Findings Of Fact Petitioner has been licensed to practice dentistry in the State of Massachusetts since 1953. Since 1966, Petitioner has limited his practice to oral and maxillo-facial surgery. In June of 1976 petitioner took part as a candidate for licensure in a licensure examination administered by Respondent. On this examination, a final score of 75 was needed to pass the "clinical" or "practical" portion of the examination. Petitioner was awarded a failing grade of 59.69. By this proceeding, Petitioner maintains that the grades he was awarded on the Amalgam Preparation procedure, the Amalgam Restoration procedure, and the Cast Gold Final Restoration procedure were unjust, arbitrary and capricious. The clinical examination administered by Respondent in June, 1976, consisted of the following procedures, weights, and percentages: Percentage of Casts and Wax Pattern 1/2 Casting 1/2 10 percent Professional Evaluation 3/3 15 percent Gold Inlay Restoration Preparation 1/2 Inlay Cemented 1/2 25 percent Amalgam Restoration Preparation 2/3 Final Restoration 1/3 25 percent Periodontal Evaluation Diagnosis 1/3 Periodontal Procedure 2/3 25 percent Procedure Weight Final Grade Laboratory Petitioner's final score on the clinical portion of the June, 1976, examination was based on the following scores: 1st 2nd Percentage Exam- Exam- of Final Procedure iner iner Total Grade Grade Laboratory Casts and Wax Pattern (1/2) 1 2 Casting (1/2) 2 2 10 percent 59.38 Professional Evaluation (3/3) 3 3 15 percent 75.00 Gold Inlay Restoration Preparation (1/2) 2 3 Inlay Cemented (1/2) 0 0 25 percent 53.13 Amalgam Restoration Preparation (2/3) 0 0 Final Restoration (1/3) 2 2 25 percent 33.50 Periodontal Evaluation Diagnosis (1/3) 4 N/A Periodontal Procedure (2/3) 4 3 25 percent 83.33 59.69 During the 1976 examination, Respondent utilized the following grading system for the clinical examination: - An unethical or unacceptable performance - Work falling far short of acceptable standards - Work falling short in one or more aspects of being acceptable - Minimally acceptable work - Work beyond the bare minimum of acceptability - Work demonstrating outstanding skill Prior to the clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each subject, the procedures to be used in performing each procedure, the criteria to be used in grading, and the grading system to be utilized by Respondent. The clinical portion of the examination for each candidate took two days and involved approximately 400 to 450 candidates and 20 to 22 examiners. Except for the diagnosis portion of the periodontal procedure, each clinical procedure performed by a candidate was independently graded by two different examiners, and the two grades were then averaged to determine the total grade. However, if grades given by the two examiners were more than one grading criteria apart, and the examiners could not resolve their evaluative differences, a third examiner was brought in to resolve any remaining dispute as to the grade to be awarded. Candidates for the June, 1976, examination were required to perform a Class II Amalgam Restoration on a tooth which had occlusal and proximal contact. The tooth to be used by the candidate was not to contain extensive decay and an ideal cavity preparation with minimal outline form and cavity depth was to be prepared by the candidate. The grading criteria for the Amalgam Preparation were contained on the grade sheets' utilized by the individual examiners. These criteria were as follows: outline form; depth preparation; retention form; marginal finish; unsupported enamel; caries; debris; and mechanical exposure. Only leaving caries in the preparation or causing a mechanical exposure of the nerve of the tooth required an examiner to give a candidate an automatic zero for the preparation. However, any number or combination of missed criteria, depending on the degree of error, could result in a grade of zero. Because of the number of criteria involved, and the degrees to which they could be satisfactorily or unsatisfactorily performed, there existed an infinite variety of combinations of missed criteria, and degrees of performance, that could result in a zero or a failing grade. Petitioner received grades of zero and zero, for an overall score of zero on the Amalgam Preparation. Petitioner's grade sheets for this procedure as well as Respondent's records identifying the examiners for this procedure were not available at hearing in this cause because they had been previously destroyed in the normal course of the biennial purge of Respondent's examination records pursuant to Chapter 466, Florida Statutes. As a result, it is not possible to determine why a particular grade was given on this portion of an examination administered six years ago, without the availability of the particular grade sheet to indicate criteria missed by Petitioner. For example, it cannot be determined with any degree of accuracy the roughness of the pulpal floor of the tooth at the time of grading, whether any debris was left in the preparation at the time it was graded, whether there were adequate buccal, gingival or axial retention points present, and whether they were overcut, whether a buccal or lingual cusp was undermined, whether the enamel was undercut on the occlusal surface, among a variety of other pertinent points. None of these criteria can adequately be assessed by way of an x-ray examination some six years after the procedures were performed. In addition to the aforementioned procedure, candidates at the June, 1976, examination were also required to place an amalgam restoration in the tooth they had prepared for the Amalgam Preparation procedure. The grading criteria for the final restoration were contained on the grade sheets utilized by the examiners, and were as follows: functional anatomy; proximal contour; contact; margin; gingival overhang; and management of soft tissue. Unlike the Amalgam Preparation, failure in any given criteria did not result in an automatic zero for this procedure. However, like the preparation phase of the examination, the restoration grade was also determined by a variety of combinations of criteria, depending upon the degree of performance. Again, because of the number of criteria involved and the degrees to which they could be successfully or unsuccessfully performed, there were an infinite variety of combinations of missed criteria and degrees of deficiencies that could result in a failing score. Petitioner received grades of two and two, for an overall average score of two on the Final Restoration. As in the preparation procedure, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for this procedure were not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. The record in this cause establishes that it would not be possible with any degree of accuracy to determine why a particular grade was given on an examination administered six years ago without the grade sheet to indicate the particular criteria missed by the candidate, or even the identity of the examiners who awarded that grade. X-ray examination of the patient with the restoration in place could determine criteria such as functional anatomy, proximal contour, margins, and gingival overhang. However, criteria such as management of soft tissue is obviously not now discernible in that the tissue would have healed since the examination. Neither can the criteria of adequate contact be evaluated now some six years after the procedure was performed. In addition, because of various changes which could have occurred during the lapse of time between the administration of the examination and the present time, criteria such as functional anatomy and adequacy of margins can not now be determined with any degree of accuracy. Candidates at the June, 1976, examination were also required to prepare a tooth for a Class II cast gold restoration. This restoration was required to have occlusal and proximal contact and was to be cemented in the patient's mouth. Grading criteria for the final gold restoration were as follows: casting not seated; margins; functional anatomy; proximal contours; contact; surface finished; and, management of soft tissue. According to Respondent's criteria, if the gold inlay produced by a candidate was not satisfactory to be cemented as a permanent restoration, a grade of zero was mandatory. If the inlay was only cemented temporarily, a grade of zero was still required. As in other areas of the examination, the final gold restoration grade could be determined by any number or combination of criteria, depending upon the degree of error. Petitioner received grades of zero and zero, for an overall average score of zero on the final gold restoration. Petitioner admits that the inlay he prepared at the examination would not seat, and that he placed a temporary restoration in the patient's mouth. He contended, however, that he successfully performed some of the grading criteria and should not, therefore, have received a grade of zero. However, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for the procedure were again not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. As with the preceding procedures, it is not possible to determine why a particular grade was given on this portion of the examination without the particular grade sheet involved to indicate missed criteria. At all times material hereto, candidates were allowed access to their examination grades upon request, and were notified of their right to an examination review with an examiner. In the event of such review, the candidate and the examiner reviewed the candidate's grade sheets, x-rays and models from the examination, and the examiner indicated to the candidate the reasons for the awarding of a particular score. In addition, at all times material to this proceeding Petitioner had as an available remedy an administrative hearing pursuant to the requirement of Section 120.57, Florida Statutes. Respondent was, in fact, contacted by Petitioner's attorneys in 1979 regarding the Petitioner's examination scores. All available examination documents were produced for Petitioner's attorneys in 1979, but Respondent was at no time advised that an examination challenge was intended, nor did Petitioner or his attorneys request that examination documents pertinent to Petitioner's performance not be destroyed. However, it is likely that at the time Respondent was contacted by Petitioner's attorneys his examination records had already been destroyed since approximately three years had passed since the administration of the examination, and Respondent's policy is to destroy those documents every two years. Petitioner received his 1976 examination results approximately six weeks after the examination had been administered. According to Petitioner's testimony, he waited until 1981 to initiate this proceeding in the belief that the Florida Legislature would amend Chapter 466, Florida Statutes, to include licensure by reciprocity. That legislative action has not been forthcoming.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, was the agency in Pinellas County, Florida responsible for the county-wide certification of contractors and the regulation of the contracting profession in Pinellas County. Respondent was certified as a building contractor in Pinellas County under license C-1804, and was the qualifying contractor for C&H Custom Homes, Inc., with which the complainant entered the contract in issue. On May 5, 1994, John H. and Katherine L. Buntrock and Diane M. DiBiccari entered into a purchase agreement with C&H Homes for the construction of Model 1523 with extended den, a residence to be erected at Lot 5, Maximo Moorings Bayview Addition in St. Petersburg, for a contract price of $130,000. The purchasers put $100.00 down at the time the agreement was signed, with the remaining balance of $129,900 to be paid through subsequent cash payments and a mortgage. The contract, which was signed by Respondent for C&H Homes, Inc., provided for the project to be completed within 150 days from the start of construction. Mr. Buntrock made subsequent arrangements with his bank for future draws by the contractor for the cost of construction. Somewhat later, Respondent drew $8,040 pursuant to those arrangements from the Barnett Bank, Mr. Buntrock's bank. After several weeks went by without any work being done, Mr. Buntrock contacted the bank and was told about the Respondent's initial draw. Buntrock then contacted the Respondent who said he was busy on a project and would start work on Buntrock's project when he finished his current project. Respondent indicated he had had fill dirt placed on the lot in anticipation of commencement of construction which, in fact, he did not do. He did have dirt delivered to the general area, but it cannot be determined if that dirt was for this project or other projects Respondent was working on. Respondent, however, did not pay the subcontractor for any dirt. Mr. Buntrock later paid the subcontractor the sum of $1,718.20 for the dirt. Respondent also arranged with an architect to modify plans for this particular unit for a price of $500.00 which he also did not pay. The plans were modified as requested, but no permits were ever pulled by Respondent or the architect for this project. After some time had passed without any work beginning on the property, Mr. Buntrock consulted his attorney who wrote to Respondent demanding an explanation. Aside from phone calls from the Respondent in response and many promises by the Respondent to start the project, no work on it was done by Respondent or anyone on his behalf. Finally, on October 21, 1994, more than five months after the contract was signed, when no construction had been started by the Respondent, Mr. Buntrock's attorney advised the Respondent not to do any work pursuant to the contract. Mr. Buntrock then hired Jeff Adams, another contractor, to do the work originally called for under the contract with the Respondent. When Mr. Adams was contacted with regard to taking over this project, he was told by Buntrock's attorney and the bank that the site work and the fill dirt had been paid for. This was not true. All Respondent had done was to push debris from two adjoining lots, on which he had been building, onto the Buntrocks' lot. No sitework other than scraping and clearing was done. No survey had been done and no pad building had been done. The architect's plans were merely a stock set of plans with annotations of what the Buntrocks wanted placed on them. No drawings were done specifically for this construction. The $500.00 previously paid was for making prints of the plans which had been ordered by the Respondent and which, incidentally, were not correct. Mr. Adams had to obtain additional dirt for the building site because much more was needed than what had been procured. He contacted the same subcontractor used by Respondent and was told that the dirt that was on site had not been paid for. The subcontractor threatened to file a lien on the property if it was used. Mr. Buntrock thereafter authorized Adams to pay for the dirt for which he would be reimbursed. Mr. Adams also contacted the architect who refused to release a good set of plans for this project until he was paid for those he had already provided. Once Mr. Adams started work, he finished the project within ninety days. The more than five months that Respondent consumed without working on the project was neither justified nor normal practice within the trade.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Construction Licensing Board enter a Final Order finding Respondent guilty of the offenses alleged and imposing an appropriate penalty which may include revocation of Respondent's license and imposition of an administrative Fine of $5,000.00. DONE and ENTERED this 6th day of June, 1996, 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 6th day of June, 1996. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643-5116 William H. Howell C & H Homes, Incorporated 7542 Cumberland Court Largo, Florida 34647 Howard Bernstein Senior Assistant County Attorney City Attorney's Office 315 Court Street Clearwater, Florida 34616-5165
Findings Of Fact At all times pertinent to the issues herein, Respondent was a certified general contractor in the State of Florida having been issued license Number CG C017772. On April 13, 1986, the Respondent, Richard T. Warnky, entered into a written contract with Jackson S. and Muriel Boyer to construct a home for them on Block 1244, Lots 7 and 8, Unit 19, Cape Coral, Florida, otherwise known as 2414 S.E. 28th Street for a contract price of $95,295.00. The Boyers gave Respondent a $550.00 down payment prior to signing the contract and at the time of signing, gave him an additional 10 percent of the contract price, or $9,529.50. The contract called for the payment of an additional 10 percent at commencement of construction and this payment was made at ground breaking. When the plumbing was roughed in and the slab poured, according to the contract, the Boyers paid Respondent an additional 10 percent and an additional 20 percent, or $19.059.00 when the masonry work was completed and the lintel poured. The contract called for three additional payments of 20 percent and two 15 percent payments, but for reasons subsequently to be discussed, none of these three payments was made. The contract called for the house to be completed in eight months, (240 days). According to Mr. Boyer, the Respondent left town for 8 weeks as soon as he had been paid the first 10 percent payment. Respondent claims that he was out of town for one week during which time he took ill and was physically unable to begin construction for an additional seven weeks. He also contends that he did not want construction to start without his being there to supervise it. Respondent's version of this situation is accepted. From the beginning of construction, Mr. and Mrs. Boyer had questions concerning the quality of the work being done When the slab was poured, it had holes in it and showed hills and valleys. Nonetheless, it passed inspection by the building inspector and the block work started. Pictures taken by Mr. Gogel, the licensing inspector for the City of Cape Coral at the request of Mr. Davenport, the building official, in July, 1986, reflect numerous deficiencies in the construction. They show large gaps in the vertical block joints; a lateral deflection in the tie beam poured at the top of the top course of blocks; blow out of the frame for the tie beam resulting in concrete running down the block walls; displacement of the tie beam which shows bulges and deformities; loose mortar in joints of the fifth course of blocks from the bottom; voids in joints; severe slippage in the top of the tie beam resulting in a reduction of the top; honeycombing of the concrete in the tie beam with rough attempts shown to patch it; slippage and deflection of the tie beam; and similar defects shown in the 14 pictures making up Petitioner's Exhibit 4 as well as the 15 additional pictures taken by Mr. Gogel and Mr. Davenport which were introduced as Petitioner's Composite Exhibit 6. On August 5, 1986, after Mr. Davenport and Mr. Gogel had visited the construction site at the request of Mr. Boyer, Mr. Davenport wrote Respondent a letter in which he discussed various items of workmanship on the property which needed Respondent's attention. In his letter, Mr. Davenport referred to the provisions of the American Concrete Institute Standards and the standards of the City of Cape Coral. He specifically pointed out that as to joints between cinder blocks, the joint should be not less than one quarter inch nor more than five eighths inch wide. His inspection indicated many of the masonry joints exceeded five eighths of an inch because the blocks were cut with a hammer rather than a block saw and in some cases, poured concrete extruded beyond the surface of the block. Mr. Davenport further addressed additional items which, he indicated, would require attention by the contractor in order for the work to meet the standards of acceptability for good residential construction in the City of Cape Coral. These included: waviness or blow out of sections of the tie beam; extrusion of concrete at the blow out patches; proper preparation of the cinder block walls for the receiving of stucco surface; honeycomb portions of the tie beam; and shimming and re-nailing of furring strips on the interior walls which had bent to follow the warped inner curve of the tie beam. These word descriptions are of the same defects shown in the photographs mentioned above. When Respondent reached that point in the construction where he felt an additional draw payment was called for, he requested it of the Boyers, but because of their dissatisfaction with the quality of the work he had done, they refused to make such payment. Mr. Warnky thereafter contacted his attorney who advised the Boyers by letter dated January 26, 1987, that their continued refusal to make draw payments as required by the contract, would jeopardize completion of the construction. No further payments have been made by the Boyers, however, since they consider the workmanship to be substandard and Mr. Warnky has done no further work on the project. The Boyers have had the work finished by another contractor at considerable additional expense. It should be noted, however, that the work done by the Respondent was passed by the building inspectors for the City of Cape Coral who did not indicate that it was below the cited code standards. Respondent is charged with gross negligence as a result of his failure to properly supervise the laying of the block walls with a resultant defect in the tie beam attached thereto. He admits that he was not present for approximately five to seven days during the ten days to two weeks that it took to lay the block on this project. Both Mr. and Mrs. Boyer contend that Respondent was not present at any time during the laying of the blocks by his employee, Mr. Sweebe. Since Mr. Boyer admits that he was not present at all times on all days that the blocks were being laid, it is impossible for him to indicate with any certainty that Respondent was never present. At best, the evidence shows that on those days when Mr. or Mrs. Boyer were present, Respondent was not present for the laying of the blocks. Based on his visit to the site and his observation of the workmanship, Mr. Davenport concluded that it was not of good quality. The materials used appeared to be suitable, but the application of the materials did not meet the criteria of the Southern Standard Building Code. These conditions are reparable, however, and it appears that Respondent did make efforts to repair some of the defects pointed out. For example, photographs taken on November 5, show an attempted "repair" of a honeycomb patch on the tie beam as does the November 19 photo. This latter picture, however, also shows that the tie beam is out of plumb and that furring strips were shimmed and covered with new furring in an attempt to comply with Mr. Davenport's letter of August 5. Further, this photo showing the waviness on a part of the tie beam indicates some grinding down in an attempt to bring it within standards. Notwithstanding, in Mr. Davenport's opinion, the workmanship by Respondent is below what is normally seen in the industry in Southwest Florida as it pertains to block masonry. These sentiments were reiterated by Mr. Verse, a certified general contractor in Sarasota for 13 years. Mr. Verse evaluated the various photographs taken by Mr. Gogel and Mr. Davenport and compared the work done by the Respondent as depicted on the pictures, against the accepted standards utilized by the building trade in Florida. He concluded that Respondent's work was not acceptable. He agreed with Mr. Davenport as to the deficiency in the joints, in the support of the tie beam, of the forming of the tie beam, and as to all masonry and concrete work. The negligence involved here was in letting this type of work go on when it was not up to code. A prudent general contractor would have stopped any subcontractor when he saw this type of work being done. If Respondent was not present to do so, then he failed to properly supervise. If he was present and allowed this substandard work to continue, he was grossly negligent. Mr. Verse rejects Respondent's excuse for washed out mortar joints, attributing them to rain, as unsatisfactory and unacceptable because a careful contractor will generally cover his work with a plastic sheet in the event rain is imminent. Respondent states that in his years as a contractor, he has never seen this done. Neither did Mr. Mahlmeister. In any case, a prudent contractor would make some provision to protect his work against any outside factor which might reasonably tend to threaten it. Respondent's failure to do so does not excuse the result. The honeycombing and bulging of the tie beam could occur from either improperly formed concrete or properly formed concrete which was improperly vibrated. Based on his examination of the photographs, Mr. Verse concluded it was probably improperly formed. Supports for the forming were not used. Had they been, they would have prevented the bulges that are seen. Even if the form work was properly braced and formed, if the concrete in the tie beams was improperly poured, the tie beam could bulge out at the bottom. Mr. Dililch, the individual who poured the concrete for Mr. Warnky, indicated that the procedure was accomplished at the very hottest part of the day in the hottest part of the year, which caused the concrete to dry out too rapidly and necessitated adding additional water to the mixture in order to keep it pourable throughout the process. Mr. Dililch indicates that though those abnormal steps were necessary, nonetheless, the concrete was poured in one session without any necessity to layer it. There appear to be no joints in the beam, the major defects being the honeycombing and bulging. Mr. Dililch recognizes there were blow outs where the concrete oozed out from under the framing, but contends that these are relatively common and occur on many different jobs by different contractors. Numerous factors could cause a blow out including loose braces, loose clamps, and things of that nature. Prior to pouring the concrete here, Mr. Dililch examined the form carefully and was satisfied it met standards and was safe. Nonetheless, the tie beam contained several examples of honeycombing. Blow outs are difficult to see before the concrete is formed. Older rental clamps quite often come loose and the looseness shows up only when the concrete is poured into the form generating the stress which forces the "mud" out through the joint. On every house he has worked on, there has been at least one blowout. It is, in his opinion, a common occurrence. His self-serving testimony is of little probative value here. The forming for the tie beam was inspected by Mr. Mahlmeister before the beam was poured and determined to be safe. Mr. Verse was shown pictures of work accomplished by other contractors which show similar defects to those attributed here to the Respondent and he admits that other contractors do, from time to time, substandard work. However, based on the opportunity he had to examine Respondent's work in this instance, the Respondent's performance showed defects throughout the entire project, not merely in isolated instances. The deficiencies in Respondent's work are broad based and wide spread. While all contractors make mistakes, the number of Respondent's mistakes take his performance beyond the realm of accident and indicate substandard work in general. Respondent is a small-contractor who does most of the work on his projects by himself and supervises the rest. It is his practice to be present on the construction scene every day but in this case, he admits he was not present all of every day. He has been a contractor in Florida for seven years, building approximately two houses per year. Prior to coming to Florida, he was a builder up north. He takes a great deal of pride in his work and has had very few complaints concerning the quality of his construction. In fact, he got the Boyer job because he had built a house for the Boyer's daughter who was happy with the quality of his construction. He believes his work is equal to the standards of most Cape Coral builders. Respondent admits that he makes mistakes, but he strongly contends that none of the deficiencies here were serious or would make the house unsafe. With all the complaints against it, the tie beam poured under Respondent's supervision, was never changed or altered. Most of the defects cited were cosmetic in nature and would have been corrected by him when the house was stuccoed. Respondent has been disciplined by the Petitioner, Construction Industry Licensing Board, previously, in 1984, when he was fined $250.00. It would appear that action was based on similar grounds to those in the instant action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a certified general contractor be suspended for six months, that he pay an administrative fine of $500.00, and that he be reprimanded. RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1718 The following constituted 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. BY THE PETITIONER Petitioner failed to number Findings of Fact submitted and included them in a section entitled FINDINGS OF FACT AND CONCLUSIONS OF LAW. However, as best as can be determined: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a Conclusion of Law. Rejected as a restatement of testimony. Rejected as a restatement of testimony. Accepted. Rejected as a Conclusion of Law. Accepted as evidence of prior disciplinary action. BY THE RESPONDENT None submitted. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard T. Warnky 4924 S. W. 11th Court Cape Coral, Florida 33904 Fred Seely, Executive Director DPR, Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue This case came on to be heard upon a claim filed by Perry Wadyka against REB, Inc. alleging that REB, Inc. had not paid Perry Wadyka the prevailing wage. This case was consolidated for hearing with the companion cases of Robert C. Howard and David Howard. A separate order is entered in each case arising out of their mutual prosecution of their claims in one hearing. After the claimants had presented their case, the employer moved to dismiss their claims on the basis that the claimants had failed to prove essential elements of their case. This motion was taken under advisement at the time and is herewith denied. The ultimate issue presented is whether REB, Inc. failed to pay Perry Wadyka the prevailing wage. Under the facts presented in this case however, the factual issue is determined by whether one who installs drywall is a carpenter or a lather.
Findings Of Fact Perry Wadyka was initially paid on a piece work basis, $6.50 per hour. Perry Wadyka worked a total of 240 hours. Subsequently, Perry Wadyka asserted a claim for wages as a carpenter at approximately $8.54 per hour. Having been advised of the claim, REB, Inc. paid Perry Wadyka a corrected wage of $7.34 per hour as a lather, and issued a check to Perry Wadyka for the difference between $6.50 per hour and $7.34 per hour. This difference was paid in a lump sum. Perry Wadyka installed drywall at all times on the project to construct a municipal building in Tampa, Florida. Persons who install drywall are classed as both lathers and carpenters. A great deal of controversy exists concerning with which trade, carpentry or plastering, it should be associated. REB, Inc. is a subcontractor specializing in the installation of various wall units. The company did not hire any employees as carpenters but only as labors and lathers.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the claim of Perry Wadyka be denied. Further, the Hearing Officer recommends that the Department of Commerce have prepared some form of pamphlet which outlines to claimants what they must prove if their case goes to a full hearing, and suggests to the claimant ways in which they can prove these essential allegations thereby permitting the Hearing Officer to make a determination of the case upon its merits. DONE AND ORDERED this 13th day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Perry Wadyka 107 West Euclid Tampa, Florida 33602 Luther J. Moore, Esquire Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Edwin D. Peck, Esquire 3637 4th Street, North Room 220 St. Petersburg, Florida 33704
Findings Of Fact Michael J. Kruger was employed from September 30, 1976 until January 21, 1977 by Structural Stud Products at an hourly wage rate of $6.15 per hour. According to his testimony he was engaged primarily in welding on this job. He was involved in installing steel wall stud units made from 12 to 16 gauge steel in the Fine Arts Building of Hillsborough Community College. Although his primary function was as a welder, he did assist in loading and moving these wall units from the point where they were unloaded on the job site to where they were put in place. Structural Stud Products is a company primarily engaged in the fabrication of steel wall units. They had entered a contract with the general contractor to provide such units for installation in the Fine Arts Building. Shortly after interior construction began, the dry wall subcontractor who was installing these units abandoned this project. Structural Stud Products took over this contract and not only supplied the materials but installed these units. Michael Kruger was hired by the job supervisor and plant manager to assist in the installation of these units. He was hired as and was paid wages as a laborer. According to the Schedule of Prevailing Wage Rates applicable to the construction of the Fine Arts Building at Hillsborough Community College, welders were to receive the prescribed rate for the craft performing the operation to which the welding was incidental. See Schedule of Prevailing Wage Rates. No evidence was received that the installation of steel wall units requires any specific expertise peculiar to any building trade. Testimony was received that such units are installed by carpenters, dry wall installers, and laborers.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the complaint be dismissed. DONE and ORDERED this 2nd day of June, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Harrison Thompson, Esquire Post Office Box 3324 Tampa, Florida 33601 Mr. Michael J. Kruger 160 East Floribraska Avenue Tampa, Florida 33603 Mr. Luther J. Moore Department of Commerce Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Mr. Calleja had a valid and active license as a commercial certified pool/spa contractor. His license number is CP 1456568. At all times material to this proceeding, Mr. Calleja was the owner of or did business as Nautica Pools & Spa (Nautica). The Board is charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. On April 2, 2005, Mr. Calleja, as the representative for Nautica, entered into a contract with Jack Coleman to renovate Mr. Coleman’s existing pool. From April 2005 to July 27, 2005, Nautica installed rebar in the pool and set a new skimmer. Nautica subcontracted with Prestige Gunite of Melbourne, Inc. (Prestige), to put the gunite in the pool. Gunite is concrete that is sprayed out of a hose to form the walls of the pool. Personnel from Prestige arrived on the project site on the afternoon of July 27, 2005, to apply the gunite, but did not do so because the application would have taken longer to do than one afternoon. The following day, July 28, 2005, Mr. Calleja and a crew from Prestige returned to the project. A representative from Prestige told Mr. Calleja that the steel rebar had not been laid properly. Mr. Calleja told Prestige to apply the gunite and do what was necessary to cover the steel. Mr. Calleja left the project site, and Prestige began applying the gunite. During the application of the gunite, it became evident that the first spraying of gunite was not going to cover the steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja was not available to solve the problem. Prestige began applying additional coats of gunite in an attempt to cover the steel. After the gunite was applied, two problems were identified. The first problem was in the fountain area. The gunite had not been applied properly, and there were hollow areas. The second problem was in the wet deck area. The steel rebar was too close to the surface of the floor, and the steel was visible. In order to remedy the problems, the concrete in the areas would have to be jack hammered to remove the concrete, and new gunite would have to be applied. By letter dated August 28, 2005, Nautica requested Mr. Coleman to pay Prestige $954.57. Nautica advised Mr. Coleman that when that amount had been paid, Nautica would pay the balance owed to Prestige and forward a release to Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the $954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In the letter, Nautica acknowledged that there was additional work which had not been completed. The letter was signed by Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman that he wanted Mr. Coleman to pay him $2,000.00, and he would take care of paying Prestige. The general specifications in the contract required that the contractor was responsible for “[s]tandard structural engineering plans and permits required by code.” Prior to commencing work on the pool renovation, Mr. Calleja did not secure the required building permits for the project. Mr. Coleman called Clifford Stokes, who is the building official with the town of Indialantic, and asked whether a permit had been issued. Mr. Stokes went to the project site. At that time, the gunite had been shot, and there was exposed steel rebar. Since no permit had been pulled, no inspection had been done after the steel was put in place. On September 15, 2005, Mr. Calleja applied for a building permit. Because the steel had been placed, and the gunite shot, it was impossible to do a visual inspection to determine whether the steel had been placed properly. In order to get a permit after the construction had been commenced, certain affidavits had to be submitted to the building official of Indiatlantic. Mr. Calleja had to submit an affidavit stating that the steel had been placed properly. An affidavit stating that the work had been performed properly had to be submitted from an engineer, who had made a site visit to the project and had determined that the work performed had been according to code. Additionally, Mr. Coleman was required to submit an affidavit that stated that he understood that no inspection had been done of the work by the building official. Mr. Calleja also had to pay a fine to Indiatlantic for commencing work without a building permit. On October 19, 2005, Mr. Calleja and Robert Lee from Lee Engineering came to the project site for the purpose of preparing the affidavits necessary to secure a building permit. Mr. Calleja did not return to the project site after October 19, 2005. Mr. Coleman sent a letter to Mr. Calleja dated October 13, 2005, noting that no work had been done on the project since July 28, 2005, and requesting that Mr. Calleja remedy a number of deficiencies with the work performed on the project and complete the job in accordance with the contract. The letter was returned to Mr. Coleman by the postal service because the time for forwarding mail from the address listed in the letter had expired. When Mr. Calleja came to the project site on October 19, 2005, Mr. Coleman requested a current address from Mr. Calleja, but Mr. Calleja refused to give him one. Mr. Coleman wrote another letter to Mr. Calleja dated October 25, 2005, again stating that no work had been done since July 28, 2005, and requesting that Mr. Calleja correct the deficiencies in the work and complete the contract. Mr. Coleman filed an action in small claims court attempting to recover the money for the lien filed by Prestige. However, Nautica had filed for bankruptcy, and Mr. Coleman did not proceed with the small claim action. A building permit for the project was issued in January 2006. The issuance of the building permit did not relieve Mr. Calleja from the responsibility of assuring that the work in the shallow end of the pool area where the rebar was sticking up was redone properly. After the building permit was issued, neither Mr. Calleja nor Mr. Coleman called for inspections by the Indiatlantic building official. The permit expired in June 2006. After the issuance of the building permit, Nautica performed no further work on the project. The total contract price was $9,340.00. Mr. Coleman and Mr. Calleja entered into an addendum to the contract on July 27, 2005, which increased the contract price to $13,000.00. The contract called for a down payment of $934.00, which was ten percent of the contract amount. After completion of excavation and the form and steel work, a payment of $3,736.00 was due, representing 40 percent of the total work. After completion of the pool shell, a payment of $2,802.00 was due, representing 30 percent of the total work. Prior to plastering, which represented 20 percent of the total work, a payment of $1,868.00 was to be paid. The contract addendum of $3,660.00 called for 50 percent of the addendum amount to be paid at the completion of the pool shell, and the remaining 50 percent of the addendum amount was to be paid at the completion of the pool. By check dated April 22, 2005, signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on the project. In June 2005, Mr. Coleman gave Mr. Calleja a check for $573.42 for a pool and spa light. Mr. Coleman was to receive a credit of $380.00 toward the contract for the light. Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By check dated July 27, 2005, and signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to include half of the addendum amount, but Mrs. Coleman inadvertently included the full amount of the addendum. By check dated August 1, 2005, and signed by Mrs. Coleman, Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005, Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract. In December 2005, Mr. Coleman asked a representative of Paradise Pools, Patrick McDonough, to come to the project site and give an estimate to complete the pool. The estimate of $7,800.00 from Paradise Pools was for a cosmetic plaster of the existing pool, and the work was not warranted against leakage. Mr. McDonough would not warrant the work, because he saw a lot of potential liability problems with the work performed by Mr. Calleja. Mr. McDonough did not recommend that a cosmetic plaster be performed because of the potential problems. On October 26, 2005, Prestige filed a Claim of Lien against the property of Mr. Coleman for $4,227.40 plus interest, costs, and attorney’s fees. The lien was for the work which Prestige had performed on the project on July 28, 2005, and for which Mr. Calleja had failed to pay. Mr. Coleman called Mr. Calleja and told him that a lien had been filed. Mr. Calleja assured him that he would pay the lien, but he failed to do so. Mr. Coleman satisfied the lien by check dated April 11, 2006, for the amount of $5,139.58. David Bogenrief, P.E., viewed the project in June 2008 and provided Mr. Coleman with a quote to develop structural plans to repair Mr. Coleman’s pool. There was no testimony on the amount of the quote, and the Department did not request that the written proposal be admitted in evidence. Mr. Bogenrief did not know what it would cost to repair the pool. The Department has incurred $470.49 for costs in the prosecution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Calleja did not violate Subsection 489.119(2), Florida Statutes, and that Mr. Calleja violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; for the violation of Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as restitution for the payment of the lien filed by Prestige; for the violation of Subsection 489.129(1)(g)2., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $9,682.00, which represents the amount that Mr. Coleman paid to Mr. Calleja; for the violation of Subsection 489.129(1)(j), Florida Statutes, imposing a $1,000.00 fine and four years of probation; for the violation of Subsection 489.129(1)(m), Florida Statutes, imposing a $1,000.00 fine and four years of probation, which shall run concurrently with the other probation imposed; and, for the violation of Subsection 489.129(1)(o), Florida Statutes, imposing a $1,000.00 fine and two years of probation to run concurrently with the other probation imposed; and requiring payment of $470.49 as costs for the prosecution of this case. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2008.
Findings Of Fact At all times pertinent to the issues herein, the Pinellas County Construction Licensing Board was the county agency responsible for the certification of contractors in Pinellas County and the regulation of the contracting industry therein. Respondent, Phillip Gibson, was certified by Pinellas County as a tile and marble specialty contractor under license C-6053. On or about November 8, 1994, Respondent contracted with Myron J. Mensh, a home owner in St. Petersburg, to construct a block wall and apply stone veneer thereto at his residence located at 3018 82nd Way N. Also included in the agreement was the removal of an existing railroad tie wall and the removal of some dirt retained by the ties. Respondent was the contractor chosen by Mr. Mensh from several who were solicited for the job. Though there was no written contract, the parties agreed on a price of $3,900 for the work to be done and in early November, 1994, Mr. Mensh paid Respondent a deposit of $2,000. Respondent proceeded to accomplish most of the work called for, and on November 14, 1994, he advised Mrs. Mensh that the work was just about finished. The block wall had been constructed and the stone veneer applied to the top and outside face of the wall. The Menches had made separate arrangements to have the ties removed from the property by someone else, and this saved Respondent an $800 fee for their disposal, had he been required to take them to the dump. As it was, the Menshes agreed with some other individual to remove the ties and use them someplace else, and the only expense involved was $50 for the rental of a truck used to haul the ties away. This $50 was, by agreement of the parties, to be deducted from the $3,900 fee for Respondent's services. Respondent indicates that when he contracted with the Menshes for the work in issue here, they walked the property in advance and at that time there was no talk of putting any stone down the wall inside the planter. Respondent claims that when he walked through the project with Mrs. Mensh when, he claims, it was completed, she agreed that the stone facing on the side of the wall facing the house, which was the retaining wall for flower beds, should not be faced with stone, and the cinder block surface should be left uncovered. He claims she indicated the beds would filled to the top with dirt and there would be no reason to put either stone or stucco over the block. Had Respondent known the Menshes wanted stone down the inside of the planter, he would have extended the stone on the top of the wall out somewhat over the edge to cover the down course of stone. As it was, when the issue was raised, he attempted to place stone down the inside wall with the top exposed and it did not look at all good. He also claims that when he asked Ms. Mensh where the dirt from behind the ties was to be placed, earlier in the process, she advised him to pile it around the magnolia tree and she would have her gardener remove it to another location for use elsewhere. It would appear that Mrs. Mensh was satisfied with the work done as she advised Respondent to contact Mr. Mensh at his office to pick up the balance due. When he did so, he was paid. However, when Mr. Mensh returned to the home after making payment in full, he was not satisfied that the stone facing was not placed on the block wall inside the flower beds, and that the dirt still remained around the magnolia. As a result, Mr. Mensh repeatedly called the phone numbers he had for the Respondent in order to get the relief he desired but was unable to reach Respondent. Neither did Respondent return any of Mr. Mensh's calls, even though a female, identifying herself as Mrs. Gibson, said she was taking messages for him. In a December 6, 1994 phone call, this same lady admitted Respondent was in the house but would not take Mensh's call, promising to call back the next day. He did not do so. On December 12, 1994, Mr. Mensh sent Respondent a certified letter which was received, but he received no response. Because of this, he filed the complaint in issue. The evidence also indicates, and Mr. Mensh admits, that sometime subsequent to completion of the work but before the filing of the complaint, Mr. Mensh solicited the Respondent to cut away some stone around the fireplace inside Mr. Mensh's house to prepare for the installation of a fire screen. Respondent did this, but was unable to pour any concrete for the screen since the screen was not present. When the screen was subsequently delivered by another tradesman, and Mr. Mensh called Respondent to come back to install it, Respondent declined to do so. The preparation of the fireplace for the installation of the screen was not a part of the agreement in issue here, and there is no evidence that Respondent was obligated to do the stone removal or the concrete work around the screen when the screen was put in place. Mr. Mensh claims now that he paid someone else a nominal fee to have the dirt which was piled around the tree removed, and that is not a problem for him. His dissatisfaction rests with the fact that because the installation of stone over the uncovered bed wall is such a small job, he cannot now get anyone to do it. Respondent claims that when he cut the stone around the fireplace, after completion of the outside work which forms the basis of the complaint herein, no mention was made by either Mr. or Mrs. Mensh of their now-stated dissatisfaction with the bed wall. He also claims that when he finished the outside work, he carefully cleaned up the work site, removing all excess stone fragments and other materials, excluding the dirt, which, he claims, he was told by Mrs. Mensh to leave around the tree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint in issue against Respondent, Phillip Gibson, be dismissed. RECOMMENDED this 2nd day of November, 1995, 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 2nd day of November, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board Suite 102 11701 Belcher Road Largo, Florida 34643-5116 Phillip Gibson 4200 32nd Avenue North St. Petersburg, Florida 22713
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based on the evidence adduced and the stipulation by the Petitioner and Respondents, the following facts are found. At all times material hereto, Respondent Jack W. Palmer, a licensed certified residential contractor, was the qualifier for Master Construction Services, Inc. , herein sometimes referred to as Master. (Petitioner's Exhibit #1) At all times material hereto, Respondent Richard J. Mueller, a licensed certified building contractor, was a qualifier for Master Construction Services, Inc. (Petitioner's Exhibit #2) At all times material hereto, Respondent Timothy E. Zook, a licensed certified general contractor, was a qualifier for Master . Construction Services, Inc. (Petitioner's Exhibit #3) During February, 1979, James Foster, a sales representative for Master Construction Services, Inc., submitted a proposal to one Wright Britton through an insurance adjuster for Crawford and Company, Wayne Trammell, to repair Mr. Britton's residence located at 213 S.E. 7th Ave., Delray Beach, Florida. The amount of the proposal as originally submitted was $37,709.30. (Petitioner's Exhibit #4) During March of 1979, Wayne Trammell, representative for Crawford and Company, effectuated a reduction in the bid proposal from James Foster of Master to $30,000 for the repairs to the Britton residence. (Petitioner's Exhibit #4) On or about May 7, 1979, Wright Britton accepted the proposal from Master. (Petitioner's Exhibits #4 and #11) Mr. Britton received a settlement check from the insurance company in the amount of $31,185. Mr. Britton in turn paid Master the sum of $20,000 as a deposit to commence construction to his residence. (Petitioner's Exhibit #7 and TR, pages 40, 80-85) Master commenced construction during early June, 1979 and abandoned construction during the latter part of September, 1979. At the time Master abandoned repairs to the Britton residence, several subcontractors, including the following, had furnished labor and materials to Master (for the Britton home) which were not paid: $ 480.00 988.26 c. Hallenruff Electric (Petitioner's Exhibits #16 and #17) 2,960.00 d. Ghale Insulation (Petitioner's Exhibit #18) 765.00 e. Russell Jennings (air conditioning work) (Petitioner's Exhibit #15) 1,500.00 f. Joe Mansfield (drywall) (Petitioner's Exhibit #14) 255.00 Pecht-Wensing, Architects & Planners (Petitioner's Exhibit #6) Dixie Glass (Petitioner's Exhibit #5) During January, 1980, Respondent Palmer submitted a document to the Department of Professional Regulation's Investigator, Robert Kehr. The document was entitled "Items Completed by Master Construction Services, Inc., as to Proposal No. 550 for Mr. Wright Britton." The document contained items which were not, in fact, completed by Master as reported. As example, the document indicates that the drywalls had been completed; there were doors in the kitchen; there were jalousie doors and windows which were clean whereas in fact these items, as evidenced by other documentary evidence, consisting of photographic evidence and Petitioner's Exhibit #12, reflect that these items were not, in fact, completed by. Master. Additionally, without reciting all of the discrepancies, in haec verba, it suffices to say that items 49, 50, 52, 57, 58, 62, 63, 71, 130, 131, 161, 163 on the above referred document and the air conditioning were not items completed by Master. Respondent, Jack Wetzel Palmer, appeared and testified on his own behalf during the subject proceeding. Respondent Palmer specializes in insurance repair work and has been involved in such work in this State for approximately ten (10) years. Respondent Palmer was a salesman with Master and had no control or other authority over Master Construction Services' checking or other fiscal policies. Palmer drew a commission and placed his license with Master such that it (Master) could obtain roofing permits. Respondent Palmer indicates that he had no idea that a drywall contractor, other than Master, had completed the drywall work for the Britton residence. Respondent Palmer offered that First American Bank took over all accounts, payable and receivable, of Master Construction Service prior to the conclusion of the Britton project and that that bank made the decision not to complete the Britton project. Respondent Timothy E. Zook also appeared and testified on his behalf during the subject proceeding. Respondent Zook did not compute, nor was he involved in the items referred to on Petitioner's Exhibit #10. Respondent Zook also offered that the decision not to complete the Britton residence was made by First American Bank. Respondent Palmer obtained the building permit for the Britton residence. Respondent Richard E. Mueller also appeared and testified on his behalf reference the subject dispute. According to Mueller, Master obtained some "bad" estimates and when the money for the various projects ran short, the bank refused to extend further monies and therefore the subject project was not completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent Jack w. Palmer's certified residential contractor's license be placed on probation for a period of two (2) years. That Respondent Timothy E. Zook's certified general contractor's license be placed on probation for a period of two (2) years. That Respondent Richard J. Mueller's certified building contractor's license be placed on probation for a period of two (2) years. RECOMMENDED this 11th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 11th day of May, 1983.
The Issue The issue is whether Petitioner is liable for a penalty for failure to maintain workers’ compensation insurance in violation of relevant provisions in Chapter 440, Florida Statutes (2007).1
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107. Petitioner is a limited liability company domiciled in Florida and engaged in the sale of stone countertops. The disputed issues of fact arise from a single, integrated transaction involving “one and the same business” within the meaning of Subsection 440.10(1)(b). The “business” includes a contractor, a wholesaler, and two subcontractors, one of which is Petitioner. The integrated transaction is between the business and a homeowner. The contractor is identified in the record as Manasota Land Development (Manasota). The homeowner owns a residence on Agate Road in Port Charlotte, Florida (the homeowner). The contractor referred the homeowner to Petitioner for the purpose of selecting granite countertops. Petitioner’s representative visited the residence, took measurements, and received the order for granite from the homeowner. Petitioner placed the order with the wholesaler, the name of which is not material to this proceeding. The wholesaler delivered granite to a fabricator and installer designated by Petitioner and identified in the record as Granite Exclusive (the installer). The installer fabricated the countertops and installed them at the residence. Petitioner visited the residence to ensure customer satisfaction, and Petitioner paid the wholesaler and installer from funds provided by Manasota. Petitioner did not collect payment from the homeowner. Rather, Petitioner agreed with Manasota to a total price of $7,141.00. Petitioner billed Manasota for $3,570.00, an amount equal to approximately one-half of the total agreed price, on May 21, 2008, inferentially when the homeowner placed the order with Petitioner. Manasota paid Petitioner the 50 percent deposit. Petitioner billed Manasota for the balance due, in the amount of $3,571.00, on July 22, 2008, when the work was completed to the satisfaction of the homeowner, and Manasota paid the balance due. Petitioner was a sales agent, order processor, and a collection and payment processor for Manasota. Petitioner paid the wholesaler and installer from funds provided by Manasota. The fact-finder draws a reasonable inference from the evidence that Manasota collected a sum from the homeowner that was equal to or greater than the price Manasota paid to Petitioner. Petitioner and the installer are subcontractors of Manasota. Petitioner had no supervisory control over the installer. Respondent’s claim that a written or oral contract existed between Petitioner and the wholesaler and installer is not supported by clear and convincing evidence. It is undisputed that neither the installer nor Petitioner have workers’ compensation insurance, and the two subcontractors are, by operation of Subsection 440.10(1)(b), the employees of Manasota in “one and the same business.” Manasota is responsible for providing workers’ compensation coverage by operation of the statute. Petitioner mistakenly believed, in goof faith, that it was exempt from the requirements of Chapter 440. A company officer of Petitioner obtained an exemption certificate and, reasonably, concluded that the exemption was for Petitioner and both of Petitioner’s officers or employees. Such an exemption was the officer’s stated purpose when she entered the local state office responsible for issuing exemption certificates. The state employee represented that the exemption certificate actually issued achieved the officer’s stated purpose. The express terms of the exemption certificate provide that the exemption is for the person “and” company named in the certificate. However, Subsection 440.05 makes clear that an exemption covers only the company officer named in the certificate and that each of the two officers must be named in the certificate or that each officer must obtain a separate certificate. Petitioner did not engage in the business of fabricating or installing the stone countertop. Petitioner made a sale of the granite countertop and placed an order with a wholesaler. The wholesaler shipped the countertop to a the installer designated by Petitioner based on proximity to the project site. The fabricator installed the countertop. Petitioner did not supervise the fabrication or installation of the countertop. The fact-finder has considered and weighed conflicts in the evidence pertaining to the issue of whether Petitioner engaged in the business of fabricating and installing the stone countertop and has resolved any evidential conflicts in favor of Petitioner. The testimony of Petitioner’s witness, describing the nature and scope of Petitioner’s business, is consistent with Article 5 in Petitioner’s Articles of Incorporation which states: The general purpose for which the Company is organized is to engage in the business of natural stone countertop sales. . . . On June 3, 2008, Respondent’s investigator, conducted a compliance check at 8206 Agate, South Gulf Cove, Florida, to verify compliance with the workers’ compensation statutes. At the worksite, Respondent’s investigator observed three men installing a stone countertop for the installer. Installation of stone countertops is part of the construction industry and is assigned Class Code 5348 in the Scopes Manual, published by the National Council on Compensation Insurance and adopted in Florida Administrative Code Rule 69L-6.021. The investigator interviewed the three men and requested proof of compliance with the workers’ compensation law. One of the three men, neither furnished proof of an election to be exempt from workers’ compensation nor showed that he had secured workers’ compensation coverage. Utilizing the Department of Financial Services’ Coverage and Compliance Automated System (CCAS), the investigator was unable to determine that the employee of the installer was exempt from the requirements of the workers’ compensation law or that Petitioner had secured the payment of workers’ compensation. On June 4, 2008, the investigator issued a Stop-Work Order and Order of Penalty Assessment against Petitioner for failure to meet the requirements of Chapter 440. Respondent ordered Petitioner to cease all business operations and assessed a $1,000.00 penalty against Petitioner pursuant to Subsection 440.107(7)(d). On June 4, 2008, the investigator issued a Division of Workers’ Compensation Request for Production of Business Records for Penalty Assessment Calculation. Petitioner complied with the Request and provided the required records. Based on Petitioner’s business records, the investigator issued an Amended Order of Penalty Assessment on June 11, 2008, in the amount of $1,218.52. Mr. Thomas Harvey, a company officer of Petitioner, did not posses an election to be exempt from workers’ compensation. Ms. Leslie Lockett, the other company officer had applied for and obtained an exemption from workers’ compensation coverage. Ms. Lockett’s exemption from workers’ compensation lists the scope of business or trade as countertops, pursuant to instructions from the agency employee who issued the certificate. Ms. Lockett’s exemption from workers’ compensation is a construction industry exemption. Ms. Lockett applied for a Notice of Election to be Exempt as a member of a limited liability company in the construction industry pursuant to the instructions previously described. In the transaction at issue in this proceeding, Petitioner collected payment for materials and installation of a stone countertop from Manasota. Petitioner did not collect payment from the homeowner and had no control or authority over either the wholesaler or the installer.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order dismissing the Stop-Work Order and Amended Order of Penalty Assessment against Petitioner and Mr. Harvey. DONE AND ENTERED this 24th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2008.
