The Issue Whether Respondent, Stucco Drywall Contractors, Inc. ("Respondent"), failed to comply with the coverage requirements of the Workers’ Compensation Law, chapter 440, Florida Statutes; and, if so, whether Petitioner, Department of Financial Services, Division of Workers’ Compensation ("Department"), correctly calculated the penalty assessed against Respondent. Respondent does not contest the Stop-Work Order for Specific Worksite Only ("SWO"). Rather, Respondent asserts that the penalty contained in the 2nd Amended Penalty Assessment inappropriately includes two business entities ("HT Consulting Contractors" and "NDDS Services") that were "independent contractors" performing non-construction work, rather than "subcontractors" for whom Respondent has statutory liability.
Findings Of Fact The Parties The Department is the state agency responsible for enforcing the requirements of chapter 440 that employers in Florida secure the payment of workers’ compensation coverage for the benefit of their employees and corporate officers. Respondent, a Florida for-profit corporation, does stucco and drywall work, and was actively engaged in such business operations in the state of Florida from November 15, 2014, to November 14, 2016, during the two-year audit period. At all times material hereto, Respondent was an "employer" within the meaning of section 440.02(16), and Esperanza Duran and Bernardo Gomez were "corporate officers," as that phrase is defined in section 440.02(9).1/ The Investigation It is the duty of the Department to make random inspections of jobsites and to answer complaints concerning potential violations of workers’ compensation laws. On November 14, 2016, the Department’s investigator, Xotchilth Valdivia, commenced a random workers’ compensation compliance investigation at 12060 Hialeah Gardens Boulevard, Hialeah Gardens, Florida 33018, because she noticed two men doing a plaster job at a commercial construction site. The men said they worked for Plaster Solutions, Inc., adding that Plaster Solutions was a subcontractor for Respondent. The owner of Plaster Solutions, Duval R. Chavez, Sr., came to the worksite and told the investigator he had an exemption from Florida’s workers’ compensation laws, but no coverage for his two employees. Mr. Gomez came to the worksite and told the investigator he requested proof of workers’ compensation insurance when he hired Plastic Solutions, but did not receive it. The investigator searched the Compliance and Coverage Automated System maintained by the Division of Workers’ Compensation and found an exemption for Duval R. Chavez, Sr., but no workers’ compensation insurance for employees of Plaster Solutions. A similar search retrieved an exemption for Mr. Gomez and an employee leasing policy for Respondent. An employee leasing roster provided by Howard Leasing identified 10 employees of Respondent. The two men observed performing plaster work, Gilberto Reyes and Alexis Jeovany Ramos Jiminez, were not on the leasing roster and did not have exemptions from Florida’s workers’ compensation laws. The Department’s investigator contacted her supervisor and received permission to issue SWO 16-367-D5 to Plaster Solutions, Inc., and SWO 16-368-D5 to Respondent. Both orders were personally served on the respective business owners at the worksite. Upon service of the SWO, the investigator personally served Respondent with a Business Records Request ("BRR"), requesting business records sufficient to determine the amount of Respondent’s unsecured payroll for purposes of assessing a penalty pursuant to section 440.107(7)(d)1., for the audit period of November 15, 2014, to November 14, 2016. Penalty Calculation The Department’s penalty auditor, Sarah Beal, initially calculated a penalty in the amount of $117,791.66, based on business records (bank statements, proof of coverage or exemption for subcontractors) provided by Respondent. The auditor assigned National Council on Compensation Insurance ("NCCI") class code 5480, Plastering, based on the investigator’s observations of plastering work on the date of the site visit and records provided, such as the notations on the memo lines of Respondent’s checks. An attorney for the Department, Young Kwon, served the Amended Order of Penalty Assessment upon Respondent’s attorney, by email, on January 5, 2017. The Department issued a 2nd Amended Order of Penalty Assessment on September 7, 2017, reducing the penalty to $74,042.40, based on clarifying information provided by Respondent. The undersigned granted leave to amend the penalty on October 16, 2017. The 2nd Amended Order of Penalty Assessment calculates a penalty of $56,170.68 for HT Consulting Contractors and $12,983.50 for NDDS Services. Respondent concedes it did not secure the payment of workers’ compensation coverage for any of the individuals listed on the penalty worksheet of the 2nd Amended Order of Penalty Assessment during the periods of non-compliance listed on the penalty worksheet. Respondent does not contest the penalties for the following individuals or entities listed on the 2nd Amended Order of Penalty Assessment: Alexis Jeovany Ramoes Jimenez, ANA Services, Inc., DH Drywall Contractors, Esperanza Duran, Gilberto Reyes, and YYM Frames Enterprises. The only penalties disputed by Respondent are those attributable to HT Consulting Contractors and NDDS Services. HT Consulting Contractors Respondent contends that HT Consulting Contractors provided non-construction referral services as an independent contractor, and therefore, no penalty should be attributable to HT Consulting Contractors. However, Respondent failed to present persuasive and credible evidence at hearing that HT Consulting Contractors was an independent contractor performing non- construction referral services. Accordingly, the penalty attributable to HT Consulting Contractors is appropriate. HT Consulting Contractors incorporated on August 10, 2015, and was administratively dissolved on September 23, 2016. Henry Torres Castillo testified that he was the sole owner and employee of HT Consulting Contractors, a business which he operated from his residence for a period of one year up until just a few months before the hearing, when he closed the business. At all times material hereto, Mr. Castillo shared his residence with his wife, Ms. Duran, who is Respondent’s president. Mr. Castillo testified that he is a former construction worker in the areas of roofing, marble, stucco, and drywall, who only researched and found construction jobs for construction businesses, including Respondent, for which he was paid a commission. Mr. Castillo testified that he drove his personal vehicle to construction jobs to generate leads, met clients at restaurants, traveled to different parts of Florida, and performed detailed research related to the cost of materials and labor for his client construction companies. Bernard Gomez is vice-president of Respondent. Mr. Gomez likewise testified that HT Consulting Contractors was a referral company that only provided referral services to Respondent for which it was paid a commission. Both Mr. Castillo and Mr. Gomez denied that HT Consulting Contractors provided any labor or work in the construction industry. No written contracts, statements, receipts, or invoices evidencing any services provided by HT Consulting Contractors to Respondent were presented at hearing. No detailed written description of any of the jobs for which a referral commission was purportedly paid to HT Consulting Contractors was presented at hearing. No documents evidencing any of the purported detailed research by Mr. Torres were presented at hearing. No federal income tax returns or IRS 1099 forms for HT Consulting Contractors were presented at hearing. No business bank account statements for HT Consulting Contractors for the audit period were presented at hearing. Mr. Castillo did not utilize any business cards or marketing materials on behalf of HT Consulting Contractors. Ms. Duran did not testify at hearing. The Department presented numerous checks from Respondent payable to HT Consulting Contractors. These checks were signed by Ms. Duran as president and on behalf of Respondent. Many of the checks, included within the Department’s Composite Exhibit 14, contradict Respondent’s position that it paid HT Consulting Contractors for referral services as an independent contractor performing non-construction work. In fact, the checks support the Department’s position that HT Consulting Contractors was a subcontractor for whom Respondent has statutory liability. For example, on November 21, 2015, Ms. Duran signed check number 1319 made payable to HT Consulting Contractors in the amount of $6,000.00. The memo line of the check reads: "Supervisor." On November 20, 2015, Ms. Duran signed check number 1321 made payable to HT Consulting Contractors in the amount of $3,800.00. The memo line of the check reads: "Supervisor." On March 31, 2016, Ms. Duran signed check number 1417 made payable to HT Consulting Contractors in the amount of $12,000.00. The memo line of the check includes the word "labor." On April 20, 2016, Ms. Duran signed check number 1442 made payable to HT Consulting Contractors in the amount of $10,000.00. The memo line of the check reads: "Pay/employment." On June 1, 2016, Ms. Duran signed check number 1490 made payable to HT Consulting Contractors in the amount of $15,000.00. The memo line of the check reads: "Employment." On July 12, 2016, Ms. Duran signed check number 1501 made payable to HT Consulting Contractors in the amount of $10,000.00. The memo line of the check reads: "Pay Employment." On August 29, 2016, Ms. Duran signed check number 1530 made payable to HT Consulting Contractors in the amount of $11,000.00. The memo line of the check includes the words "sub labor." On September 7, 2016, Ms. Duran signed check number 1534 made payable to HT Consulting Contractors in the amount of $18,000.00. The memo line of the check includes the words "sub labor." On October 21, 2016, Ms. Duran signed check number 1553 made payable to HT Consulting Contractors in the amount of $11,000.00. The memo line of the check includes the words "sub labor." Mr. Castillo could not explain the reasons for the notations of the words "labor," "supervisor," and "employment" on the memo lines of checks signed by his wife. However, Mr. Castillo understands that the phrase "sub labor" "mean[s] a subcontractor provides labor." Mr. Castillo could not recall any details about the jobs that generated checks in the amount of $12,000.00 (check number 1472); $15,000.00 (check number 1490); and $10,000.00 (check number 1501). The undersigned had the distinct opportunity to observe the demeanor of Mr. Castillo and Mr. Gomez when they testified at hearing. Mr. Castillo’s and Mr. Gomez’s testimony that HT Consulting Contractors provided referral services outside the construction industry to Respondent as an independent contractor is rejected as unpersuasive and not credible. In sum, the Department correctly applied NCCI class code 5480 and the penalty attributable to HT Consulting Contractors is appropriate. NDDS Services Respondent contends that NDDS Services provided non- construction referral services as an independent contractor, and therefore, no penalty should be attributable to NDDS Services. However, Respondent failed to present persuasive and credible evidence at hearing that NDDS Services was an independent contractor performing non-construction work. Accordingly, the penalty attributable to NDDS Services is proper. Yyheeling Evans testified that she is the sole owner and member of NDDS Services, LLC, a business which she has operated from her home since its creation in 2013. Ms. Evans testified that NDDS Services researches and finds construction jobs for construction businesses, including Respondent, for which she is paid a commission. Mr. Gomez likewise testified that NDDS Services is a referral company that only provided referral services to Respondent for which it was paid a commission. Both Ms. Evans and Mr. Gomez denied that NDDS Services provided any labor or work in the construction industry. No written contracts, statements, receipts, or invoices evidencing any services provided by NDDS Services to Respondent were presented at hearing. No detailed written description of any of the jobs for which a referral commission was purportedly paid to NDDS Services was presented at hearing. No federal income tax returns or IRS 1099 forms for NDDS Services were presented at hearing. No business bank account statements for NDDS Services for the audit period were presented at hearing. Ms. Evans did not utilize any business cards or marketing materials on behalf of NDDS Services. The Department presented numerous checks from Respondent payable to NDDS Services. These checks were signed by Ms. Duran as president and on behalf of Respondent. Several of the checks, included within the Department’s Composite Exhibit 14, contradict Respondent’s position that it paid NDDS Services for referral services as an independent contractor performing non-construction work. In fact, the checks support the Department’s position that NDDS Services was a subcontractor for whom Respondent has statutory liability. On November 9, 2014, Ms. Duran signed check number 1165 made payable to NDDS Services in the amount of $7,000.00. The memo line of the check reads: "GV 1st Floor." On May 13, 2015, Ms. Duran signed check number 1202 made payable to NDDS Services in the amount of $15,000.00. The memo line of the check reads: "LAN 20550-As of today." On June 29, 2015, Ms. Duran signed check number 1220 made payable to NDDS Services in the amount of $9,450.00. The memo line of the check includes the word "finish." Ms. Evans could not recall any details about the jobs that generated the aforementioned checks. Ms. Evans testified that she holds a non-construction exemption. However, Ms. Evans sought a construction industry exemption for NDDS Services during the applicable audit period and she did not hold a valid exemption during the audit period. The undersigned had the distinct opportunity to observe the demeanor of Ms. Evans and Mr. Gomez when they testified at hearing. Ms. Evans’s and Mr. Gomez’s testimony that NDDS Services provided referral services outside the construction industry to Respondent as an independent contractor is rejected as unpersuasive and not credible. In sum, the Department correctly applied NCCI class code 5480 and the penalty attributable to NDDS Services is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order assessing a penalty against Respondent in the amount of $74,042.40.3/ DONE AND ENTERED this 1st day of February, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2018.
Findings Of Fact At all times pertinent to this proceeding, respondent held a license to practice land surveying in the State of Florida. In March 1984, Joseph L. Abrams a land developer, hired the respondent to perform certain professional services in connection with a proposed development known as Doug's Unit Number One. Mr. Abrams hired the respondent because he had previously performed land surveying services for Mr. Abrams and had done a good job. Doug's Unit Number One involved six acres of land which had been preliminarily subdivided by an engineer into 14 separate lots. The preliminary drawing by the engineer, showing set backs, easements, and other matters, had been approved by the City of Winter Springs, but Mr. Abrams needed a sealed drawing to record. He therefore hired the respondent as a professional surveyor, to describe the lots in surveying terms and prepare a sealed set of drawings. On March 27, 1984, the respondent prepared a bill for the services and itemized the total cost of $756 as follows: drafting of S/D on linen, $250; cost of linen $6; engineering, calculations telephone calls specifications, Winter Springs conference, etc., $500. Mr. Abrams paid the bill the same day. Mr. Abrams was informed that respondent had paid Burl (Mike) Drennen to do the drafting, and, as soon as the drafting was done, either respondent or Mr. Drennen would deliver the drawings, properly sealed, to Mr. Abrams. The drawings were to be delivered in two to three weeks. Respondent also informed Mr. Abrams that respondent was leaving for New Jersey and would be gone for a few weeks. Respondent gave Mr. Abrams his phone number in New Jersey and Mr. Drennen's phone number. After two weeks elapsed and the drawings had not been delivered, Mr. Abrams began calling the respondent and Mr. Drennen. Sometime in April or May, Mr. Abrams was able to contact respondent in New Jersey and the respondent explained that he would be unable to return to Florida for another two to three weeks due to his wife's serious illness. Mr. Abrams also contacted Mr. Drennen, who informed him that he would not deliver the drawings because he had not been fully paid for his drafting services and because he would have to receive authorization from the respondent before the drawings were released since the respondent had hired him. Mr. Drennen told Mr. Abrams that he would try to contact respondent to get the authorization to release the drawings, but Mr. Drennen was unable to contact the respondent. However after several more conversations with Mr. Abrams, Mr. Drennen agreed to deliver the drawings if Mr. Abrams paid him the remaining money he was owed. 1/ On June 6, 1984, Mr. Drennen delivered the drawings and was paid $180 by Mr. Abrams. However, when Mr. Abrams looked over the sheet, he realized that the sheet had not been sealed. He tried to contact the respondent, and when he was unable to do so, he decided to go to another surveyor. The new surveyor could not simply take the drawing and seal it; he had to do the entire project over again. Mr. Mims, the new surveyor, charged $1,250 which was paid in October or November of 1984 and the sealed drawings were delivered and recorded on December 20, 1984. By letter dated June 7, 1984, Mr. Abrams filed a complaint with the Department of Professional Regulation, and on August 15, 1984, Mr. Alvin Lewis Smith, an investigator with the Department, contacted respondent by telephone in New Jersey to inquire about the matter. The respondent admitted that he had not completed the project, but he stated that he had his seal in New Jersey and, if Mr. Abrams had sent the drawings to him, he could have signed and sealed the drawings and sent them back to Mr. Abrams. However, when asked if he had done any field work for the project, respondent said that he had not and that he couldn't seal the drawings because he hadn't done the field work. Nevertheless, on August 16, 1984, respondent wrote to Mr. Abrams stating that he had taken his seal to New Jersey and that he could sign and seal the linen and have it back to Mr. Abrams in two days if Mr. Abrams would send the drawings to him by Federal Express. At the hearing the respondent testified that the $756 payment was for drawing up the plat and performing calculations and engineering work on the project, but it was not for doing the field work. However respondent acknowledged that the field work had to be done before the plat could be sealed and recorded. All the other evidence and testimony presented at the hearing indicates that the respondent agreed to deliver drawings to Mr. Abrams that were properly prepared and sealed for recording. It is therefore apparent that the $756 paid by Mr. Abrams to respondent was to cover all the work necessary, including the field work, for the plat to be recorded. Without being sealed, the drawings were useless. During the time of this incident the respondent had personal problems which required him to stay in New Jersey. His wife was quite ill and his wife's parents' estate had to be settled. Respondent has been a registered surveyor for over 30 years and, until the instant action, had never had a complaint filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, and upon due consideration of respondent's personal circumstances at the time of this incident and respondent's previously unblemished record, it is RECOMMENDED that a final order be entered finding respondent guilty of those acts set forth in Sections 472.033(1)(g) and 472.033(1)(h), Florida Statutes, reprimanding the respondent, and placing him on probation for a period of one year with such terms and conditions as may be deemed necessary by the Board of Professional Land Surveyors. DONE and ENTERED this 23rd day of August, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS 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 23rd day of August, 1985.
The Issue The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.
Findings Of Fact Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
The Issue At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.
Findings Of Fact Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found: Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner) Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19) Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2) David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16) PETITIONER'S POSITION During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3) Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p. 16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981. RECOMMENDED this 8th day of February, 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 8th day of February, 1983.
