The Issue Whether Petitioner is entitled to additional credit on the challenged examination for licensure.
Findings Of Fact Petitioner, John R. Maroney, is a candidate for licensure as an electrical contractor low voltage applicant. He sat for examination in January 1999. His candidate number is 240024. Respondent, Department of Business and Professional Regulation, Board of Electrical Contractors, is the state agency charged with the responsibility of licensing applicants such as Petitioner. On the examination challenged, Petitioner received a score of 73.00, which was designated a failed status. In order to achieve a pass status Petitioner was required to obtain a score of 75.00. Petitioner timely challenged the results of two questions on the January 1999 examination. First, as to question 49, Petitioner maintained that his answer was reasonable as none of the answers given were correct. Question 49 required applicants to perform a mathematical computation and to select the best answer from those offered. The answer selected by Petitioner was $6.59 from the correct answer. The answer, the one that was given credit, was $4.77 or $1.47 from the correct answer, depending on whether the individual was paid for over-time at a higher rate. In either case the Department’s "correct" answer while not being mathematically accurate was the closer answer to a properly computed answer. The instructions on the examination directed applicants to choose the best answer to each question posed. Thus, while not mathematically accurate, Respondent’s answer to question 49 was the best from those offered. Choosing the best answer was also the issue in question 84 as none of the answers given on the examination accurately describes the cause of the problem. In making his selection, Petitioner admitted he had guessed, as he could not determine how any of the provided answers could decipher the problem he was to solve. Petitioner’s argument in this regard is well made since none of the answers given are attributable to the conditions described. Nevertheless, by process of elimination, an applicant could rule out the options offered by recognizing that two choices related to relay 1 could not contribute to the problem described. As Petitioner selected one of these clearly erroneous options, he cannot be given credit for the choice. As to the two remaining options, while inaccurate, the option that received credit was more likely related to the problem as the stop switch (stop 3) being faulty could cause the described problem if the circuit were to continue to be closed. Petitioner’s answer that described the problem on a relay unrelated to stop 3 would not be the best answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, enter a final order dismissing Petitioner’s challenge to the examination for licensure. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 15th day of December, 1999. COPIES FURNISHED: Lynne A. Quimby-Pennock Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 John R. Maroney 9641 Northwest 39th Court Cooper City, Florida 33024 Ila Jones, Executive Director Board of Electrical Contractors Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue May Respondent's contracting license be revoked, suspended or otherwise disciplined? EVIDENCE AND PROCEDURE Petitioner presented the testimony of the following witnesses: Randall F. Patterson; Bob R. Pope; Roberta Ballenger; Joel A. Dean; and Victor F. Boucher. Petitioner's exhibits number one through fourteen were admitted into evidence. Respondent was not present, put on no evidence, and submitted no after- filed proposals. Petitioner filed the transcript of proceedings on October 17, 1985, and filed proposed findings of fact and conclusions of law styled "Petitioner's Proposed Recommended Order" on November 8, 1985. Although additional time for filing proposals was neither applied-for nor granted, these proposals have been considered, and are ruled on within the Appendix to this Recommended Order.
Findings Of Fact Respondent is, and at all times material to the Administrative Complaint, was a registered residential contractor in the State of Florida having been issued license number RR 0032683. On August 7, 1982 Respondent d/b/a Future Homes of America Construction Company, Inc. contracted with Victor Boucher for the construction of a single family residence at 822 Fairview Avenue, Altamonte Springs, Florida. Section 14.5 of the Fixed Price Construction Agreement provided: The owner will, as agreed to by the contractor, request the contractor to obtain payment and performance bonds, issued by a surety and in amounts acceptable to owner, guaranteeing the full performance of contractor's payment and performance obligations hereunder. (Pet. Exh. 1, Pet. Exh. 9). Article 14.5 of the construction contract required Respondent to obtain a payment and performance bond. Respondent failed to obtain a payment and performance bond. During the construction of the home, Boucher asked Respondent whether a payment and performance bond had been obtained. Boucher wanted to see the bond because he was concerned about Respondent actually finishing the project. In response to Boucher's request, Respondent indicated a bond had not been obtained; however, Respondent assured Boucher that a payment and performance bond would be obtained. On April 7, 1953 Respondent and Boucher obtained a construction loan in the amount of $54,400.00 from the American Savings and Loan Association of Florida, Winter Park, Florida. The construction loan was secured by a mortgage on the property located at 522 Fairview Avenue, Altamonte Springs, Florida. The proceeds of the construction loan were paid out in draws. American Savings and Loan Association of Florida paid the contract draws directly to Respondent. On August 29, 1953 Respondent executed an affidavit in support of final construction draw. American Savings and Loan Association of Florida required the affidavit as a precondition to making final disbursement to Respondent of the $4,338.50 remaining on the construction loan. The affidavit provided in pertinent part: 4. The undersigned swears that construction of the improvements to the PROPERTY has been fully completed in accordance with the plans and specifications therefore,...that all persons furnishing labor or materials, engaged as subcontractors or contracting directly with the owner of the PROPERTY in connection with said improvements, except the following, identified by name, address and amount due: [none known] have been paid in full and no person, firm or corporation has or holds any claim or lien against the PROPERTY for labor or material in connection with said improvements. Boucher was also required to sign the affidavit referred-to in Paragraph 5, above, in support of the final construction draw. Boucher's signature was required in support of the affidavit for final construction draw because Boucher had previously contacted the savings and loan association with regard to freezing the disbursement of construction funds. His request to freeze disbursements was made because Boucher was under the impression Respondent had moved to Miami and Boucher's attempts to contact Respondent had proven unsuccessful. Prior to executing the affidavit, Respondent told Boucher that certain subcontractors had not been paid. Nonetheless, Boucher, contrary to advice of legal counsel signed the affidavit knowing that certain subcontractors had not been paid and therefore knowing he was making a false affidavit. Respondent convinced Boucher that the final draw would be utilized to satisfy the remaining subcontractors and materialmen. Respondent's Answer pleads accord and satisfaction as an affirmative defense that Boucher agreed to pay off all bills of Overhead Door Co., Future Plumbing, Quality Fiberglass, and Patterson Well Drilling but Boucher's testimony that he, Boucher, insisted Respondent meet him to pay off all subcontractors out of the final draw and Respondent did not do so, overcomes any burden of proof problems raised by this affirmative defense. (See "Conclusions of Law.") On November 29, 1983 Patterson Well Drilling Company filed a claim of lien against Boucher's property. The claim of lien represented materials and labor furnished to Respondent in connection with the construction of the Boucher residence. The claim of lien was in the amount of $1,510.00. Although the claim of lien under oath of President Randall F. Patterson states that the services were provided between September 9 and September 12, 1983, Boucher testified that Patterson's services were actually provided prior to the August 29, 1983 execution of the affidavit in support of final construction draw. Randall F. Patterson's testimony tends to support this timeframe set out by Boucher, and although the difference in dates between Mr. Patterson's affidavit within the claim of lien and his oral testimony at formal hearing might otherwise present a credibility issue, his explanation at hearing coupled with Boucher's explanation of how he relates the dates persuade the undersigned that Patterson Well Drilling Company installed the well prior to August 29, 1983. Respondent failed to pay Patterson prior to executing the bank affidavit. Respondent also failed to pay Patterson from the funds received in the final construction draw. Boucher paid Patterson Well Drilling Company for the services represented by the claim of lien. A check substantiates that Boucher actually paid Patterson the amount of $1,562.40. Respondent contracted with Quality Fiberglass Industries to provide materials and services in connection with the construction of the Boucher residence. Respondent failed to fully reimburse Quality Fiberglass for the services and materials provided. On August 19, 1953 Quality Fiberglass Industries filed a claim of lien against the Boucher property for $219.00. Mr. Pope, Quality's representative, testified he was actually owed $325.00 and he has never been paid. Boucher testified he was required to pay the Quality Fiberglass lien prior to the closing on the home. There is no documentary evidence to reconcile this issue and in the absence of clear evidence that Boucher paid the fee, payment of the lien or the difference in amount is not proved. Overhead Door Company provided services to Respondent d/b/a Future Homes of America, Inc. in connection with the construction of the Boucher residence. On July 11, 1983 Overhead Door Company installed a garage door. Although contacted on several occasions, Respondent failed to pay Overhead Door Company $356.00 for the services provided. Overhead Door Company has not otherwise been reimbursed for the services provided. The construction plans for the Boucher home indicated a tar and gravel roof would be constructed over the patio. However, with the acquiescence of Mr. Boucher, Respondent placed rolled roofing rather than tar and gravel roofing on the patio. The construction plans were submitted in conjunction with the building permit application. According to Joel A. Dean, the county building department currently relies upon the construction plans in issuing the building permit. A contractor currently is required to notify the building department of any change or deviation from the submitted plans. This requirement enables the building department to control the type of building construction, the occupancy and use of the building, and ensures the buildings are constructed safe and watertight. Respondent did not notify the building department concerning the agreed roofing change as would be required by current requirements and requirements at the pertinent times under Section 114 of the Standard Building Code.
Recommendation That the Florida Construction Industry Licensing Board enter a final order suspending Respondent's contracting license for a period of two (2) years and imposing an administrative fine in the amount of $1,000.00, provided, however, if Respondent submits to the Board competent and substantial evidence of payment to Overhead Doors Co. of $356.00 and payment to Quality Fiberglass of $219.00, the period of suspension shall be reduced to one (1) year. DONE and ORDERED this 31st day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3835 Rulings on Petitioner's Proposed Findings of Fact According To the Paragraph Number assigned by Petitioner. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as not supported by the credible competent substantial evidence in the record as a whole as set out more fully in Finding of Fact Paragraph 9. Accepted. Accepted. Accepted. COPIES FURNISHED: W. Douglas Beason, Esquire Fred M. Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Michael Anguelo James Linnan 1415 West 28th Street Executive Director Apartment 4 Construction Industry Hialeah, Florida 33010 Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue in this case is whether the Electrical Contractors' Licensing Board should discipline the Respondent for violating section 489.533(1)(a), Florida Statutes (2013),1/ by violating section 455.227(1)(j), which prohibits "[a]iding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to this chapter, the chapter regulating the profession, or the rules of the department or the board."
Findings Of Fact The Respondent, Michael Ellis, is licensed in Florida as an electrical contractor and holds licenses EC0000680 and EC13003559. He has been licensed in Florida since 1986 and has not been disciplined prior to this case. In the summer and fall of 2013, the Respondent was the primary qualifying agent of M. Ellis Electrical, Inc. (Ellis Electrical). In the summer and fall of 2013, Clark Huls was not licensed as an electrical contractor in Florida. In August 2013, Ellis Electrical had a subcontract with Powerhouse, Inc. (Powerhouse), which had a contract with 7-Eleven, Inc. (7-Eleven), for the installation of hot food cabinets at several different 7-Eleven retail locations in Florida. The installation required electrical work (including subpanels, new circuits, outlets, and breakers) and had to be done by a licensed electrical contractor. Someone at Powerhouse referred Huls to the Respondent, and the Respondent hired him to do the installations for $1,400 for each of nine different 7-Eleven jobsites. It was the Respondent's initial intent to hire Huls as a subcontractor. The evidence is disputed and not clear as to exactly what Huls represented to the Respondent about his license status when the Respondent hired him. The evidence is clear that Huls did not provide him with licensure and insurance information at that time and was supposed to provide this information to the Respondent at the first jobsite. The Respondent did not initially check DBPR's website to verify Huls' license status, which was the prudent and appropriate thing for him to have done. The first work performed by Huls for the Respondent was on August 21, 2013. The Respondent was there to supervise and direct the work. Huls did not provide license and insurance information. By this time, the Respondent clearly knew or should have known that Huls was not licensed. At the third installation Huls performed, on August 24, 2013, the Respondent had an employee named Jason Ippolito deliver an employment package to Huls. Huls refused to complete and sign the employment paperwork because it would change the terms of his agreement with the Respondent to be paid $1,400 per jobsite. The Respondent allowed Huls to continue to work on installations while trying to resolve the subcontract/employment issue. In all, Huls completed nine installations between August 21 and September 3, 2013. When Huls asked to be paid $1,400 per jobsite, as originally agreed, the Respondent refused to pay because Huls was not licensed as a subcontractor and refused to complete the paperwork to be paid as an employee. Huls then placed liens on all nine 7-Eleven properties and contacted Powerhouse to be paid. In order to save its relationship with 7-Eleven, Powerhouse paid Huls $5,806 and deducted that amount from what it owed Ellis Electrical. On October 12, 2013, the Respondent filed a DBPR complaint against Huls for subcontracting without a license. DBPR filed an Administrative Complaint against Huls for unlicensed activity. Criminal prosecutions of Huls also were filed and were pending at the time of the final hearing in this case. In mitigation, in addition to his clean record as a long-time licensee, the Respondent presented that he was dealing with his wife's serious health issues during the summer and fall of 2013, which affected his ability to manage his jobsites. In addition, no consumer or member of the public suffered financial harm. Ultimately, the financial harm was borne by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors' Licensing Board find the Respondent, Michael Ellis, guilty as charged, fine him $1,000, require him to pay reasonable investigative costs, and take two additional hours of continuing education with an emphasis on laws and rules. Jurisdiction is retained for 30 days after the final order to determine reasonable investigative costs if the parties cannot reach an agreement. DONE AND ENTERED this 13th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2015.
The Issue The issues in this case are whether Respondent, who was never licensed as a contractor, engaged in the unlawful practice of contracting when he entered into (and attempted to perform under) an agreement to build a dental office; and whether, if Respondent is found guilty of unlicensed contracting, Petitioner should penalize him by imposing an administrative fine and assessing investigative costs.
Findings Of Fact Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to take punitive action against unlicensed persons who unlawfully engage in the business of contracting. At no time relevant to this proceeding was Respondent James Bresnahan ("Bresnahan") licensed, certified, or registered to do business as a contractor of any sort. In June 2007, Bresnahan entered into a contract with University Dental Health Care Center, Inc. ("University"), whereby, in exchange for University's agreement to pay Bresnahan a total of $42,350 in compensation for his work, Bresnahan promised to remodel a bay at the Shoppes of Rolling Hills ("Rolling Hills"), a shopping center located in Davie, Florida, where University planned to operate a dental office. The contract described the scope of the work that Bresnahan would perform as follows: Remove all walls per plans. Redesign interior space to reflect new office plans. New electrical per plans. New plumbing per plans. New droped [sic] ceiling and lighting per plans per Ken. Finish all walls with new paint colors per Angela. New flooring [illegible] tile to be picked by owner. Install new compressor bracket on back of building. Bring all utilities to dental chairs (vac[uum], water, electric, air and drain; five chairs per plans per Ken. Proposal is for drawings and permits and construction of office. Cabinets and installation by others. Equipment and plumbing fixtures by others per Ken. Handycap [sic] bathroom by Shops [sic] of Rolling Hills. (Quoted text reformatted from "all uppercase" to "sentence case.") Bresnahan had not previously undertaken a construction project such as this. He had, however, overseen the build-out of his wife's bakery, which was located in Rolling Hills. For that project, Bresnahan had engaged a general contractor, Johnson Beckett, Inc. ("Johnson Beckett"). Bresnahan, in other words, had been the client, Johnson Beckett the builder. Bresnahan had been introduced to University's principals by their mutual landlord, who——perhaps being unaware of Bresnahan's actual role in the construction of the bakery—— touted Bresnahan as a "builder." Bresnahan had not advertised or promoted himself as a builder, but neither did he disclaim such expertise upon meeting the principals of University; to the contrary, he ultimately offered to build a dental office for University, leading to the contract described above. On June 21, 2007, upon entering into the construction agreement with Bresnahan, University made a down payment of $10,000 to Bresnahan. Because he was not in fact a builder, Bresnahan's plan was to use this money, and other payments he would receive from University, to hire Johnson Beckett to act as the "general contractor" for all aspects of the project except the plumbing and electrical work, for which Bresnahan intended to engage separate subcontractors. Johnson Beckett would not bid a fixed price for the project, however, without a proper construction plan. Consequently, Bresnahan entered into a contract (in his personal capacity, not as an agent for University) with Johnson Beckett, pursuant to which the general contactor was to obtain a blueprint for the dental office project, appropriately sealed by a licensed engineer. For this drafting work, Bresnahan agreed to pay Johnson Beckett $5,000. As Johnson Beckett proceeded, it encountered some difficulty in obtaining information, which the engineer needed, concerning the equipment that would be installed in the dental office. Meantime, little or no work was being accomplished at the jobsite, which began to create tensions between Bresnahan and University. Nevertheless, University gave Bresnahan another check, for $5,000, on July 19, 2007. As the weeks passed, however, University became increasingly frustrated at the lack of tangible progress; it began to lose patience with Bresnahan. When Linda Commons, an owner of the company, started pressing Bresnahan for an accounting, the relationship deteriorated further. On or around August 21, 2007, Bresnahan sent University a letter that announced he was unilaterally canceling their contract. Thereupon, Bresnahan abandoned the job. As of the final hearing, Bresnahan had not refunded to University any of the compensation he received. In connection with the instant matter, the Department has incurred investigative costs in the amount of $209.55. Ultimate Factual Determinations Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University constituted the practice of contracting under Florida law. Thus, Bresnahan, who was not a licensed contractor, is guilty of unlicensed contracting, as charged in Count I of the Administrative Complaint. Bresnahan's negotiation of, entry into, and attempt to perform under the construction agreement with University also constituted the practice of electrical contracting under Florida law. Thus, Bresnahan, who was not a licensed electrical contractor, is guilty of unlicensed electrical contracting, as charged in Count II of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order which: (1) finds Bresnahan guilty of (a) engaging in the business of contracting without a license and (b) practicing electrical contracting without a license; (2) imposes an administrative fine of $10,000 for these incidents of unlicensed contracting; and (3) assesses investigative costs in the amount of $209.55. DONE AND ENTERED this 12th day of September, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 James Bresnahan 4950 Southwest 70th Avenue Davie, Florida 33314 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all time material hereto, Respondent, Ronald J. Gurney, has been registered as an electrical contractor in the State of Florida, having been issued license number ER0004532, and held certificates of competency as an electrical contractor issued by Dade County and Broward County, Florida. By letter of July 25, 1989, Metropolitan Dade County charged the respondent with violating various sections of Chapter 10, Dade County Code. Specifically, such letter charged that between August 22, 1988, and June 16, 1989, with regard to jobs at 1520 Euclid Avenue and 531-41 16th Street, Miami Beach, Dade County, Florida, the respondent did: . . . violate Section 4505.5(a) of the South Florida Building Code (SFBC) by failing to obtain the mandatory rough inspection of work performed under Permit . . . said violation evidencing a failure to maintain the affirmative conditions of honesty, integrity and good character as required for the issuance of a certificate of competency under Section 10-16(a) of the Code of Metropolitan Dade County. . . . unlawfully violate Section 10-22(b) of the Code of Metropolitan Dade County . . . [by] abandon[ing] without legal excuse . . . [such] . . . electrical job[s]. . . . . . . unlawfully violate Section 10-22(g) of the Code of Metropolitan Dade County . . . [by] fail[ing] to fulfill . . . [his] . . . contractual obligation to complete . . . [such] . . . electrical job. . . . Such letter further advised respondent that a formal hearing would be held on September 5, 1989, before the Construction Trades Qualifying Board (CTQB) to consider such charges, and what, if any, disciplinary action should be taken. On September 5, 1989, respondent appeared for the hearing, as scheduled, however, because the complaining witnesses did not appear, the CTQB continued the hearing. Thereafter, the hearing was rescheduled for November 21, 1989, and respondent did not appear. Notwithstanding, the CTQB proceeded with the hearing, and following its consideration of the evidence found that respondent had violated Sections 10-16(a), 10-22(b) and 10-22(g), Dade County Code, and issued a reprimand, fined respondent $2,500.00, suspended his certificates for three years, and revoked his certificates. By letter of December 1, 1989, Dade County advised respondent of the foregoing decision, and advised him of his right to appeal the decision of the CTQB. Respondent did not appeal such decision but, rather, filed a motion, through counsel, with the CTQB to vacate its decision based on respondent's contention that he did not receive notice of the November 21, 1989, hearing. Such motion was denied on January 9, 1990, and respondent did not appeal or otherwise seek review of such decision. At hearing, respondent offered proof, which is credited, that as a consequence of the action taken by Dade County he lost his position as Chief Electrical Inspector for the City of Hialeah; a position that paid $50,000.00 a year. Here, there was no suggestion or proof that respondent had previously been the subject of any prior disciplinary proceeding. To the contrary, the only proof of record on this issue was offered by respondent, and demonstrated that the action brought by Dade County was his first offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds the respondent guilty of having violated the provisions of Section 489.533(1)(n), Florida Statutes, which imposes an administrative fine against him in the sum of $250.00, and which places his license on probation for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: 1 & 2. Addressed in paragraph 1. 3-7. Addressed in paragraph 2, otherwise rejected as unnecessary detail. Addressed in paragraph 3. Rejected as not supported by competent proof. 10-14. Addressed in paragraph 3. 15-19. Addressed in paragraph 4. COPIES FURNISHED: Robert G. Harris, Esquire Senior Attorney Department of Professional Regulation 1620 Medical Lane, Suite 148 Fort Myers, Florida 33907 Ronald J. Gurney 11201 Southwest 55th Street Box 79 Miramar, Florida 33025 Daniel O'Brien, Executive Director Electrical Contractors Licensing Board Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues are as follows: Is the Respondent liable to the Petitioner for $140.00 for 3,500 pounds of unacceptable potatoes on Load number 15? Is the Respondent liable to the Petitioner for $1,792.00 for Load number 16? Does the contractual agreement provide for FOB payment or payment based upon delivered weight? Can the Respondent "back charge" the Petitioner for $964.06 freight charges, $60.00 for dumping charges, and $33.40 for U.S. Department of Agriculture inspection costs?
Findings Of Fact The Petitioner, Lee A. Maltby and Sons, Inc., doing business as Poa-Boy Farms, is a producer of agricultural products in Florida. The Respondent, Kenneth Rose Company, Inc., is a licensed dealer in agricultural products, pursuant to Chapter 604, Florida Statutes. The Respondent was bonded, pursuant to Chapter 604, Florida Statutes, as such a Florida dealer during the period of time between January 24, 1978 and May 23, 1978. On or about January 24, 1978, the Petitioner, as seller, and the Respondent, as buyer, entered into an executory contract for the Petitioner to deliver "10,000 CWT of chipping potatoes, 85 percent or better US. number 1," at $4.00 FOB. As to terms, the contract designated "usual." As to special terms, the contract stated "Potatoes will be paid on the basis of delivered weight as evidenced by a certified weight ticket prepared at the time and place of delivery." Shipment was "May, 1978 (Last week of April if possible)." On or about the same day, the Respondent entered into an executory contract with Cloud Produce, Inc. for the same shipment, excluding the "special terms." Undisputed testimony was that the price was at a rate of $.10 CWTFOB. Cloud Produce, Inc. was a corporation authorized to do business in the State of Florida as a dealer in agricultural products under Chapter 604, Florida Statutes. Cloud Produce, Inc. agreed to deliver the chipping potatoes to Frito- Lay, Inc., a corporation with a potato chip manufacturing plant in Louisville, Kentucky. The Respondent also contracted with Montgomery and Rose, Inc., a Florida corporation authorized to do business under the laws of the State of Florida as a truck broker, to transport the potatoes to Louisville, Kentucky. The broker contracted with an independent trucking firm known as "R & L" to transport and deliver the potatoes to Frito-Lay in Louisville, Kentucky. The potatoes designated as Load number 15 were delivered to Frito-Lay in Louisville, Kentucky, on May 18, 1978. There was no report to Petitioner that there was a problem with said load, and there was no USDA inspection made. Evidence submitted showed that 3,500 of the 43,620 pounds of potatoes contracted to be delivered were dumped. The potatoes designated as Load number 16 were loaded on an R & L truck late Friday, May 19, 1978. The R & L truck was weighed in Hastings, Florida, on May 19, 1978, passed a Florida inspection station on May 20, 1978, and arrived at the Frito-Lay plant in Louisville, Kentucky, at approximately 7:00 a.m. on May 23, 1978. The load of potatoes was rejected by Frito-Lay "due to wet breakdown." The report of Frito-Lay stated that the potatoes were in a very poor condition with rot from 30 to 80 percent. Frito-Lay ordered the R & L trucking company to remove the load from the Frito-Lay property due to its offensive odor. The Petitioner and the Respondent discussed the problem on May 23, 1978. The Petitioner requested that the Respondent re-route the potatoes to Muncie, Indiana. The Respondent was not able to get this instruction through to the trucking company before the load was dumped, and within hours, it informed the Petitioner that the potatoes were no good, that the expense was prohibitive, and that the potatoes had already been dumped. Part of the problem was the demand by Frito-Lay that the load be removed quickly because of the odor and leakage at the plant in Louisville, Kentucky, which adjoined a baseball field. The USDA Inspection Office was closed when called on May 23, 1978, but it inspected the load on May 24, 1978 and reported "Condition: Soft rot 90 percent, slimy soft rot, mostly in advanced, some in early stages. Remainder stock: Firm." The following transpired: The United States Department of Agriculture charged an inspection fee of $33.40 for its inspection of the potatoes on May 24, 1978. The USDA billed Frito-Lay, Frito-Lay billed Cloud Produce, Inc., and Cloud Produce, Inc. billed the Respondent for the inspection fee. R & L trucking company paid $60.00 for unloading the potatoes, Montgomery and Rose, Inc. paid R & L $60.00 for such unloading, plus $964.06 for hauling the potatoes to Louisville, Kentucky, and the Respondent paid this amount to Montgomery and Rose, Inc. The Respondent then "back charged" the Petitioner for the following: $140.00 for the load designated number 15; $1,792.00 for the value of the potatoes on Load number 16; $964.06 for freight charges; $60.00 dumping charges; and $33.40 inspection. These charges totaled $2,989.46, and this amount of money was retained by the Respondent as a set-off from the entire contract between the parties, which included Loan number 22, with which there was no problem. By letter to the Respondent dated July 25, 1978, the Petitioner demanded the money that is the subject of this hearing. The Petitioner stated that he did not believe that Load number 16 was his produce inasmuch as he had had no other complaints as to his produce from other receivers before or after said load. No evidence was introduced to substantiate the position of the Petitioner, and substantial evidence was introduced that Load number 16 was, in fact, the load that was ultimately dumped. The Petitioner presented a witness who testified that Montgomery and Rose, Inc. had salvaged a portion of Load number 16 after it was dumped. The Petitioner felt that it was unfair that one firm had made a profit from the Petitioner's loss. Montgomery and Rose, Inc. was not joined as a party. The Respondent presented undisputed testimony that it is customary to "charge back" a broker and a producer where the produce does not meet specifications. There was no evidence presented that the Petitioner was not familiar with the custom of the trade or the laws and regulations of the Perishable Agricultural Commodities Act, or that the Petitioner had reason to believe that it would not be liable for freight and brokerage charges if the potatoes were not sold. The contract between the parties merely stated that terms were "usual." The usual charges on such a transaction include USDA inspection fees, if needed, and freight and brokerages charges.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioner against Respondent in the amount of $140.00 deducted for the price of potatoes delivered designated as Load number 15. It is further RECOMMENDED that a Final Order be entered discharging the Respondent and its surety from any further liability. DONE and ENTERED this 8th day of June, 1979, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1979. COPIES FURNISHED: Ronald E. Clark, Esquire P.O. Drawer V Palatka, FL 32077 Alan B. Fields, Jr., Esquire P.O. Drawer F Palatka, FL 32077 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 530, Carlton Building Tallahassee, FL 32301
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
The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is the state agency charged with the duty and responsibility of regulating the practice of contracting and electrical contracting pursuant to Chapters 20, 455 and 489, Florida Statutes. At all times material to the allegations of the Administrative Complaints, Antoney Manning was not licensed nor had he ever been licensed to engage in contracting as a State Registered or State Certified Contractor in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. At all times material to the allegations of the Administrative Complaints, Manning Builders did not hold a Certificate of Authority as a Contractor Qualified Business in the State of Florida and was not licensed, registered, or certified to practice electrical contracting. Respondent, Antoney Manning, was at all times material to this proceeding, the owner/operator of Manning Builders. Respondent is in the business of framing which includes framing, drywall, tile, trim work, and painting. A document which is in evidence purports to be a contract dated September 5, 2004, between Manning Builders and Ms. Gwendolyn Parker, for the construction of a 14-foot by 14- foot addition in the rear corner of Ms. Parker's house located at 8496 Southern Park Drive in Tallahassee, Florida. The contract identifies Manning Builders as the "contractor." The contract price is $15,000. Unfortunately, only the first page of the contract is in evidence. However, Respondent acknowledges that he and Ms. Parker entered into a contract regarding the 14-foot by 14-foot addition to Ms. Parker's home. Respondent insists that he informed Ms. Parker that he was not a certified general contractor, but that he could find a general contractor for her. When that did not work out, Respondent told Ms. Parker that she would have to "pull" her own permits and that he could do the framing. He also told her that he would assist her in finding the appropriate contractors to do the electrical work, plumbing, and roofing. Ms. Parker did not testify at the hearing. On September 7, 2005, Respondent signed a receipt for $7,500 for a "deposit on addition (14 x 14)." The receipt identifies Ms. Gwendolyn Parker as the person from whom the money was received by Respondent. Respondent acknowledges finding an electrical contractor to perform the electrical work on the addition. However, he insists that he did not hire the electrical contractor but found one for Ms. Parker to hire. He gave the name to Ms. Parker but she apparently did not contact him. In any event, the electrical work was never done on the addition. Respondent completed the framework on the addition. Respondent did not build the roof, as he was aware that would require a roofing contractor. Work on the project ceased before the addition was finished. Ms. Parker's home suffered rain damage as a result of the roof not being completed. There is nothing in the record establishing the dollar amount of damage to her home. The total investigative costs to the Department, excluding costs associated with any attorney's time, was $360.59 regarding the allegations relating to Case No. 06- 0601, which charged Respondent with the unlicensed practice of contracting. The total investigative costs, excluding costs associated with any attorney's time, was $140.63 regarding the allegations relating to Case No. 06-0602, which charged Respondent with the unlicensed practice of electrical contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order imposing a fine of $1,000 for a violation of Section 489.127(1); requiring Respondent to pay $360.59 in costs of investigation and prosecution of DOAH Case No. 06-0601, and dismissing DOAH Case No. 06-0602. DONE AND ENTERED this 28th day of June, 2006, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Antoney Manning 11865 Register Farm Road Tallahassee, Florida 32305 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
