20) days or be penalized one (1) day for each calendar day WHITE was late in returning the executed contract. WHITE returned the executed contract on August 5, 1986 or twenty-five (25) days after being awarded the contract. As a result of returning the executed contract late, the number of days to complete the Project was reduced from ninety-five (95) to ninety (90) days. Certain utilities belonging to the City of Chipley were in conflict with the drainage work to be performed by WHITE under the contract, but were to be removed prior to WHITE starting work on the Project. As required, a Pre-construction Conference was held on August 7, 1986 concerning the Project, with representatives from FDOT, WHITE, WHITE'S subcontractor and Southern Bell present. The City of Chipley did not attend the Pre-construction Conference. One of the items discussed was the relocation of the City of Chipley's utilities that were in conflict with the drainage work to be performed by WHITE. At the time of the conference, it was not known if the utilities in conflict with the project had been relocated by the City of Chipley. On August 26, 1986, WHITE'S Work Progress Schedule Chart was approved. The chart indicated that certain types of work would be performed concurrently, such as drainage structure work and subgrade base and surface work (milling). At the time the chart was submitted, WHITE understood that the utility conflicts would be relocated prior to it commencing work, and had no knowledge of other utility conflicts discovered at a later time. On November 3, 1986, WHITE moved onto the Project site and commenced work. The ninety (90) days for completion of the Project began to run on that date. On November 3, 1986 when WHITE moved onto the Project site, the known utility conflicts had not be relocated. The first day of contract time WHITE began clearing and grubbing, and on the second through the fifth day of contract time (November 4 - 7, 1986) WHITE performed surveying work in preparation for the next controlling item of work - drainage structures. On the sixth day of contract time (November 8, 1986) the known utility conflicts had not been relocated by the City of Chipley as was contemplated by the contract. Except in a piecemeal fashion, which would not be economical, WHITE was unable to proceed to the next controlling item of work after the drainage structures, the milling of the asphalt, until the utility conflicts were relocated and the cross drains installed. On November 14, 1986, the 12th day of contract time, WHITE's subcontractor commenced work on the Project and from this date until January 12, 1987 worked twenty-seven (27) days on the Project. On November 20, 1986, the 18th day of contract time, WHITE began unloading pipe, but was able to work only two (2) hours due to rain. On November 21, 1986, the 19th day of contract time, WHITE completed unloading the pipe and began to lay pipe, but the discovery of an unknown utility conflict delayed laying pipe until December 16, 1986, the 37th day of contract time. On November 22, 1986, the 20th day of contract time, WHITE moved off the Project, and did not return until December 16, 1986, the 37th day of contract time. WHITE worked the 16th and 17th of December, 1986, and on December 18, 1986, the 39th day of contract time, another utility conflict was discovered. WHITE performed no further work on the Project until January 12, 1987, when the utility conflict was resolved. WHITE requested and was granted vacation time during November 27 through December 3, 1986 and December 24 through 28, 1986, and contract time was stopped for twelve (12) days. WHITE, through no fault of its own, was unable to work on a controlling item of work for thirty-six (36) contract days which is equal to fifty (50) calendar days. Converting contract days to calendar days is accomplished by multiplying the contract days by the coefficient of 1.4. Using this coefficient takes into consideration the weekends (365-102 = 261. 365 divided by 261 = 1.4) The subcontracted portion of the Project was eleven per cent (11 percent). Converting the twenty-seven (27) days worked by the subcontractor during this period to days chargeable to WHITE is accomplished by multiplying 11 percent times 27 days which equals 2.97 or 3.0 days. By letter dated January 29, 1987, WHITE requested an extension of time of eighty-one (81) days, and as a basis for the extension alleged delays caused by rain or conditions related to rain, utility conflicts and conditions due to natural springs adjacent to the Project site. The extension request was reviewed first by the Assistant Resident Engineer on the Project who recommended to the Resident Engineer the granting of a thirty-one (31) day extension which was calculated by granting thirty-five (35) days for utility delays and subtracting four (4) days for time attributable to work done by the subcontractor during this period, but denying any time for delay caused by rain or conditions related to rain or conditions related to the natural springs adjacent to the Project site. After reviewing the recommendation of the Assistant Resident Engineer, the Resident Engineer recommended to the District Construction Engineer that only a twenty (20) day extension be granted based on twenty-nine (29) days being affected and subtracting nine (9) days for work accomplished by the sub and prime contractor during this period. The District Construction Engineer agreed with the State Construction Engineer, and recommended to the State Construction Engineer that a twenty-eight (28) day extension be granted. Calculated by multiplying the twenty (20) day extension recommended by the Resident Engineer times the coefficient of 1.4 to convert to calendar days of contract time. The State Construction Engineer concluded that forty (40) days of contract time had been affected, and without further explanation granted forty (40) calendar days. In none of the calculations did the engineers take into account the delays caused by FDOT's failure to require the City of Chipley to timely relocate the known utility conflicts prior to WHITE commencing work on the Project, thereby preventing WHITE from proceeding in an orderly sequence with the work as contemplated in its Work Progress Schedule Chart without any excuse for delay until the unknown utility conflicts were discovered on November 21, 1986. Likewise, without the unknown utility conflicts, WHITE could have worked the job in an orderly sequence (concurrently working on drainage structures and the milling aspect). However, not knowing where the next utility conflict might arise, WHITE was precluded from milling asphalt while working on drainage structures without subjecting itself to additional work and costs. On this basis, WHITE should have been granted a forty-seven (47) day extension (50 days for utility delays minus 3 days for work accomplished by subcontractor). This extension is arrived at by allowing WHITE thirty-six (36) contract days during the period of November 8, 1986 through January 12, 1987 while WHITE was unable to perform work on a controlling item of work under the contract, and converting those days to calendar days (36 X 1.4 = 50) and subtracting the three (3) days of work performed by the subcontractor during this period and chargeable to WHITE (50 minus 3 = 47). By letter dated March 19, 1987, WHITE submitted a second time extension request for fifty (50) days. The request covered a period of time from January 12, 1987, through March 8, 1987, a period of eight (8) weeks. The reasons for the request were: delays due to rain and corresponding wet conditions; delays due to utility conflicts; and delays due to conditions caused by natural springs adjacent to Project site. FDOT's personnel performed its customary analysis of WHITE's second- time extension request, and granted a time extension of eleven (11) calendar days. FDOT's review revealed that WHITE had been delayed nine (9) days due to weather, two (2) days due to utility conflicts, and no delays caused by the natural springs adjacent to Project site. A review of the daily diaries reveal that work on the Project by WHITE was affected twenty-two (22) days by rain or conditions caused by rain and was affected five (5) days by utility conflicts. There were nine (9) days when rain stopped work on the Project, (1/15, 16, 21/87; 2/2, 5, 24, 25, 26, 27/87) but since approximately one (1) per week is accounted for in the coefficient used to calculate the calendar days of the contract, only one (1) day should be allowed. There were thirteen (13) days on which work on the Project was affected by conditions caused by rain. WHITE was dewatering due to excessive rainfall or natural springs adjacent to the Project site as follows: 1/19/87 - 1 day; 1/20/87 - 1/2 day; 1/22/87 - 1 day; 1/23/87 - 1/2 day; 1/26/87 - 3 hours; 1/27/87 - 5 hours; 1/28, 29, 30/87 - 3 hours each day; 2/18/87 - 2 hours; 2/23/87 - 0.7 of a day; and 3/3/87 - 1 day. On February 6, 1987, WHITE lost all day because it was too wet to work. The above calculates into eight and one- half (8 1/2) days of contract time. WHITE's work on the Project was affected on five (5) days due to utility conflicts. They were as follows: 1/27/87 - 2 hours; 2/13/87 - 2 hours; 2/14/87 - 2 hours; 3/3/87 - 3 hours and; 3/4/87 - 6 hours. This calculates into two (2) contract days. It is apparent from the calculations of FDOT that WHITE was not given credit for certain days when the controlling item of work was delayed due to rain or conditions due to rain. The correct amount of contract time should have been eleven and one-half (11 1/2) days which, when converted to calendar days, equals sixteen (16) days. During the course of the work on the Project, a "rutting" problem was encountered in a section of the road involved in the Project whereby the road was gradually sinking. The "rutting" was apparently caused from improper backfilling of a trench which had been excavated earlier by a contractor performing work for the City of Chipley. The "rutting" was not the result of any work performed by WHITE on the Project. Negotiations began between FDOT and WHITE regarding WHITE correcting the "rutting" problem on March 6, 1987, and continued until April 13, 1987, at which time FDOT and WHITE entered into a Supplemental Agreement whereby WHITE agreed to correct the "rutting" problem for a stated amount, and FDOT granted WHITE thirty-five (35) additional calendar contract days. It was also understood that WHITE would be allowed time for material acquisition. On April 23, 1987, WHITE was advised by FDOT that no additional contract time after April 27, 1987 would be considered. On April 27, 1987, WHITE began work on the "rutting" problem, and completed the work on the "rutting" problem on May 13, 1987. On May 18, 1987, FDOT issued WHITE a Preliminary Notice of Delinquency notifying WHITE that the progress of work on the Project was considered by FDOT to be unsatisfactory. On June 3, 1987, in response to FDOT's Preliminary Notice, WHITE submitted a written time extension request for the period of March 8, 1987 through May 24, 1987. The time requested was one hundred and twenty-five (125) days, and the reasons were: delays caused by rain and corresponding set conditions, settlement of "rutting" problems, and; a request for reconsideration of the days denied in the first two time extension requests. FDOT granted nineteen (19) calendar days of contract time for the negotiations of the "rutting" problem, and denied the balance of time requested. The nineteen (19) days were derived by calculating the number of days involved in negotiation, acquiring material and performing the work, and subtracting the thirty-five (35) days granted under the Supplemental Agreement. During the period of time from March 20, 1987 through April 27, 1987, thirty-eight (38) calendar days of contract time, WHITE was precluded from working on any controlling item of work on the Project due to negotiations on the "rutting" problem and acquisition of materials to correct the "rutting" problem, and these days were not considered by FDOT in making its decision to grant the work in correcting the "rutting" problem under the Supplemental Agreement. Therefore, WHITE is entitled to the full thirty-eight (38) calendar days of contract or an additional nineteen (19) calendar days of contract time than was granted by FDOT. Because problems arose in securing aluminum handrails that WHITE had no control over, FDOT suspended time on the Project from July 4, 1987 through August 23, 1987. FDOT issued to WHITE a Final Notice of Delinquency by telegram on August 7, 1987, confirmed by a certified letter of the same date, informing WHITE that the notice would become final and WHITE's qualification to bid on FDOT projects would be suspended unless WHITE requested a hearing within ten (10) days. Pursuant to this notice, WHITE requested an administrative hearing. On October 19, 1987, FDOT granted WHITE an additional five (5) days of contract time for completion of the Project by Supplemental Agreement. Based on FDOT's calculations, the contract time expired on May 28, 1987, the 195th day of contract time (the original 95 days, minus 5 days penalty, plus 40, 11 and 19 days of extension, plus 35 days under Supplemental Agreement). Based on the findings herein, the contract time expired on July 3, 1987, the 231st day of contract time (the original 95 days, minus 5 days penalty, plus 47, 16 and 38 days of extensions, plus 35 and 5 days under the Supplemental Agreements). On August 25, 1987, the 233rd day of contract time, the subcontractor began to erect the handrails and completed erecting the handrail on August 27, 1987, the 235th day of contract time. The Project was conditionally accepted by FDOT on August 27, 1987, the 235th day of contract time, and time stopped running on the contract. WHITE was four (4) days delinquent in completing the contract which was the result of the penalty imposed for failure to timely return the executed contract. FDOT's inability to resolve the known and unknown utility conflicts and the rutting problem timely resulted in WHITE not being able to proceed with the work on the Project in an orderly sequence as anticipated by the Work Progress Schedule Chart. This required WHITE to move on and off the Project to work on other projects and resulted in the inefficient use of the allowable contract time, and should be considered when determining delinquency. There was insufficient evidence to show that WHITE did not have sufficient equipment, personnel, or finances to timely complete the job.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Department of Transportation enter a Final Order finding the Petitioner, White Construction Company, Inc., not delinquent in its prosecution of the work on Job Nos. 61080-3522 and 61080-3523 and rescind its final notice of delinquency issued on August 7, 1987. RESPECTFULLY SUBMITTED and ENTERED this 21st day of December, 1987 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3811 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 1. 3. The first sentence is adopted in Finding of Fact 3. The balance of paragraph 3, although supported by creditable testimony in the record is neither material nor relevant since the project could have been completed timely without the utility delays, and adjustment of contract time has allowed for these delays. 4. The first and third sentences of paragraph 4 are adopted in Finding of Fact 4. The balance of paragraph 4 is rejected as not being material or relevant. 5. Adopted in Finding of Fact 9. 6.-9. Adopted in Findings of Fact 9-14 and 16 but clarified to make statements of fact rather than statements of witnesses' testimony as was sometime the case in Petitioner's findings set forth in paragraphs 6-9. 10.-11. Adopted in Findings of Fact 28, 29, 31 and 32 but clarified to make statements of fact rather than statements of witnesses' testimony as was sometimes the case in Petitioner's findings set forth in paragraphs 10 and 11, and also rejecting certain portions as not being material or relevant. Rejected as not being relevant or material. Rejected as not being relevant or material, especially since it was WHITE's responsibility to obtain the handrail timely in the first place. Adopted in Finding of Fact 33 but clarified, rejecting that portion concerning the ten days between June 26- July 3 and August 24 and 25, 1987 as being no fault of WHITE since it was WHITE's responsibility in the first place. The first sentence is adopted in Finding of Fact 31. The balance of paragraph 15 is rejected as not supported by substantial competent evidence in the record. Adopted in Findings of Fact 41 and 42. Specific Rulings on Proposed Findings of Fact Submit by Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4 as clarified. The first three sentences are adopted in Findings of Fact 7 and 8. The balance of paragraph 5 is rejected as not being material or relevant. Adopted in Findings of Fact 9-12. Adopted in Findings of Fact 13 and 14 but clarified. Adopted in Finding of Fact 15. Adopted in Findings of Fact 11 and 13 but clarified. Adopted in Findings of Fact 11, 14 and 15 but clarified. Adopted in Finding of Fact 14. Adopted in Finding of Fact 18 but clarified. 13.-14. Adopted in Findings of Fact 19-23 but clarified. Adopted in Finding of Fact 24 but clarified. Adopted in Findings of Fact 25-27 but clarified. Adopted in Finding of Fact 28 but clarified. Adopted in Finding of Fact 29 but clarified. Adopted in Findings of Fact 29 and 32 but clarified. Rejected as not being material or relevant. Adopted in Finding of Fact 36 but clarified. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 31 but clarified. Adopted in Finding of Fact 34. Adopted in Finding of Fact 31. Adopted in Finding of Fact 39. Adopted in Finding of Fact 34. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, Mail Station-58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 =================================================================
The Issue The issue is whether Petitioner's applications for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for certifications as a plumbing inspector and electrical inspector. The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of plumbing and electrical inspectors, pursuant to Chapter 468, Florida Statutes. Petitioner previously received provisional certification to perform plumbing and electrical inspections as a result of the Board’s failure to take timely action on Petitioner’s applications for provisional licenses. He is currently employed with the City of Deland as a commercial and residential inspector and has been employed there since September 17, 2007. Accompanying his applications was a statement of “experience history”, provided on a Board form. The experience history listed four places of employment covering four periods of time: 1976 to 1986: Job Foreman for Ron Abel Contracting; 2001 to 2005: Standard Inspector for the City of Winter Springs; 2005 to 2007: Standard Inspector for GFA International; and 2007 to present: Standard Inspector for the City of Deland. Accompanying his applications were three affidavits relating to the 1976-1986 employment with Ron Abel Contracting; two affidavits relating to his 2001-2005 employment with the City of Winter Springs; one affidavit relating to his 2005-2007 employment with GFA International; and one affidavit regarding Petitioner’s employment with the City of Deland from 2007 to present. The first affidavit relating to the 1976 to 1986 period of time was from Daniel Kittinger, a licensed general contractor, who attests that when working in his father’s construction business, Petitioner “assisted in the home building process, acted as foreman to oversee [sic] the subcontracting was done in a timely manner and that specifications met code requirements for residential buildings.” The second affidavit for the 1976 to 1986 period was from Carleen Abel, Vice President of Ronald E. Abel Contracting, and states the following: Mr. Jay Abel is the son of the owner and worked as a field foreman from 1976-1986. During his tenure with Abel Contracting, Jay provided supervision of the field operation on overseeing trade contractors. His principle responsibilities included hands on supervision of framing, electrical, plumbing and HVAC sub-contractors for both residential and commercial work. He primarily was to assure that the jobs were properly constructed, completed on time and confirmed that the appropriate codes were satisfied. The third affidavit relating to 1976-1986 did not include the license number of the affiant. Therefore, it was not considered, and is not considered herein, as it does not comply with the statutory requirement that a licensed architect, engineer, contractor, or building code examiner affirm an applicant’s experience by affidavit. Regarding Petitioner’s employment with the City of Winter Springs, an affidavit was submitted by a person whose first name is David (last name begins with an “A” but is not legible) which states that Petitioner was employed as a residential inspector under the direction of Dennis Franklin and under supervision of a senior inspector. This affidavit referenced an attached affidavit of Dennis Franklin which states as follows: I have personal knowledge that Jay Abel worked as a residential inspector in Winter Springs during the time of his licensure as per Chapter 468 F.S. One affidavit was submitted relating to Petitioner’s work experience from 2005 to 2007. The affidavit of Jeffrey D. DeBoer states as follows: During Jay’s tenure at CFA International he performed inspections of 1 + 2 family dwellings and was in training to perform plan review of both mechanical, electrical and plumbing disciplines. This training was done under the supervision of other certified plans examiners for each discipline. The affidavit of Joseph R. Crum was submitted regarding Petitioner’s current employment with the City of Deland. It states in pertinent part as follows: Jay Abel is employed with the City of Deland as an inspector. He is required to perform inspections on commercial buildings and structures for Building, Electrical, Mechanical, Plumbing and gas installations. He is also required to perform inspections on Residential buildings and structures for all of the trades including, Building, Electrical, Mechanical, Plumbing and gas installations. Jay currently holds a standard one and two family dwelling inspector license #BN4928. He also holds provisional licenses as follows: Building #PBI 1573, Commercial Electrical: #PCE 651, Mechanical: #PMI 549 and Plumbing: #PPI 582. Having these licenses means he has met the qualifications for each and should be issued the appropriate license as he passes the individual exams.[1/] In addition to the affidavits submitted by Petitioner, Petitioner’s current supervisor testified at hearing. Matthew J. Adair is the chief building official with the City of Deland. He supervises all of the building division which includes code enforcement and building inspections personnel. He is familiar with the work performed by Petitioner in his current employment with the City of Deland. At hearing, Mr. Adair described Petitioner’s work: Jay is our commercial and residential inspector at this time. He does primarily commercial work for us. I’ve personally overseen the inspections that he conducts on a daily basis. . . [t]o include installation of electrical and plumbing systems in new commercial buildings, main distribution panels, underground electric, overhead, receptacles, feeders. And on the plumbing side the same thing, water, sewer lines, undergrounds, sewer connections even back-load preventers. . . . He’s very competent. He knows the codes, but on top of just knowing the codes he knows how systems are supposed to be installed in the field. He is a competent inspector.. . . He is one of my most valued employees.[2/] Petitioner also submitted an “Educational History” which represents that he holds an associate of arts degree in business. Further, the “Examination History” portion of the form represents that he passed the Florida Principles and Practice Examination. The Board has created an application review committee (committee), consisting of three members of the Board, to review all applications and make a recommendation to the Board as to whether each application should be approved or denied. Dennis Franklin is a member of the Board and the review committee. According to Mr. Franklin, the committee reviews the applications, and makes a determination as to whether an application should be approved or denied. The determination is made by majority vote of the committee. The decision of the committee is then presented to the Board which ratifies the committee’s decision at a Board meeting. The Board generally does not otherwise independently review the applications, but simply ratifies the decision of the committee. The committee met at some point prior to the Board’s April 10, 2009, meeting. The committee reviewed Petitioner’s applications and determined that his applications should be denied. The decision of the committee was ratified by the full Board on April 10, 2009. Robert McCormick is Chairman of the Board and is a member of the committee. According to Mr. McCormick, the Board interprets the statutory requirement of five years’ combined experience to mean that an applicant must demonstrate an equivalent of five years’ full-time experience. Mr. McCormick applied what he described as a “rule-of-thumb,” in which he divided five years into an average of full-time work hours of 2,000 work hours per year and 10,000 work hours for a five-year period of employment. Mr. McCormick determined that Petitioner’s application did not establish that he had worked five years full-time in either the electrical or plumbing trade and, therefore, determined that his applications should be denied. Gary Hiatt is the chief building official of Flagler County and is responsible for the day-to-day management of plumbing and electrical inspectors in that county. He reviewed Petitioner’s applications and is of the opinion that Petitioner “has demonstrated through his background in contracting and licensure as well as his educational background to meet the requirements to be able to sit for that examination.”
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered granting Petitioner's applications for standard certification as a plumbing and electrical inspector. DONE AND ENTERED this 3rd day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
The Issue Whether Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this complaint, the Respondent, Joseph Marcelin, was a certified residential contractor, license number CR C028352. Respondent’s place of business and residence are in Dade County, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed contractors. On May 14, 1988, the Construction Industry Licensing Board entered a final order approving a settlement stipulation regarding Case no. 74860 against this Respondent. This final order directed Respondent to adhere to and abide by all of the terms and conditions of the stipulation. The stipulation required the Respondent to not violate the provisions in Chapters 455 and 489, Florida Statutes, in the future; required Respondent to honor a settlement in a civil matter; required Respondent to pay a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and required Respondent to affirmatively demonstrate compliance with the stipulation in order to have his license reinstated. A second final order entered by the Board on May 14, 1988, approved a settlement stipulation regarding Case no. 77499. This final order also directed Respondent to comply with the stipulation applicable to that case. In Case no. 77499, the stipulation required Respondent to abide by a civil settlement; imposed a fine in the amount of $500.00; suspended Respondent’s license for thirty days; and placed the burden on Respondent to demonstrate he had met the terms of the stipulation. As to both cases referenced above, Respondent admitted the allegations of the administrative complaints which, in pertinent part, claimed Respondent had assisted an unlicensed person or entity to perform contracting services thereby aiding and abetting an unlicensed person to evade the provisions of Chapter 489, Florida Statutes. On April 2, 1993, Respondent executed a certification change of status form which was submitted to the Department. Such form was completed for the purpose of qualifying as an individual for licensure and sought to reinstate a delinquent license or change from inactive to active. In the course of completing the change of status form Respondent was required to answer a series of questions by checking either the “yes” or “no” column. In response to the question as to whether Respondent had “been charged with or convicted of acting as a contractor without a license, or if licensed as a contractor in this state or any other state, had a disciplinary action (including probation, fine or reprimand) against such license by a state, county or municipality?,” he answered “no.” Such answer was false. Further such answer was made under with the following affirmation: I affirm that these statements are true and correct and I recognize that providing false information may result in a FINE, SUSPENSION, OR REVOCATION of my contractor’s license. [Emphasis in original.] Thereafter, the Department notified the Respondent that his license would not be issued as he had failed to demonstrate satisfaction of a civil judgment and had not submitted an explanation of the disciplinary action from 1988. Respondent eventually resolved issues of licensure with the Department and, on September 15, 1993, was authorized to practice contracting. Prior to his license being reinstated, Respondent performed the following: on April 7, 1993, Respondent obtained a building permit for construction work at the home of Eduardo Bovea. This permit, no. 93181501, indicated Respondent as the contractor of record for the project. On the permit application Respondent represented himself as the licensed building contractor for the Bovea project to the Metropolitan Dade County building and zoning department. Respondent did not have a contract with Bovea for the construction work to be performed on the Bovea home. In fact, the contract was between Bovea and Lou Greene Construction. The Boveas paid monies to Rodney Salnave, who claimed to be a representative for Lou Greene Construction. Rodney Salnave was not Respondent’s employee, and was not licensed as a contractor. The Respondent did not talk to the Boveas regarding the contract, the scope of the work to be done, or the contract price for the work. All discussions regarding the work at their home (and payments for same) were between Rodney Salnave and the Boveas. The permit for the Bovea project represented the amount of the work to be $2,000.00. In fact, the contract price for the work was $4,500.00. Respondent misrepresented the value of the work for the Bovea project. As of September 26, 1993, Respondent admitted he was involved with seventeen contracting jobs. Just eleven days after having his license reinstated, and while being employed in a full-time (8:00 a.m. to 5:00 p.m.) job with Dade County, Respondent had contracting responsibility for seventeen jobs. In reality, Respondent had made a deal with an unlicensed person, Denis Joseph, to pull permits for him. The jobs were for persons who, in some instances, Respondent had never met. For example, Mr. Joseph pulled a permit for work to be performed on a home owned by Ed Davis. The contract for the work was between Mr. Davis and a Mr. Sutton, an unlicensed contractor, but with the approval of Respondent, Mr. Joseph obtained a permit for the Davis job. A second job was for Bertha Joseph. In this instance, Mr. Joseph completed the permit application which Respondent signed thereby allowing Mr. Joseph to obtain the permit for the project. By signing the permit, Respondent represented himself to be the contractor for the job. In truth, the homeowner had contracted with Denis Joseph for the work to be done, but the project was completed by Emanuel Gideon, an unlicensed contractor. Respondent admitted receiving payments from Denis Joseph. Respondent admitted he was not actively involved with the Bertha Joseph project. In September, 1993, Eric Wardle, an investigator with the Dade County building and zoning department, interviewed Respondent regarding claims that he was obtaining permits for unlicensed contractors. According to Mr. Wardle, Respondent admitted he pulled permits for unlicensed contractors after Hurricane Andrew because they were trying to make a living. At hearing Respondent disputed the accuracy of Mr. Wardle’s investigation but admitted he would have told him “anything just for him to get away from me.” Respondent’s explanation at hearing was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board, enter a final order revoking Respondent’s contractor license and imposing an administrative fine in the amount of $8,500.00. DONE AND ENTERED this 16th day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Bruce M. Pasternack, Esquire Raymond L. Robinson, P.A. 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146 Joseph Marcelin 16561 Southwest 144th Court Miami, Florida 33177 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. Rodney Hurst, Executive Director Department of Business and Professional Regulation/CILB 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
