The Issue The issue is whether Respondent, Raylin Steel Erectors, Inc., employed persons in the State of Florida without obtaining workers' compensation coverage meeting the requirements of Chapter 440, Florida Statutes. If Respondent failed to obtain the required insurance, the subsequent issue is whether the penalty in the amount of $140,975.32, was properly assessed by Petitioner, Florida Department of Financial Services, Division of Workers' Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. The Division maintains records of all Notices of Coverage for workers' compensation reported to it. Insurers are required by law to report all Florida workers' compensation policies to the Division. Respondent is a Georgia corporation located in Adel, Georgia. Respondent is in the business of erecting pre- engineered metal buildings not exceeding two stories in height. Respondent, at all times involved in this matter, was engaged as a subcontractor to various general contractors for construction work performed in the State of Florida. All of the work performed in Florida for purposes of these proceedings was actually performed by sub-subcontractors of Respondent. Respondent testified that it did not use any of its own employees to perform work at any of the sites involved in these proceedings. Petitioner, based upon field interviews, determined that at least some of the employees working at Respondent's job site in Jacksonville, Florida, claimed to be employed by Respondent. Respondent had obtained workers' compensation coverage in Georgia which provided for out-of-state coverage for Florida under Section 3C of the policy, but no listed coverage for Florida under Section 3A. Four of the sub-subcontractors used by Respondent to perform work in Florida, Celaya Steel Co., DC Construction, Ronald Weeks, d/b/a RTW Construction, and JCB Steel Erectors, Inc., had "other states coverage" in force, including Florida, in Section 3C (but not 3A) of their workers' compensation policies. Two companies used by Respondent to perform work in Florida, Edward Leggett and Southern Steel Erectors, were not covered by the "other states coverage" provision of Georgia workers' compensation policies. On September 16, 2004, Edward Leggett, as a sub- subcontractor to Respondent, was engaged in the construction of a pre-engineered metal building located at 3615 Dupont Center, Jacksonville, Florida. The general contractor on this job was BEKKA Corporation. Allen DiMaria, Petitioner's investigator, observed the type of work being performed on the project, patch work on the roof. No steel erection, or any other type of work was observed being performed on this project. Respondent's workers' compensation code as its principal business is listed under sheet metal work, NCCI Code No. 5538. Petitioner admitted that this was the most appropriate code classification to describe Respondent's principal type of work. The type of pre-engineered metal buildings erected by Respondent's sub-subcontractors required various types of work. The first phase of the work is steel erection, also known as "red iron work." The next phase is erecting walls and performing various types of trim work involved with sheet metal. The third phase is roof work, and the final phase is trim work and any punch list work required to complete the project. Respondent's standard payment draw requests to its customer, the general contractor, follows a sequencing under which 25 percent is paid for steel erection, 50 percent for sheet metal work and trim out, and 25 percent for roofing. Respondent's sub-subcontractors are also paid in this same manner. Further, Respondent's sub-subcontractors, who all were out-of-state Georgia employers, generally provide per diem travel expenses to their employees and account for overhead and profit. On September 17, 2004, after conducting a CCAS database search which resulted in his finding no record of workers' compensation coverage for either Respondent or Edward Leggett, Mr. DiMaria issued a Stop Work Order and Order of Penalty Assessment on Respondent. The Order required Respondent to cease all business operations in Florida. After the Stop Work Order was issued, Mr. DiMaria sent a request for business records to Respondent. Linda Rowan, Respondent's secretary/treasurer, responded that Respondent had no employees doing any work at any job sites in Florida, and that all work was being performed by sub-subcontractors of Respondent. Mr. DiMaria then requested that Respondent send copies of any subcontracts, payment records, and insurance information regarding work performed in Florida by Respondent's subcontractors from 2002 to September 17, 2004, the date of the Stop Work Order. In response to this request, Ms. Rowan mailed copies of all subcontracts Respondent had with its sub- subcontractors, all payment records related to these contracts, and insurance certificates furnished by the sub-subcontractors. Because Respondent had no employees performing any of the work, it had no payroll records to send to Petitioner. Petitioner requested no business records from Respondent's sub-subcontractors to determine what actual payroll was performed on the jobs in question. Once the information was furnished to Petitioner, Respondent heard nothing further from Petitioner until the Amended Order of Penalty Assessment was issued in the amount of $150,598.05. Petitioner, on the eve of hearing, further amended the penalty assessment to the amount of $140,975.32. In calculating the further Amended and Final Penalty Assessment, Petitioner asserted that it utilized the total payments made by Respondent to its sub-subcontractors in lieu of any payroll records, as the calculation of gross payroll. The actual amounts paid to DC Construction on the BEKKA Corporation job, performed from June 18, 2004 to August 19, 2004, and from July 29, 2004 to September 23, 2004, were overstated by $5,518.00. The amount of assumed payroll for the work performed by Southern Steel from April 12, 2002 to April 30, 2002, was understated by $800.00, based upon the actual payments received. These assumed payroll amounts were then multiplied by the NCCI classification code rates for steel erection for all work performed by Respondent's sub-subcontractors in Florida during 2002, 2003, and 2004. That figure was then multiplied by 1.5 to arrive at the penalty assessment. Celaya Steel performed work in Florida between August 28, 2003, and September 30, 2003, for which it was paid $7,602.00, by Respondent. On a separate job, Celaya Steel was paid $7,000.00, for work performed between September 24, 2003, and September 30, 2003. These precise breakdowns by job performed by Celaya Steel are not included in the further Amended Stop Work Order and Penalty Assessment, but were included in the original Penalty Assessment dated October 14, 2004. After deducting amounts paid for equipment rentals, the cost of work performed by Celaya Steel after October 1, 2003, is $13,528.00. Southern Steel Erectors performed work as a sub- subcontractor of Respondent from April 12, 2002, to April 30, 2002, for which it was paid $7,300.00. Ronald Weeks, d/b/a RTW Construction, performed work on May 14, 2004, with a gross payroll of $1,420.00. JCB Steel Erectors, Inc., performed work from October 30, 2003 to December 04, 2003, with a gross payroll of $5,873.00. Based upon insurance certificates received from its sub-subcontractors, Respondent believed that its sub- subcontractors' workers were covered by workers' compensation insurance. Petitioner calculated its original and final Amended Penalty Assessments using Florida premium rates and the class code for steel erection only. In the Final Penalty Assessment, the penalty was revised slightly due to equipment charges that were offset against the sub-subcontract amounts so that the assumed payroll was calculated based upon actual payments received by the sub-subcontractors, not the original subcontract amounts, except as to DC Construction where the subcontract amount, not the actual payments made to DC on the BEKKA Corporation job were used. Celaya Steel started this job, was later replaced by DC Construction, which was further replaced by Edward Leggett which finished the remaining roof-patching work on the project and was paid $4,000.00 for its work.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Workers' Compensation issue a further and final Amended Penalty Assessment Order as follows: Edward Leggett. The gross payroll of $4,000.00 should be multiplied at the rate of 40 times the Roofwork NCCI approved manual rate of $46.17 per hundred, then times 1.5 for a revised final penalty of $2,770.20. DC Construction. The actual payments made to DC Construction were $43,321.58 which should be applied at the rate of 25 percent of the payment times the NCCI steel erection code 5059 rate, 50 percent of the payment times the sheet metal and trim NCCI code 5538 rate, and 25 percent of the payment times the roofing work NCCI code 5551 rate. This results in a revised penalty for the DC Construction work of $28,971.32. Celaya Steel Co. Only the amounts for work performed after October 1, 2003, $13,528.00 shall be applied for assessment purposes. Applying the appropriate codes as used for the DC Construction work (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing) yields a final revised penalty of $9,047.07. Southern Steel. No work was performed by Southern Steel Erectors after October 1, 2003. Accordingly, no penalty is to be assessed for any work performed by Southern Steel Erectors. Ronald Weeks d/b/a RTW Construction. Applying the same NCCI codes as applied to the work performed by DC Construction and Celaya Steel Co. (25 percent steel erection, 50 percent sheet metal and trim, and 25 percent roofing), yields a final revised penalty of $768.33. JCB Steel Erectors. Applying the same NCCI codes as applied to the work performed by DC Construction, Celaya Steel Co., and Ronald Weeks d/b/a RTW Construction (25 percent steel erection, 50 percent sheet metal and trim, 25 percent roofing) yields a final revised penalty of $2,883.73. The total revised penalties and assessments (Items 1-6 above) are $44,440.65. DONE AND ENTERED this 19th day of October, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Allen P. Clark, Esquire Foley & Lardner, LLP One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing, I make the following findings of fact. On or about April 28, 1988, Florida State University mailed its Invitation To Bid (ITB) No. K-1193-6, to prospective bidders. According to the elevator maintenance specifications attached to ITB No. K-1193-6, the stated purpose of the ITB was was to secure bids for the continuous maintenance of all elevators and dumbwaiters as per the attached list in accordance with the conditions, specifications, and terms listed herein." Responses to the ITB were submitted by Miami Elevator Company in the amount of $289,861.00, by Montgomery Elevator Company in the amount of $192,356.00, and by Mowery Elevator Company in the amount of $137,967.00. Section VI of the ITB requires each bidder to submit the following documentation with its bid. A statement indicating the address of the service center from which the bidder proposes to serve the University. To be acceptable the service center must be located within a ten (10) mile radius of the University campus to minimize travel time in securing parts and supplies. A statement certifying that the local service center from which he will service this contract will contain and maintain an inventory of a least $45,000.00 in parts and materials specifically intended for the elevators to be repaired and maintained under this contract. This inventory is to be available in the Tallahassee service center for inspection upon the request of authorized University officials. A list by name of the type and number of employees who will be assigned to the University under this contract detailing their education, training and experience record. To be acceptable the employees assigned must meet the following requirements in terms of quantity and qualifications. A minimum of two (2) full time, fully qualified and certified master elevator mechanics MUST be assigned to service this contract. Both must possess a "certificate of competency" from the Dept of Business Regulation, Division of Elevator Inspection. Copies of these certificates are to accompany the the (sic) vendors bid. At least one (1) of these two mechanics MUST BE ASSIGNED EXCLUSIVELY to servicing this contract at all times. The contractor may designate one of the two mechanics to be the primary mechanic to service this contract and he will devote his time exclusively to this contract. In the event this mechanic is ill or for other reasons cannot service the contract, the second mechanic designated under this paragraph will assume the duties of EXCLUSIVE service to this contract. THIS IS AN ABSOLUTE REQUIREMENT. An additional, fully qualified mechanic holding the above required "certificate of competency" and at least one (1) helper will also be listed and be available to render immediate support to the two primary mechanics to maintain and repair the elevators and dumbwaiters covered by this contract. * * * The ITB specified that bids would be opened at 11:00 a.m. on Tuesday, May 17, 1988. On or about May 26, 1988, Florida State University posted its Bid Tabulation rejecting all bids for failure to meet various specifications. The reason for the rejection of each bidder was listed on the Bid Tabulation as follows: As to Mowery the rejection was based on Mowery's failure to provide a certificate for additional mechanic; no proof of experience on other than Mowery Elevators; and no mention of traction elevators. As to Montgomery the bid was rejected for failure to provide certificates for mechanics; As to Miami the bid was rejected for failure to meet inventory requirements. Paragraph 9, entitled "Awards," of the ITB reserves the right of the University to reject any and all bids as the best interest of the University may require. The Miami Elevator Company bid included a letter of certification. Pertinent portions of that certification are as follows: Address of service center from which we propose to serve the University: 850 Blountstown Highway Tallahassee, Florida 32304 (904) 576-0161 We hereby certify that the Miami Elevator Company local service center has an inventory equal or greater than 10 percent of the total bid amount and have parts inventory greater than $45,000.00 in our nearest supply warehouse. In 1985, Florida State University issued bid specifications for elevator maintenance services. The 1985 bid specifications contained a certification requirement which included the following language: A statement certifying that the local service center has an inventory equal to at least ten percent (10 percent) of the total bid amount and is supported by a parts inventory of parts required to service the elevators and dumbwaiters covered by this contract, of at least $45,000.00 in the bidder's nearest supply warehouse. The local inventory, shall be available in the bidder's Tallahassee service center for inspection by authorized University personnel before the bid award. The successful bidder is to provide the University, by 7/31/85, with the parts list of the $45,000.00 inventory he is required to maintain. Experience has shown that inventories in the above amounts are necessary to provide support for an installation with the number of elevators and dumbwaiters located at the University. In 1988, prior to the preparation of the bid specifications at issue here, representatives of Miami Elevator Company met with representatives of Florida State University and suggested that the latter make certain changes to the above- quoted language from the 1985 bid specifications when they prepared the 1988 bid specifications. The University representatives followed the suggestions and when the 1988 specifications were issued, the certification requirements regarding inventory read as set forth above in paragraph 2 of these findings of fact. When Miami Elevator Company prepared its bid response to the 1988 ITB, the company representative preparing the bid used the company's 1985 bid response as a model. When he came to the portion of the certification that addressed inventory, he forgot that he and one of his company colleagues had prevailed upon the University to change that requirement. Because of his failure to remember the change, the Miami Elevator Company representative simply copied the inventory certification statement that appeared in the company's 1985 bid response. That statement was responsive to the 1985 bid specifications regarding inventory certification, but was not responsive to the 1988 bid specifications regarding inventory certification. The representative of Miami Elevator Company intended to submit an inventory certification that complied with the requirements of the 1988 bid specifications, but simply made a mistake and copied the language from the company's 1985 bid response. The inventory certification requirement is in a mandatory portion of the bid specifications. It is a material requirement because the availability of a sufficient parts inventory is critical to the timely and efficient maintenance and repair of the elevators and dumbwaiters. The pricing portion of the Miami Elevator Company bid appears to have been prepared with a lack of much attention to detail. The total contract price of $289,861.00 was calculated by one of the company's regional managers. The individual who calculated that total price had not inspected any of the elevators at the university, had no current personal knowledge of any specific elevator, and did not possess a certificate of competency from the Department of Business Regulation, Division of Elevator Inspection. Further, he appears to have misconstrued the significance of a report regarding the condition of some of the elevators and also appears to have made some unwarranted assumptions about the scope of the work required under the bid specifications. Another representative of Miami Elevator Company inspected some of the elevators, but he did not participate in the calculation of the bid amount. As a result of what appears to have been a rather broad-brush approach to the bid calculation process, the Miami Elevator Company bid was more than $100,000.00 over what the university expected the bids to be and was almost $100,000.00 over the second highest bid. The base price of the prior contract awarded in 1985 was $105,344.00. The Miami Elevator Company bid of $289,861.00 represents an increase of approximately 175 per cent of the 1985 price. The university expected that there would be a significant price increase due to such matters as the inflation rate over the past three years, inflation projection for the next three years, and some of the differences between the 1985 and the 1988 bid specifications, but it did not expect an increase of 175 per cent. The university has estimated that a reasonable bid would represent approximately a 75per cent increase in the 1985 price. The factors on which the university estimate are based appear to be reasonable and logical. The Miami Elevator Company facility located at 850 Blountstown Highway includes a separate warehouse on the property which contains inventory valued at approximately $70,000.00. That inventory would be available to service the university elevators. The subject ITB specifically required that each bidder certify that it agreed "to abide by all conditions of this bid." Miami Elevator Company made such a certification when its representative signed the first page of the ITB.
Recommendation For all of the foregoing reasons, it is recommended that the Florida State University issue a final order in this case rejecting all bids. DONE AND ENTERED this 26th day of July, 1988, 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 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2960BID The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Petitioner, Miami Elevator Company Paragraphs 1, 2, 3, and 4: Accepted. Paragraph 5: Accepted, with some additional details for clarity. Paragraph 6: Rejected as irrelevant to the issues in this case. Paragraphs 7 and 8: Accepted, with some unnecessary details omitted. Paragraph 9: First sentence rejected as not supported by persuasive competent substantial evidence and as, in any event, irrelevant. Second sentence rejected as irrelevant. Paragraphs 10 and 11: Accepted. Paragraph 12: Rejected as constituting argument regarding legal conclusions rather than proposed findings of fact. Further, the legal conclusion asserted is not warranted by the evidence. Paragraph 13: Rejected as statement of another party's position rather than proposed finding of fact. Paragraphs 14 and 15: These two paragraphs have for the most part been rejected as constituting unnecessary details. Further, a number of the details proposed are not supported by persuasive testimony, because I am not persuaded that Mr. Herbst did a very careful job of informing himself about the requirements of the bid specifications or about the condition of the subject elevators. Paragraph 16: All but last sentence rejected as subordinate and unnecessary details. Last sentence rejected as not supported by persuasive competent substantial evidence. Paragraph 17: Rejected in part as subordinate and unnecessary details, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 18: Rejected as contrary to the greater weight of the evidence. Paragraph 19: Most of this paragraph is rejected as constituting a statement of another party's position and as argument about that position. Findings are made that there are differences between the subject invitation to bid and the immediately preceding invitation to bid. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details. Paragraphs 22 and 23: Rejected in part as argument rather than proposed findings, in part as not supported by persuasive competent substantial evidence, and in part as contrary to the greater weight of the evidence. Paragraph 24: First two sentences rejected as contrary to the greater weight of the evidence. The remainder of this paragraph (dealing with Mowery) is rejected as irrelevant. First Paragraph 25: Accepted in substance. Second Paragraph 25: Rejected as irrelevant or as subordinate and unnecessary details. Paragraph 26: Rejected as for the most part constituting argument rather than proposed findings; to the extent findings are proposed, they are rejected as not supported by competent substantial evidence or as contrary to the greater weight of the evidence. Findings proposed by Respondent, Florida State University Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as constituting discussion of legal conclusions rather than findings of fact. (The conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 4, 5, and 6: Accepted in substance, but with numerous unnecessary details omitted. Paragraph 7: First two sentences rejected as cumulative and repetitious. Last sentence accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: Rejected as subordinate and unnecessary details dealing more with legal conclusions than with facts. Paragraph 10: First two sentences rejected as cumulative and repetitious. The remainder of this paragraph is accepted in substance. Paragraph 11: Rejected as irrelevant. Paragraph 12: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 13: Rejected as irrelevant to the issues in this case. Paragraph 14: Rejected as constituting argument about legal conclusions rather than proposed findings of fact. (Again, the conclusions are essentially correct, but they do not belong in the findings of fact.) Paragraphs 15, 16, 17, 18, and 19: Rejected as irrelevant because these proposed findings all relate to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 20: Rejected as procedural details that do not need to be included in the findings of fact. Paragraph 21: Accepted in substance. Paragraph 22: Rejected as subordinate and unnecessary generalities. Paragraphs 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraphs 29, 30, 31: Accepted in substance, with some unnecessary details omitted. Paragraphs 32, 33, 34, and 35: The essence of the findings proposed in these paragraphs has been found, but most of the details proposed have been omitted as subordinate and unnecessary. Findings proposed by Intervenor, Montgomery Elevator Company Paragraph 1: Accepted. Paragraph 2: Accepted in substantial part, but with irrelevant portions of the specifications omitted. Paragraphs 3 and 4: Accepted. Paragraph 5: Accepted in large part, but some irrelevant information has been omitted. Paragraph 6: Accepted in substance. Paragraph 7: First sentence rejected as constituting discussion of legal conclusions rather than proposed findings of fact. Second sentence accepted in substance by quotation of Miami Elevator Company's certification. Paragraph 8: Accepted. Paragraphs 9, 10, 11, 12, and 13: Rejected as irrelevant because these proposed findings all related to issues that were not raised in prehearing pleadings and were not raised in the prehearing statement. Paragraph 14: Bid amount is accepted; remainder is rejected as subordinate and unnecessary details. Paragraph 15: The essence of this paragraph has been included in the findings, but most details have been omitted as unnecessary. COPIES FURNISHED: Sonja P. Mathews, Esquire Associate General Counsel Office of the General Counsel The Florida State University 311 Hecht House Tallahassee, Florida 32306 Harold F.X. Purnell, Esquire Oertel & Hoffman, P.A. 2700 Blairstone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507 S. Grier Wells, Esquire Brant, Moore, Sapp, MacDonald & Wells 121 West Forsyth Street, Suite 900 Post Office Box 4548 Jacksonville, Florida 32201
The Issue Is Petitioner entitled to one additional point on the October 1996 Professional Civil Engineer Examination so as to achieve a passing score for licensure in Florida?
Findings Of Fact Petitioner took the Civil Engineer Examination given in October 1996. The Department of Business and Professional Regulation's Bureau of Testing notified Petitioner by Examination Grade Report dated February 17, 1997, that she had earned a score of 69.00 on the Civil Engineer Examination. The minimum passing score for the Civil Engineer Examination is 70.00. Petitioner timely requested formal hearing and challenged only Question 120, for which she received no points. Petitioner is trained as a materials engineer. Question 120 is a soils and foundation problem outside her concentrated area of study. It is an open book examination question. Petitioner selected the correct equation from the applicable manual, but acknowledged that she solved the variables of that equation incorrectly. The National Council of Examiners for Engineering and Surveying (NCEES) produced, distributed, and was responsible for grading the examinations. Petitioner contended that the examiner who graded her answer sheet applied different criteria than the examination criteria published by the NCEES. Petitioner further contended that since one criterion her grader actually used was merely to "write the correct equation," she should be awarded at least one point on that basis. However, a comparison of the actual grader's handwritten "summary" on Petitioner's Solution Pamphlet (Respondent's Exhibit 3) and the NCEES's Solutions and Scoring Plan (Respondent's Exhibit 2) does not bear out Petitioner's theory. It is clear that out of five possible parts of the question, which five parts total two points' credit each, merely selecting the correct equation from an open text would not amount to two points, or even one point, credit. I accept as more competent, credible and persuasive the testimony of Eugene N. Beauchamps, the current Chairman of the NCEES Examination Policy Committee and a Florida licensed Professional Engineer, that the grader's "summary" describes what he actually reviewed in Petitioner's written solution to Question 120 rather than establishing one or more different grading criteria. In order to receive a score of two on Question 120, the candidate was required to demonstrate any one of five requirements listed in the NCEES Solution and Scoring Plan for "2-Rudimentary Knowledge." The first requirement in the NCEES Solution and Scoring Plan (Respondent's Exhibit 2) for receiving a score of two points is, "Determines effective overburden stress at mid- depth of clay layer." The remaining four NCEES scoring criteria required that the examinee: Computes the change in effective stress at mid- depth of the clay layer due to placement of the fill. Computes the primary consolidation settlement, based on a change in effective stress, due to the fill surcharge. Evaluates the Average Degree of Consolidation and the Time Factor. Determines the waiting period after fill placement recognizing the existence of double-drained conditions. In order to gain two more points (total 4 points) so as to demonstrate "More Than Rudimentary Knowledge But Insufficient to Demonstrate Minimum Competence," Petitioner would have to have met two of the five bulleted criteria. For two more points (total 6 points) for "Minimum Competence," Petitioner would have had to score three bullets. For two more points (total 8 points) for "More than Minimum But Less Than Exceptional Competence," Petitioner would have had to score four bullets. Finally, to attain "Exceptional Competence" for 10 total points, Petitioner would have had to score all five bullets. In the first correct equation for answering Question 120, "p sub zero" (p naught) equals the present effective overburden pressure, which represents what clay was present before anything was put on top of the clay layer. "P" equals the total pressure acting at mid-height of the consolidating clay layer or the pressure of the dirt and the water in the dirt. "H" equals the thickness of the consolidating clay layer. Petitioner's solution for the first bullet, "determining the effective overburden stress at mid-depth of clay layer," indicated p sub zero (p naught) as the "present effective overburden pressure," but it incorrectly calculated p sub zero equaling 125 pounds multiplied by 13 feet. This is incorrect because the effective overburden pressure would not include 13 feet of fill. The 13 feet of fill is not part of p sub zero, the present effective overburden pressure. Petitioner's solution for the first bullet, also multiplied water, represented by 62.4, by 12, which is incorrect. She should have used a multiplier of 10 to receive credit for this problem. The grader indicated the correct equation was used incorrectly by Petitioner because of the two foregoing incorrect calculations. The equation, as Petitioner stated it, was correct and her multiplication was correct. Her solution identified P sub zero as present effective overburden pressure but present effective overburden pressure would not include the fill. Petitioner had the correct equation for the present effective overburden pressure and her mathematics were correct. However, she did not use the consolidation equation correctly, not obtaining the correct percentage of primary consolidation. As stated, the problem did not consider the fill as part of the present effective overburden pressure. Her solution also contained the correctly written time rate of settlement equation but failed to use it, and no waiting period was determined. The practical result of Petitioner's error could range from a cracked building to a collapsed building, depending upon the degree of error to site and materials.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order denying Petitioner's challenge and affirming her score as one point below passing. RECOMMENDED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Susan E. Wilson 3581 Jose Terrace Jacksonville, Florida 32217 R. Beth Atchison Assistant General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Angel Gonzalez, Executive Director Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue Whether the Respondent's statements regarding enforcement of the Florida Elevator Safety Code, as set forth in the Amended Petition Challenging Agency Statement Defined as a Rule filed November 21, 2008, constitute agency statements defined as rules that must be promulgated pursuant to Section 120.54(1), Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the stipulated facts contained in the Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency "empowered to carry out all of the provisions of this chapter relating to the inspection and regulation of elevators and to enforce the provisions of the Florida Building Code." § 399.02(6), Fla. Stat. The Department is given rulemaking authority to carry out the provisions of Chapter 399, Florida Statutes. § 399.10, Fla. Stat. The City is an incorporated municipality of the State of Florida. As a property owner, it is subject to the provisions of Chapter 399, Florida Statutes, and to the rules adopted by the Department to carry out its responsibilities under Chapter 399, Florida Statutes. Pursuant to Section 399.061, Florida Statutes, "[a]ll elevators . . . subject to this chapter must be annually inspected," and the Department has the authority to require correction of any violations of Chapter 399, Florida Statutes, or of the Florida Building Code discovered in those inspections. § 399.061(1)(a) and (4), Fla. Stat. The Department also has the authority to protect the public safety by ordering that the use of any elevator found to be in an unsafe condition be discontinued until the elevator has been repaired and may be operated safely. § 399.061(3). Section 399.02(5)(b), Florida Statutes, places on the elevator owner the responsibility "for the safe operation, proper maintenance, and inspection and correction of code deficiencies of the elevator after a certificate of operation has been issued by the department." The Department has adopted standards for the installation and maintenance of elevators in Florida Administrative Code Rule 61C-5.001, which provides in pertinent part: Adopted Standards. The installation and maintenance of elevators, dumbwaiters, escalators, moving walks, inclined and vertical wheelchair lifts, and inclined stairway chairlifts shall be governed by the following standards, which are hereby adopted and incorporated by reference. Chapter 30, Elevators and Conveying Systems, of the 2004 Florida Building Code, including the 2006 supplements; American National Standard Guide for Inspection of Elevators, Escalators, and Moving Walks, ASME A17.2-2004; and The Uniform Fire Safety Standards for Elevators, Chapter 69A-47, F.A.C., established by the Department of Financial Services. Chapter 30 of the Florida Building Code provides in pertinent part: 3001.1 Scope This chapter governs the design, construction, installation, alteration and repair of elevators and conveying systems and their components. Note: Other administrative and programmatic provisions may apply. See the Department of Business and Professional Regulation [DBPR] Chapter 399, Florida Statutes, and 61C-5, Florida Administrative Code. The regulation and enforcement of the following sections of the adopted codes, and their addenda, are preempted to the Bureau of Elevator Safety of the Department of Business and Professional Regulation: ASME A17.1, Part 8, ASME A17.3, Sections 1.2, 1.5, ASME A18.1, Part 10. 3001.2 Referenced standards Except as otherwise provided for in this code, the design, construction, installation, alteration, repair and maintenance of elevators and conveying systems and their components shall conform to ASME A17.1, ASME A17.1S, ASME A90, ASME B20.1, ALI ALCTV, ASME A17.3 and ASME A18.1. The Division of Hotels and Restaurants may grant exceptions, variances and waivers to the Elevator Safety Code as authorized by the Elevator Safety Code. (ASME A17.1, Section 1.2) and Florida Statutes (Chapter 120).[6] The Department did not separately incorporate by reference ASME A17.1, Part 8 (2004), or ASME A17.3 (1996) in Florida Administrative Code Rule 61C-5.001. ASME A17.2-2004, which is specifically incorporated by reference in Florida Administrative Code Rule 61C-5.001(1)(b), is entitled "Guide for Inspection of Elevators, Escalators, and Moving Walks" and provides in the Preface in pertinent part as follows Requirements for Existing Elevators Elevators and escalators in jurisdictions that have adopted the Safety Code for Existing Elevators and Escalators, ASME A17.3, . . . must, at a minimum, conform to the requirements identified in the Guide as "A17.3." If an existing installation does not meet the requirements of the A17.3 Code, it must be upgraded. If an existing installation was required to meet more stringent requirements, it must continue to meet those requirements.[7] The Preface to ASME A17.3 (1996), the edition of the standard used by the Department, includes a statement of the general purpose of the standard and provides in pertinent: This Code is intended to serve as the basis for state and local jurisdictional authorities in adopting retroactive requirements for existing elevators and escalators to enhance the safety of the general public. It is also intended . . . as a standard of safety practices for building owners and managers of structures where existing elevator equipment covered in the scope of the Code is used. The purpose of this Code is to establish minimum requirements that will provide a reasonable degree of safety for the general public. [8] Section 1.2 of ASME A17.3 (1996) provides in pertinent part as follows: "Existing installations, as a minimum, shall meet the requirements of this Code. If an existing installation does not meet the requirements of this Code, it shall be upgraded. If an existing installation was required to meet more stringent requirements, it shall continue to meet those requirements."9 Section 1.5 of ASME A17.3 (1996) provides that existing installations must conform to Part X of ASME A17.1, Routine, Periodic, and Acceptance Inspections and Tests, and to Part XII, Alterations, Repairs, Replacements, and Maintenance.10 Part 8 of ASME A17.1 (2004), the edition of the standard used by the Department, "contains general requirements for new and used existing equipment."11 A note appended to the statement of the scope of Part 8 states that "[r]equirements 8.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing installations."12 Requirement 8.1 deals with security for new and existing elevators; Requirement 8.9 requires placement of a Code data plate on all new and existing elevators; Requirement 8.10 applies to new installations and alterations to existing installations. Pertinent to this proceeding, Requirement 8.6 "applies to maintenance, repairs, and replacements" and Requirement 8.6.1.2 provides as follows: Maintenance, repairs, and replacement shall conform to 8.6 and the Code at the time of the installation Code requirements at the time of any alteration ASME A17.3 if adopted by the authority having jurisdiction[.][13] Requirement 8.11 applies to "periodic inspections and tests of existing installations", and Requirement 8.11.1.2 provides as follows: Inspections and tests required by 8.11.2 through 8.11.5 are to determine that the existing equipment conforms with the following Code requirements: the Code at the time of installation the Code effective as applicable to and for each alteration the ASME A17.3 Code, if adopted by the authority having jurisdiction[.][14] Section 399.03, Florida Statutes, governs the design, installation, and alteration of conveyances, and provides in pertinent part: "(7) Each elevator shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of receipt of application for the construction permit for the elevator."15 The Department publishes Industry Bulletins and Technical Advisories regarding the implementation of Chapter 399, Florida Statutes, and it also publishes statements of "Current Practices" on its website. At issue herein are statements made in Industry Bulletin for Florida's Elevator Industry Number 2006-01, dated April 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2006-04, dated August 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2008-03, dated July 18, 2008, and revised July 21, 2008; Technical Advisory Issue 2008-01, dated August 18, 2008; and contained in a posting on the Department's website entitled "Elevators Current Practices." In each of these documents, the Department indicated that, to ensure the safety of the public, it would enforce the provisions of the then currently-adopted edition of the Florida Building Code to the extent that the Florida Building Code required retrofitting or modification of existing elevators. In Industry Bulletin Number 2006-01, dated April 1, 2006, the Department stated that, notwithstanding the provision in Section 399.03(7), Florida Statutes, "that elevators 'shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of the receipt for [sic] application for the construction permit for the elevator,'" it would not exempt existing elevators from the provisions of the "new" edition of the Florida Building Code that "require[] retrofitting older elevators because aging equipment may pose a threat to public safety." The Department stated that "Florida Statutes [specifically section 399.001 and 399.061(3)] are in agreement with ASME A17.1 (2000) and A17.3 (1996) regarding life safety issues" and that the Department would require "that, in the interest of public safety, the older and potentially hazardous elevator be brought into compliance with the newer code."16 In Industry Bulletin Number 2006-04, dated August 1, 2006, the Department reiterated its intent to enforce the "new" edition of the Florida Building Code regarding the modification of existing elevators to protect public safety because public safety was its paramount regulatory responsibility. It also reiterated that it could not "provide an elevator owner with an exemption from a new code provision essential to the safe operation of the elevator." The Department advised that it would specifically "require the single wall hydraulic cylinder safety provision of the ASME A17.1 2000 code [Section 8.6.5.8] [to] be enforced as part of the annual elevator inspection." The Department observed that "[t]he ASME Standards Committee considered these sections [Section 8.6.5.8 and sections reference therein] so important to life safety that corrective action is required for all existing single wall hydraulic cylinder elevators." The Department also advised elevator owners that, because compliance with certain code requirements might be "costly and/or complex," they "may submit to the bureau [of Elevator Safety] a letter of intent to comply within 30 days of the date of issuance of an Order to Correct and a plan of corrective action (PCA) within 60 days of the date of issuance of an Order to Correct."17 In Industry Bulletin Number 2008-03 dated July 18, 2008, and revised July 21, 2008, the Department stated in pertinent part: The Elevator Safety Code, Chapter 399, F.S.; Chapter 61C-5, Florida Administrative Code; Chapter 30 of the Florida Building Code; and the American Society of Mechanical Engineers (ASME) national standards ASME A17.1-2004 with A17.1a-2005 addenda, A17.2-2004, A17.3- 1996, and ASME A18.1-2003 provide a minimum standard for public safety. These are the codes currently in effect and they will be enforced. In fact, the more stringent of the codes in effect apply, unless specifically stated or otherwise adopted by the Bureau of Elevator Safety, which is the Authority Having Jurisdiction (AHJ). There are no exceptions. The elevator safety code is not subject to individual interpretation. The codes collectively apply to all elevators and provide for the health, safety, and welfare of the riding public.[18] In Technical Advisory Number 2008-01 dated August 18, 2008, headed "Temporary Variance for ASME A17.3 Violations," the Department stated that "elevator owners of older elevators have stated they cannot meet the 30-day requirement to correct costly and complex violations [of A17.3(1996)]." The Department advised that the Bureau of Elevator Safety "was moving forward to extend the current temporary compliance alternative (variance) to include additional A17.3(1996) violations beyond the initial cylinder replacement issue [see Industry Bulletin Number 2006-04]." The Department described the purpose and effect of the temporary variances, set out requirements that must be met in order for the temporary variance to remain in effect, and outlined requirements for elevator owners to request a temporary variance. In addition to information regarding temporary variances, the Department reiterated that "ASME A17.3 (1996) code applies to all existing elevators according to the 2002 revision of the Florida Building Code." In an undated document entitled "Current Practices" related to elevators, found on the Department's official website, the Department made the following statement: In recent months there has been some confusion regarding which version of the safety code the division uses to conduct safety inspections. The division relies upon Chapter 399, Florida Statutes; 61C- 5(1)(a), Florida Administrative Code; and Chapter 30 of the Florida Building Code. The division follows Chapter 30 of the Florida Building Code which in turn adopts ASME A17.1 and ASME A17.3 as governing the maintenance of elevators. Consequently, when inspecting elevators, pursuant to 399.061, Florida Statutes, the division uses ASME A17.1 and A17.3 codes. Nothing has changed the division's reliance on any of these documents. The division has not ceased enforcing A17.3.
The Issue The issue for consideration in this hearing is whether Respondent's license as a certified building contractor should be disciplined because of the matters set out in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was the state agency responsible for the regulation of the construction industry in Florida. Respondent, David P. Miller, was licensed as a certified building contractor under license number CB C039127 and was doing business as Great Southern Construction and Development, Inc. On March 14, 1988, Robert Crowley, a semi-retired real estate broker and promoter, and Treasurer of Enterprise Industrial Park, Inc., (EIP), entered into contracts with the Respondent to construct three buildings, A, B, and H, for it within the park boundaries. Building A was to house offices and retail space; building B was to house warehouse and offices; and building C was to house garage space. The construction was to be financed by an infusion of shareholders' money and by a construction loan from the Southland bank in the amount of $375,000.00. The loan was ultimately increased to $614,000.00 so that EIP could begin development of phase II of the park. The contracts provided for Respondent to be paid $110,000.00 for Building A, $67,000.00 for Building B, and $52,807.00 for Building H. The loan was obtained in phases. The developers had outlined the project to bank officials who approved it, initially, for development of the park and construction of four buildings. Phase one was to include the roadway and one building. When that was completed, the other buildings were to be erected. Site preparation was accomplished by John T. Day. Most of the site preparation was completed before Respondent started construction. Thereafter, as work progressed, Respondent periodically certified to the bank what work had been done and that suppliers had been paid. Upon receipt of that certification, the bank would issue a check for the appropriate amount to EIP which would, thereafter, issue its own check to Respondent. There was an exception, however, in the case of payments to Ludwig Steel. Whereas that supplier would bill Respondent for small items delivered, it demanded payment by cashiers' check upon delivery for major structural steel fabrications. These checks, for steel for Buildings A and B, were for $18,511.84 and $17,716.84, were issued by Southland Bank, at the request of EIP. During the course of his performance of the contracts for the construction of Buildings A, B, & H, Respondent executed several of the above mentioned certification forms. For Building H: These included: a. August 30, 1988 $ 9,505.00 b. October 4, 1988 9,505.00 c. October 17, 1988 9,505.00 d. December 28, 1988 11,881.50 e. January 31, 1989 9,437.50 TOTAL $49,834.00 Prior to these certificates, the bank also released $90,000 in advances for start up costs and the loan in March, April and May, 1988. In addition to the certificates listed above, Respondent also signed certificates for Building A totalling $91,446.00 as follows: a. August 30, 1988 $ 19,800.00 b. October 4, 1988 19,800.00 c. October 17, 1988 19,800.00 d. December 28, 1988 24,750.00 e. January 31, 1989 7,296.00 TOTAL $ 91,446.00 Respondent also signed additional certificates for Buildings B as follows: a. December 28, 1988 $ 46,642.00 b. January 31, 1989 28,031.00 c. March 1, 1989 28,031.00 TOTAL $102,704.00 These certificates were also signed by the architect, Mr. Wilcockson. In fact, they were not correct in that not all the work had been done and not all suppliers had been paid. Respondent admits to falsely signing the certificates but claims he was urged to do so by representatives of EIP who indicated to him it was just a routine procedure. Consequently, even knowing the certificates were not accurate, he signed them because he wanted to get paid. It is found, however, that Respondent has been a licensed contractor for a number of years and knew the implications of his actions. His attempts at justification for his actions are neither credible nor impressive. Construction progressed satisfactorily and without major problems up to the time for the last draw. At that point, the bank declined to issue a check to EIP for the construction of Building C, also to be erected on the site, when it became aware that numerous liens had been filed by subcontractors and materialmen indicating Respondent's failure to make satisfactory payment for buildings A, B, and H. These liens included claims by: American Roll-Up Door Co. $ 3,630.00 B & B Painting Contractors 3,020.00 Blackton, Inc., 5,820.73 Brownie Septic Tank Contractors #1 1,025.00 Brownie Septic Tank Contractors #2 1,025.00 Brownie Septic Tank Contractors #3 1,635.00 Don Alan Dinora 930.00 Energy Savings Systems, Inc. 10,750.00 Florida Mining & Materials 2,388.31 Mid Florida Air Conditioning, Inc. 3,982.00 Neeley-Built Structures, Inc., 4,995.78 Residential Building Supply 7,857.11 Total $47,058.93 Mr. Crowley claims the above liens were satisfied by EIP, and it is so found. He claims EIP also paid some subcontractors who did not file liens because of a desire to help small contractors who otherwise would not have been paid. No figures were available to support that latter claim, however, and it is not considered to be probative of any issue. It is found, however, that Respondent paid Neeley-Built the amount of $4,995.78 and the claim of lien form included within Petitioner's exhibit of filed liens refers to property other than that in issue here. In addition, the $10,750.00 lien of Energy Savings Systems is not totally attributable to services or materials for the instant project. It is estimated that 60 percent of that amount relates to work done outside the three contracts in issue here. Further, only $1,700.00 of the lien of Residential Building Supply relates to material provided for the work done by Respondent under these contracts. The balance relates to work done outside the original contract limits. Over the course of the contracts, EIP paid Respondent, in addition to a deposit of $25,786,99 for Bldgs. A & H, the sums below, for a total of $259,006.72 for Bldgs. A, B, & H: a. Aug. 31, 1988 $19,800.00 for Bldg. A b. Aug. 31, 1988 9,505.00 for Bldg. H c. Oct. 05, 1988 10,793.16 for Bldg. H & A d. Oct. 17, 1988 29,305.99 for Bldg. A & H e. Dec. 14, 1988 19,000.00 f. Dec. 29, 1988 49,417.06 g. Feb. 06, 1989 7,296.00 for Bldg. A h. Feb. 06, 1989 28,310.00 for Bldg. B i. Feb. 06, 1989 9,473.50 for Bldg. H j. Feb. 10, 1989 2,350.00 for misc. k. Feb. 15, 1989 20,000.00 l. Mar. 03, 1989 28,031.00 for Bldg. B In addition to those payments, EIP also paid $16,000.00 to Benson Drywall on December 12, 1988 at the request of Respondent. The total paid by EIP, either to or on behalf of the Respondent, was: $ 25,786.00 deposit 233,280.72 to Great Southern 16,000.00 Benson Drywall 36,228.68 Ludwig Steel $311,295.40 TOTAL Mr. Crowley was not the main source of corporate funds. The President of the company is a Mr. Nelson who was the "money man." Contractor selection was by agreement between Nelson and Crowley, but Crowley was the supervisor of the contracts and did most of the negotiating with Respondent. The work stipulated in the contracts between EIP and Respondent was not the only work called for in their relationship. The contracts provided for the basic construction but Mr. Crowley requested Respondent to perform additional work in or around buildings A, B, and H, which included: Tenant improvements in buildings A and B valued at $23,000 excluding labor; Additional site work including electrical, telephone, grading and filling, berm modification, concrete sidewalks and parking buffers, and repair of damaged concrete (all but the repair of concrete was the result of the failure of the original site preparation contractor to properly complete his work); Negotiations and discussions with Volusia County regarding the sewer/septic system necessary for the project. In addition to the $23,000.00 for tenant improvements mentioned in the paragraph next above, Respondent also paid out of pocket to the following contractors and suppliers for work outside the scope of the original contracts: a. Ludwig Metal Buildings $ 3,000.00 b. Concrete 3,840.00 c. John Bates & family 6,497.73 d. Four Seasons 1,190.00 e. Will Cox 975.00 f. Riley 3,100.00 All Star Electric 4,705.32 Jerry's Concrete Service 1,350.00 TOTAL $24,658.05 Though the contracts referenced in this proceeding pertain to construction of Buildings A, B, & H, Respondent was also retained to erect a metal building to be designated C. Respondent received a total of $253,000.00 from EIP to construct those buildings for which he had the initial contracts and also to put up the metal building, C. The cost to complete Building C was $45,500.00 but EIP had remaining only slightly over $6,000.00 to pay for that work. Respondent did substantial work for EIP which was over and above the services called for under the contracts for Buildings A, B, & H as amended by the change orders for which he was not paid because Mr. Crowley advised him no additional monies were available. For example, he and his brother, Thomas, did additional site work valued by him at $24,260.00; and additional labor and services on the septic and sewer system problems valued by him at $5,600.00 and for tenant improvement, valued by him at $5,000.00. Here, however, it must be noted that the figures cited are not documented by any supporting material and contain significant amounts for his labor which he priced at $90.00 per hour. Mr. Miller, during his relationship with EIP, purchased a 10 percent interest in the firm. He originally filed his own lien on the property for $80,364.00 based on the contracts he had in hand and the site work which he valued at $18,000.00. He claims he subsequently withdrew his lien without being paid so that the limited funds available could be used to pay the subcontractors. No corroborating evidence on this point was introduced, however. Mr. Miller's contracting license was, subsequent to the incidents herein, placed in inactive status and currently remains so. He is not now engaged in contracting and claims he does not intend to do so in the future. His motivation in contesting the allegations against him is, he claims, solely to clear his good name and reputation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Respondent, David P. Miller, d/b/a Great Southern Construction and Development, Inc. pay an administrative fine of $3,750.00 and be reprimanded. RECOMMENDED this 9th day of November, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7413 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 21. Accepted and incorporated herein. 22. - 24. Accepted and incorporated herein. 25. & 26. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Rejected as the total amount paid by EIP for the buildings constructed by Respondent. The figure is somewhat higher due to deposit and amounts paid to suppliers by EIP. Accepted and incorporated herein. * At this point, Respondent's proposed Findings of Fact become misnumbered. There are two numbers 5. The subsequent numbers are as reflected in Respondent's submittal. 5. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. Accepted. 17 & 18. Accepted. Alleged but not proven. Accepted. Rejected as contra to the weight of the evidence. Accepted and incorporated herein. COPIES FURNISHED: Tracy Sumner, Esquire William S. Cummins, Esquire Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kurt R. Borglum, Esquire 366 East Graves Avenue, Suite B Orange City, Florida 32763 Jack McRay General Counsel Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an] electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspended respondent's certificate of registration for sixty (60) days. DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task. Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch. COPIES FURNISHED: Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building Tallahassee, Florida 32302 Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, a State agency, Complainant, vs. DOAH CASE NO. 77-2224 CLARENCE L. KIMBALL, Registrant. /
The Issue Whether Edward J. McLoughlin's license as a registered general contractor in the State of Florida should be disciplined for alleged violations of Chapter 489, Florida Statutes, as set forth in an Administrative Complaint filed May 6, 1987?
Findings Of Fact Edward J. McLoughlin is, and was at all times material to this proceeding, licensed in the State of Florida as a registered general contractor. Mr. McLoughlin's license number is RG 0023302. Mr. McLoughlin's registered general contractor's license has been delinquent for failure to renew since 1983. Mr. McLoughlin was not licensed as an electrical contractor or as a plumbing contractor in the State of Florida during 1986. Joyce Carmichael, Mr. McLoughlin's former wife, and Richard D. Oldham, jointly own a four bedroom house. Ms. Carmichael and Mr. Oldham decided to convert the house to a duplex. In June and July of 1986, Ms. Carmichael contacted Mr. McLoughlin and requested that he perform the remodeling work necessary to convert the house to a duplex for her and Mr. Oldham. Initially Mr. McLoughlin declined to do the work. In July, 1986, however, Mr. McLoughlin agreed to perform the work. Mr. McLoughlin indicated that he would perform the work in return for an hourly fee. Ultimately, however, Mr. McLoughlin agreed to perform the work for a lump-sum of $2,000.00. The renovation work on the house was begun by Mr. McLoughlin in July, 1986. Mr. McLoughlin provided the tools and labor necessary to renovate the house and Ms. Carmichael and Mr. Oldham paid for supplies and materials. Ms. Carmichael purchased the supplies and materials which Mr. McLoughlin told her to purchase. During the course of the renovations, Mr. McLoughlin performed electrical work and plumbing work for which an electrical license and a plumbing license were required. Mr. McLoughlin stopped performing work on the house in September, 1986, because he was unwilling to perform all the electrical work necessary to complete the renovations. Mr. McLoughlin was paid $1,000.00 for the work that he performed for Ms. Carmichael and Mr. Oldham. Although Mr. Oldham was a licensed contractor in 1986, he did not agree to act as the contractor for the renovations on the house and Mr. McLoughlin did not work at Mr. Oldham's direction and under Mr. Oldham's supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order finding Edward J. McLoughlin guilty of violating Section 489.129(1)(j), Florida Statutes, for failing to comply with Sections 489.115(3) and 489.117(2), Florida Statutes It is further RECOMMENDED that the Department issue a letter of reprimand to Mr. McLoughlin and require that he pay a fine of $250.00. DONE and ENTERED this 20 day of July, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 20th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2501 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally-accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2. 3-4 3. 5 5. 6 4 and 5. 7 7. 8-9 10. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Irrelevant. There is no requirement that the "complaining witness" appear at the formal hearing. 2-4 Argument and summary of proceedings. 5-6 Argument of law. Not supported by the weight of the evidence. Although it is true that materials were purchased by Ms. Carmichael, the rest of this proposed finding of fact is not supported by the weight of the evidence. 9-10 Argument of law and not supported by the weight of the evidence. COPIES FURNISHED: Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lester Mokofka, Esquire 222 East Forsyth Street Jacksonville, Florida 32202
The Issue The issue in the case is whether the application filed by Thomas Edwards Dalton (Petitioner) to take the examination for certification as a plumbing plans examiner should be approved.
Findings Of Fact The Petitioner is seeking to become a state-certified plumbing plans examiner. The Respondent is the state agency charged with responsibility for certification of plumbing plans inspectors. On December 12, 2013, the Petitioner submitted to the Respondent his application to take the examination for the certification sought. As required by rule, the Petitioner also submitted an “Affidavit of Work Experience” setting forth a statement of work experience presumably relevant to his application. The affidavit form requires that it be “completed by an architect, engineer, contractor or building code administrator, who has personal knowledge of the application’s experience” for the relevant period. The Petitioner wrote the narrative of his experience contained within the affidavit dated December 8, 2013. The affidavit was signed by a person identified as Anthony Applebeck, a building code administrator in Altamonte Springs, Florida. Generally, an “Application Review Committee” (ARC) comprised of three building code enforcement specialists reviews applications and affidavits submitted to the Respondent. In this case, two members of the ARC independently reviewed the Petitioner’s submission and determined that additional information related to the Petitioner’s work experience was required. In an email dated December 17, 2013, the Respondent advised the Petitioner that additional information was required. The letter stated as follows: The Affidavit of Work Experience that was submitted with your application is missing detailed hands-on plumbing experience. Please complete the enclosed Affidavit of Work Experience and submit it to the department. The person completing the work affidavit should be specific when explaining your duties and actual hands-on experience. The ARC’s determination that the Petitioner’s Affidavit of Work Experience was insufficient was correct. The affidavit lacked a detailed explanation of the Petitioner’s work experience, specifically as to “hands-on” plumbing involvement. The Petitioner failed to submit the supplemental work experience affidavit requested by the Respondent. In an email dated December 18, 2013, the Petitioner requested that the ARC reconsider his original submitted affidavit. On February 18, 2014, the Respondent issued a Notice of Intent to Deny the Petitioner’s application based on the failure to submit sufficient information to establish that the Petitioner has the experience required for the certification sought. By letter dated February 28, 2014, the Petitioner challenged the proposed denial of his application and requested an administrative hearing. The evidence presented at the hearing by the Petitioner was insufficient to establish that the Petitioner meets the requirements to take the examination for certification as a plumbing plans examiner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application to take the examination for certification as a plumbing plans examiner be denied. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of December, 2014. COPIES FURNISHED: Thomas Edward Dalton 906 Delta Court Altamonte Springs, Florida 32714 (eServed) Robert Antonie Milne, Esquire Office of The Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 (eServed) J. Layne Smith, General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Robin Barineau, Executive Director Division of Professions Building Code Administrators and Inspectors Board Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
