Findings Of Fact On December 28, 1995, the Department issued a written notice of intent to suspend the Petitioner, White Construction Co., Inc.'s (White) Certificate of Qualification, pursuant to Section 337.16, Florida Statutes. On April 15, 1995, the Department issued a written notice of intent to suspend the Petitioner, Clark Construction Co., Inc.'s (Clark) Certificate of Qualification, pursuant to that statute. The notices asserted that the allowed time under the Department's contracts with White and Clark had expired and that the contract work had not been completed in the case of each contract with those entities. The notices further stated the Department's intent to suspend the Certificates of Qualification and those of their affiliates, as well as the procedures to be followed and the applicable time limits. Both companies filed timely requests for formal hearings, pursuant to Section 120.57(1), Florida Statutes, and those cases are pending at the present time. Additionally, White and Clark challenged the written notices of intent to suspend as being statements which constitute rules which have not been promulgated in accordance with Section 120.54, Florida Statutes, in alleged violation of Section 120.535, Florida Statutes. In taking action, such as suspension or revocation of a contractor's Certificate of Qualification, pursuant to Section 337.16(1), Florida Statutes, the Department's general practice is to issue a written notice which states its reasons for asserting that unsatisfactory progress is being made on a construction project in accordance with the contract terms or for asserting that the allowed contract time has expired. It also informs the contractor of the Department's intent to deny, suspend, or revoke his or her Certificate of Qualification and informs the contractor of his or her right to a hearing, as well as the procedure which must be followed and applicable time limits. The challenged statements contained in the notices of intent issued to Clark and White are consistent with the Department's general practice of implementing Section 337.16(1)(b), Florida Statutes, by informing a delinquent contractor in writing of the Department's intent to deny, suspend or revoke his or her Certificate of Qualification, informing the contractor of his or her right to a hearing, the procedure which must be followed and the applicable time limits. The challenged statements contained in the notices issued to Clark and White are representative of the language generally included in Department notices of intent to deny, suspend or revoke a Certificate of Qualification. The challenged statements provide as follows: * * * Pursuant to Florida Statute 337.16 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days from receipt of this notice. Should your Certificate of Qualifi- cation be suspended or revoked, you shall also be disapproved as a subcontractor on any Department project during the period of suspension or revocation. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency proceedings, Mail Station 58, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0459 within ten (10) days from receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. * * * Failure to timely request an Administrative Hearing within the specified time will result in the contract being declared delinquent. The Department presented no evidence that rule making is not feasible or is not practicable.
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1}(I), F.S., on October 11, 2001, in Fort Lauderdale, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case. The Petitioner was represented by Robert A. Crabill, Esq. The Respondent was not present nor was he represented by Counsel at the Board meeting. Upon consideration of the Administrative Law Judge’s Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
The Issue Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See § 624.307(1), Fla. Stat. (2002). Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle. Reserve Deputy McLaughlin was riding with Deputy White. Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation. Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance. Mr. Wilds added the failure to notify the Department of his address change to his investigator. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department or office in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to the Department, within 30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that Respondent's failure to notify the Department of his address changes was willful. Respondent's insurance license has not been previously disciplined in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint. It is further RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently. DONE AND ENTERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of April, 2004.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order holding the Respondent guilty as charged, impose a fine in the amount of $2000 and suspend the Respondent's license for one year. DONE AND ORDERED this 17th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of March, 1988.
The Issue The issue at the hearing was whether Petitioner is delinquent in the progress of State Project Number 72160-3553 pursuant to Rule 14-23.001, Florida Administrative Code.
Findings Of Fact On September 30, 1987, the Department received bids on Stat Project number 72160-3553. On November 16, 1987, the Department awarded the project to Petitioner. The project consisted of the expansion and improvement of the Godby Lake Bridge on State Road 13 near Orange Park, Florida. In addition to widening the bridge, the project entailed curbs, sidewalks and relocating high tension power lines and poles from the west side of the bridge to the east side of the bridge. Because of the power poles and the location of the bridge in the surrounding area the work had to be performed on the east side of the bridge first. The power poles and lines would be moved from the west side of the bridge to the east side of the bridge second. The work on the west side of the bridge would be completed third. Additionally, the work had to performed without shutting down the lanes to traffic. However, later in the project, the Department decided to waive the lane requirement in order to facilitate the remaining work on the project. Under the contract, time was of the essence for the project. Contract time extensions for the project were governed in the contract as follows: The Department may grant an extension of contract time when a controlling time of work is delayed by factors determined to be beyond the Contractor's control which could not be reasonably anticipated at the time bids for the project were received. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period... A preliminary request for an extension of contract time shall be made in writing to the Engineer within ten calendar days after commencement of a delay to a controlling item of work or the Contractor shall waive any rights to an extension of the contract time for that delay. In the case of a continuing delay only one request is necessary. Each request for extension of time shall include a description of the dates and cause of the delay, a complete description of the magnitude of the delay, and a list of the controlling items of work affected by the delay. Within 30 days after elimination of the delay, or receipt of a written request from the Engineer, the Contractor shall submit all documentation for the delay and a request of the exact number of days justified to be added to the contract time. If the Contractor claims additional compensation in addition to a time extension, the documentation must also include detailed cost analysis of the claimed extra compensation. Failure to deliver the required notice or documentation within the required period shall constitute an irrevocable waiver of an extension to the contract time for that delay. Failure by the Contractor to provide sufficient documentation, justification, records, etc., to support a request for additional contract time shall be a valid basis for denial of the request by the Department, either in part or entirely. The plans and specifications for the project required the project to be completed within 355 days. The first chargeable day under the contract was January 21, 1988. The resulting completion date would, therefore, have been January 9, 1989. However two supplemental agreements provided additional contract days. The agreements extended the contract time period by 45 days. As a result, the project completion date was March 11, 1989. Up to the date of the hearing Petitioner did not indicate to Respondent that it considered the contract time period with extensions to be inadequate or unreasonable. At the hearing Petitioner indicated such a belief. Additionally, the plans and specifications for the project clearly showed the Department's right of way for the bridge and the Department's construction easements for the bridge. Other than what was shown on the project plans and specifications, the plans and specifications did not provide for any additional right of way or construction easements. The contract incorporated The 1986 Standard Specifications for Road and Bridge Construction. The specifications provide for access as follows: Right of Way Furnished by Department. Except as otherwise stipulated in these Specifications or as may be shown in the plans, all right of way necessary for the proper completion of the work will be furnished by the Department, without cost to the Contractor. The present case clearly falls within the exception in the above language since the plans and specifications disclosed the limits of the right of way and construction easements being supplied by DOT. The burden was therefore on Petitioner to supply any additional easements it felt were necessary to properly complete the project. Prior to bidding the project, Petitioner studied the bid blank, proposed plans and specifications for the project. Additionally, Petitioner viewed the project site and the surrounding area prior to submitting its bid. Petitioner observed that the work area for the project would be "tight" due to the limited right of way and construction easements provided by DOT in the plans and specifications and due to the obstruction of private docks in close proximity to the bridge. However, Petitioner did not protest or otherwise inform DOT of its concerns regarding the work space prior to the award of the bid. Instead, Petitioner elected to gamble on being able to do the job as specified. Likewise, Petitioner observed, prior to bidding the project that water access would be required. Petitioner had noticed that the property adjacent to the southeast corner of the project was for sale. Petitioner also knew that the owner of that property had previously granted DOT a construction easement over part of the property. Based on the above facts, Petitioner assumed that river access could be acquired over the adjacent property and included approximately $15,000 in its bid for acquisition of such water access. Petitioner did not contact the landowner to see if such an arrangement was possible prior to submitting its bid or prior to the award of the bid Petitioner elected to gamble on such access being available. Once the project was awarded to Petitioner on November 16, 1988, Petitioner immediately began its attempts to obtain a water access. After the award of the bid to Petitioner but prior to commencement of the contract, the Jacksonville Electrical Authority (JEA) erected its utility poles on the east side of the bridge. The work was performed out of order. The utility poles' placement was such that the poles partially blocked the right of way and construction easements supplied by DOT and made it impossible to drive pilings at the ends of the bridge. Petitioner complained about the utility poles and their effect to Respondent at the preconstruction conference on December 9, 1987. The poles were eventually removed and the project was officially commenced on January 9, 1988, almost two months after the award of the bid. Petitioner was granted 14 additional contract days for the interference with the pile driving caused by the power poles' premature placement. However, Petitioner did not receive any additional days for the partial blockage of the right of way and construction easements since no delay was caused by that blockage. The partial blockage only interfered with light equipment being delivered to the job site. The poles did not interfere with the delivery of the crane and barge to the job site since the easement was too steep for the heavier equipment to traverse. A separate water access would still be required for the crane and barge to be delivered to the project site. Petitioner had not acquired such an access on January 9, 1988. Petitioner did not begin work on the project until March 2, 1988, some two months after the project period had commenced. Petitioner did not move any heavy equipment onto the project site during this period. Instead, Petitioner continued to seek a water access to the project site which could handle the heavy equipment and barges Petitioner determined it would need to adequately perform the work on the project. The search for access was necessitated by Petitioner's inability to contract for such access with the landowner whose land was immediately adjacent to the project site. The landowner demanded a price of $75,000 for Petitioner's use of its property. The price was grossly out of line with the usual charge for access in the area. DOT refuse to obtain any additional right of way or construction easements. 1/ Petitioner eventually contracted for access to the river with a landowner whose property was located approximately 500 feet east of the project site. The land was such that it required Petitioner to build a road sturdy enough to carry its crane and barge sections. As soon as access was obtained and the road was complete, the equipment was floated down river to the bridge and the project work was immediately begun. Other delays in the performance of the work were experienced by Petitioner due to the location of privately owned docks which extended into the waterway and boat traffic. A portion of one dock had to be removed by Petitioner in order to gain enough room for the barge next to the bridge. The total effect of these problems was to slow work on the project. However, Petitioner was aware of the private docks and the boat traffic from its earlier visit to the project site prior to submitting its bid. Likewise, Petitioner was aware of the limitations of the work space provided by DOT. The evidence did not demonstrate that the work space was inadequate. The project work has been performed in the area provided by DOT. The space, however, is limited. From March, 1988, through the date of the hearing problem associated with the limitations of the work space at the project site prevented work from being timely performed on the project site. However, no evidence was presented by Petitioner that it had ever made a request of DOT for an extension of time due to the limited work space. In fact, the evidence showed that in March and July, 1988, Petitioner believe and so represented to DOT that it could complete the project on time. Additionally, no evidence was presented as to the amount of time incurred by Petitioner attributable to the limited work space. Petitioner, therefore, is not entitled to an award of additional contract days for any delays caused by the limited work space provided by DOT. As of May 4, 1989, the date of the formal hearing in this matter, the project had not been completed by Petitioner. The project completion date had passed on March 11, 1989. Therefore, Petitioner was delinquent under Rule 14- 23, Florida Administrative Code. On March 21, 1989, the Department sent a Communication Terminal Message Sending Blank to Petitioner, indicating that a final notice of delinquency would be issued on the project. On March 27, 1989, Petitioner received the Department's letter informing Petitioner that it was delinquent in the performance of the project work since the time for completion had passed and the project remained uncompleted. By letter dated March 31, 1989, Petitioner advised Respondent that it did not feel that it was delinquent on the project since it had a request for a 120 day extension of time pending before Respondent. No evidence was submitted by Petitioner on the contents of that requested extension. However at the hearing the evidence demonstrated that the request was made based on the untimely move of the power poles 2/ and the initial lack of access to the project site. 3/ Petitioner further requested that if the extension should be denied then it wanted an administrative hearing on whether it was delinquent. Respondent tacitly denied Petitioner's requested 120 day extension and granted Petitioner's request for an administrative hearing. At the hearing Petitioner for the firs time associated the 120 day extension with its claim of inadequate work space at the project site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Petitioner delinquent on the project and suspending Petitioner's Certificate of Qualification for the period defined in Rule 14-23, Florida Administrative Code. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. DIANE CLEAVINGER 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 23rd day of June, 1989.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(I), F.S., on August 9, 2001, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case, and Respondent's Exceptions to the Recommended Order. The Petitioner was represented by Robert A. Crabill, Esq. The Respondent was present at the Board meeting and was represented by his counsel, Jeffrey A. Blau, Esq. Upon consideration of the Administrative Law Judge’s Recommended Order, the exceptions filed thereto, the arguments of the parties, and after a review of the complete record in this matter, the Board makes the following findings:
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
