The Issue The issues are whether Respondent violated Section 489.127(1)(f), Florida Statutes (2005), and if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction contracting in the State of Florida. At all times material hereto, New Look Contracting, Inc. did not possess a certificate of authority to practice as a contractor qualified business. Respondent was a part owner/operator of New Look Contracting, Inc. On or about July 9, 2005, Respondent contracted with Lynnda Davis to, inter alia, raise the ceiling on the front porch and install French doors on Ms. Davis's office in Lake City, Florida, for $950. Ms. Davis paid Respondent $1,275 for the construction project of which Respondent admits to receiving at least $475. Respondent broke tiles at Ms. Davis's office and took contractually unrelated materials from her property. All of the items listed in the contract between Respondent and Ms. Davis required a Lake City, Florida, building permit. The total investigative cost to Petitioner, excluding costs associated with any attorney's time, was $311.21.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2005), imposing an administrative fine in the amount of $10,000, and assessing costs in the amount of $311.21. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of September, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Domenick Spallina 159 Southwest Pleasant Hill Glen Fort White, Florida 32038 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed May 22, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and the entire record of this proceeding, the following findings of fact are made: Ms. Blackwood has been employed by the School Board as a construction project manager on July 2, 1996. On July 1, 1997, Ms. Blackwood was made Senior Supervisor of Inspections and Code Compliance in the School Board's Building Department; the title of her position changed in 2001, and at the times material to this proceeding, Ms. Blackwood's position was Senior Supervisor for Building Inspectors in the Building Department. Her job responsibilities included supervising building inspectors whose function it was to inspect School Board construction projects for compliance with the various building codes governing such construction. Ms. Blackwood earned a bachelor's degree in design and a masters degree in construction management from the University of Florida. At the times material to this proceeding, she held a Florida building inspector's license, a building code administrator's license, a building contractor's license, and an interior designer's license. She has approximately 20 years' experience in building design and construction. Prior to becoming Senior Supervisor for Building Inspectors, Ms. Blackwood had no experience as a building inspector; her experience in the construction field was as a project manager. Ms. Blackwood is a member of the Broward Teachers Union - Technical Support Personnel ("BTU-TSP"). The BTU-TSP and the School Board entered into a Collective Bargaining Agreement that includes sections setting forth the rights of the School Board and the procedures that must be observed with respect to due process and discipline. The provisions defining "Management Rights" are found in Article Four of the Collective Bargaining Agreement and provide in pertinent part: It is understood and agreed that the District possesses the right and responsibility to operate and manage all schools, departments and programs and to direct the work forces. The rights, powers, authority, and discretion necessary for the District to carry out these rights and responsibilities shall be limited only by the express terms of this Collective Bargaining Agreement and shall be exercised in a manner consistent with this Collective Bargaining Agreement and Florida. In matters not covered by this Collective Bargaining Agreement, the District shall have the clear right to make administrative decisions. Consistent with this Collective Bargaining Agreement, these management rights shall include, but not be limited, to the following: * * * Direct its employees and establish standards of performance and conduct, including the right to make reasonable rules and regulations for the purpose of efficiency, safe practices and discipline. Take disciplinary action for just cause.[2] The provisions governing "Due Process & Discipline" are found in Article Nine of the Collective Bargaining Agreement and provide in pertinent part: Progressive Discipline: The parties agree to the principles of progressive discipline. Disciplinary action, for the most part, shall be administered in a manner to correct behavior that is in violation of policies, procedures and established practices. Discipline shall be administered for just cause and not in a manner that is demeaning or degrading. b. Meetings and Notifications: Disciplinary action shall be administered within twenty (20) working days from the date the violation occurred or when the violation was first known to have occurred. For any meeting scheduled for the purpose for taking disciplinary action, the department shall provide the employee with written notification of the violation and schedule a meeting where the circumstances surrounding the violation shall be discussed. This meeting shall be scheduled no sooner than three (3) working days after the employee receives such notification. . . . * * * During the Meeting: 1. The conference is intended to provide the employee with an explanation of the charges and the basis for the charges. Any relevant questions that the employee asks shall be answered to the best of the supervisor's ability. The employee shall be given an opportunity to respond, including their own explanation of the incident or mitigating circumstances, either verbally or in writing. * * * Discipline: Any discipline of an employee shall be for just cause. Disciplinary action may be taken in the form of a verbal reprimand, written reprimand, suspension, demotion or discharge. No action against an employee shall be taken on the basis of a complaint by any individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her supervisor.[3] Ms. Blackwood's immediate supervisor in the Building Department was the Chief Building Official ("CBO"). The CBO is the final authority who is responsible, at the local level, for interpreting the Florida Building Code ("Code") as it applies to School Board construction projects. During her time as Senior Supervisor, Ms. Blackwood was supervised by Robert Goode, except for a period of four or five months when Alan Gilbert served as the CBO, and by Lee Martin.4 Ms. Blackwood had a difficult relationship with each of the CBOs; she considered Mr. Goode unqualified for the position of CBO; she did not like Mr. Gilbert's allowing the building inspectors under her supervision to avoid the chain of command and go directly to him with any concerns they might have; she did not agree with many of Mr. Martin's policies and decisions and she thought he was an ineffective leader. In September 2001, Ms. Blackwood and two of her subordinate building inspectors, Maria Rouco and Sarah Kanner, filed suit against the School Board, alleging, among other things, that they should be accorded whistle-blower status and that they had been subjected to discrimination, harassment, and failure to promote. The lawsuit caused a split among the building inspectors under Ms. Blackwood's supervision, with some supporting the lawsuit and others opposing it. At or about the time the suit was filed, some of Ms. Blackwood's subordinates noticed that Ms. Blackwood's behavior in the workplace changed and that the atmosphere in the Building Department's offices became strained, tense, and chaotic. The lawsuit was finally resolved in November 2004, and resulted in a verdict against Ms. Blackwood. From the summer of 2001 until she was reassigned in February 2005, Ms. Blackwood's effectiveness as a leader and her conduct in the workplace was called into question in evaluations, letters of reprimand, informal communications from her supervisors, non-disciplinary counseling sessions, and formal and informal complaints submitted by several of her subordinates. Ms. Blackwood's relationship with Mr. Goode Both Ms. Blackwood and Mr. Goode applied for the position of CBO with the School Board in 2001, and Mr. Goode was ultimately chosen for the position. Their working relationship was somewhat confrontational when he first became her supervisor, but the level of confrontation escalated as time progressed. Ms. Blackwood believed that Mr. Goode had misrepresented his qualifications for licensure to the Department of Business and Professional Regulation and was not qualified to hold either the license that was issued to him or the position of CBO. Mr. Goode issued a written directive that building inspectors should stop doing any plan reviews for the projects for which they were responsible. Several months after the directive was issued, Mr. Goode learned that building inspectors under Ms. Blackwood's supervision continued to be involved in plan review. Mr. Goode discussed this with Ms. Blackwood and told her to follow the directive and send it to all of the employees under her supervision. On or about August 7, 2002, Ms. Blackwood directed one of the building inspectors under her supervision to take a dispute with an architect over an inspection to the Florida Department of Education. This instruction was inconsistent with the procedures Mr. Goode had established for resolving disputes between building inspectors and architects, which procedures required that the issue first be considered at the local level. In an e-mail dated August 7, 2002, Mr. Goode wrote Ms. Blackwood to advise her that he considered this an act of insubordination and that he intended to schedule a meeting with her in the near future to discuss the matter. This incident did not, however, result in disciplinary action being imposed against Ms. Blackwood. On or about August 23 and 26, 2002, Ms. Blackwood become involved in a heated e-mail exchange with Israel Rodriguez-Soto, a project manager, regarding the accessibility requirements of the Americans With Disabilities Act being met at Elementary School X and the procedure for resolving disputes over whether a building met the requirements of the Florida Accessibility Code for Building Construction. Ms. Blackwood noted in her e-mail to Mr. Rodriguez-Soto that "MR. GOODE'S PROCEDURE [for resolving disputes over code interpretation] ONLY REFERS TO THE DEPARTMENT OF EDUCATION INTERPRETATIONS."5 (Emphasis in original.) Both Mr. Rodriguez-Soto and Ms. Blackwood sent a copy of their e-mails to Mr. Goode, who responded in an e-mail to Ms. Blackwood dated August 27, 2002: Please refrain from critiquing procedures I have issued with statements such as "Mr. Goode's procedures only refers to the Department of Education interpretations." This is the second recent incident regarding misinformation you provided related to the Code Interpretation Dispute Procedure and I consider such action to be insubordinate conduct. . . . [I]t troubles me that you, as a senior supervisor, did not instruct Mr. Fallon to follow the procedure . . . . I plan to meet with you soon to discuss this matter in greater detail.[6] Mr. Goode considered Ms. Blackwood's job performance to be consistently unacceptable in several areas, specifically in her failure to implement his policies regarding building inspectors not being involved with plan reviews and regarding the dispute resolution procedures. Mr. Goode prepared draft evaluations of Ms. Blackwood's performance for the 2001-2002 and 2002-2003 school years, but he was advised by the School Board's personnel office not to finalize the evaluations because a poor performance evaluation could be considered retaliation for the lawsuit she had filed against the School Board and an attempt to tarnish her employment record. Mr. Goode, therefore, never finalized these two performance evaluations. On two or three occasions, Mr. Goode met with Ms. Blackwood and told her that he expected her to follow his directives, policies, and procedures. He was also concerned because he perceived that she had a confrontational relationship with the general contractors, architects, and engineers who worked on School Board projects. Mr. Goode did not, however, initiate formal disciplinary proceedings against Ms. Blackwood during the time he was her supervisor. During the period extending from October 2002 through mid-January 2003, Ms. Blackwood corresponded by e-mail with Charlotte Greensbarg, an assistant to a member of the School Board, and with Jilda Unruh, a reporter for a local television station, and provided them with documents she obtained from the Building Department. Ms. Blackwood did not inform Mr. Martin, her supervisor, that she was providing these documents and information about the inner workings of the Building Department. Dr. Frank Till, the Superintendent of Schools for Broward County, became aware of Ms. Blackwood's correspondence and asked for an explanation of her intention. Ms. Blackwood responded with a lengthy memorandum about the problems she believed existed with the backlog of punch lists for School Board construction projects that had not been completed and with other matters handled by the Building Department. This memorandum did not provide an answer acceptable to Dr. Till, and he again requested an explanation in a memorandum dated May 27, 2003, but Ms. Blackwood refused to provide any additional explanation. Ms. Blackwood was not disciplined for her actions. Ms. Blackwood's relationship with Mr. Martin Both Ms. Blackwood and Mr. Martin applied for the position of CBO after Mr. Gilbert left the position. Although Mr. Goode returned as acting CBO, Mr. Martin was ultimately offered the position. The working relationship between Mr. Martin and Ms. Blackwood was initially amicable but eventually deteriorated and ultimately became contentious and adversarial. In May 2003, shortly after he became CBO, Mr. Martin requested a non-disciplinary meeting with Ms. Blackwood. He was aware that there was hostility among some of the building inspectors under her supervision, and he called the meeting to discuss ways she could improve the working relationships with these employees. Mr. Martin asked Marilynn Strong, who was at the time coordinator of evaluations in the School Board's Human Relations Department, to attend the meeting. The meeting started out well, but, according to Ms. Strong, Ms. Blackwood began shouting at Mr. Martin, telling him that she was disappointed in his leadership. She appeared very angry, and Ms. Strong was shocked at Ms. Blackwood's behavior. Ms. Strong received a number of complaints from several of the building inspectors under Ms. Blackwood's supervision, and, in the fall of 2003, she, Mr. Martin, Ms. Blackwood, and Gary Itskowitz, Ms. Blackwood's BTU-TSP representative, met to discuss these complaints. Ms. Strong shared with Ms. Blackwood that the complaints involved perceived harassment and intimidation, creation of a bad working environment caused by Ms. Blackwood's yelling, and interference with the building inspectors' work. Ms. Strong advised Ms. Blackwood that the employees felt that their work environment was adversely affecting them personally and professionally and that Ms. Blackwood's behaviors were continual, pervasive, and offensive. Finally, Ms. Strong advised Ms. Blackwood that several of building inspectors under her supervision had asked for transfers from her section. On January 28, 2004, Mr. Martin issued two letters of reprimand to Ms. Blackwood, in which he advised her that if her actions were repeated, she would be subject to discipline, "up to and including termination." One letter was a reprimand for "Failure to Know or Disclose Information" and referred to a letter dated August 29, 2003, in which Ms. Blackwood challenged Mr. Martin's decision to issue Temporary Certificates of Occupancy for buildings at McArthur High School. The second letter was a reprimand for "Exceeding Authority" and referred to Ms. Blackwood's directing the principal of an elementary school to occupy portable buildings before a Certificate of Occupancy, which could be signed only by the CBO, had been issued. In addition to issuing the letters, Mr. Martin held a counseling session with Ms. Blackwood on January 28, 2004. Ms. Blackwood filed grievances with respect to the two reprimands, asserting that they were untimely under the 20-day rule in the Collective Bargaining Agreement; the grievances were successful, and the letters of reprimand were rescinded. In an e-mail dated January 20, 2004, to John Hamrich of the Florida Department of Education, Ms. Blackwood complained that Mr. Martin had "reassign[ed] all of the building inspectors to other construction projects replacing [building] inspectors at all on-going capital construction" and instituted a policy to rotate building inspectors from one project to another every 60 days.7 Ms. Blackwood pointed out what she perceived to be a number of problems with Mr. Martin's new policy, and, under the guise of asking for clarification of what she considered to be the negative effect of these changes, Ms. Blackwood included numerous charges of irregularities in the running of the Building Department. Ms. Blackwood also accused Mr. Martin of allowing new facilities to open "with outstanding life safety violations" by issuing Temporary Certificates of Occupancies [sic]."8 In a memorandum to Ms. Blackwood, dated February 18, 2004, sent through Kenneth Klink, the School Board's Chief Operating Officer, and carrying the heading of "Reprimand - Rotation of Inspectors," Mr. Martin stated that he considered the e-mail message to Mr. Hamrick "extremely insubordinate, and detrimental to the school district" and that "[i]n the future, continued insubordination will result in disciplinary action, up to and including termination." Ms. Blackwood received the letter on March 8, 2004.9 Ms. Blackwood filed a grievance with respect to the March 8, 2004, letter of reprimand on the grounds that it was untimely under the 20-day rule in the Collective Bargaining Agreement. A meeting was held on June 9, 2004, with Mr. Martin, Ms. Blackwood, Mr. Itskowitz, and Linda Wetzel, Director of the School Board's Employee Relations Department. The letter of reprimand and the grievance were discussed, and Mr. Martin stated that he had sufficient grounds to issue Ms. Blackwood a letter of reprimand. It was determined, however, that the letter of reprimand had not been issued timely under the provisions of Article 9 of the Collective Bargaining Agreement. The grievance was, therefore, successful, and the letter of reprimand was rescinded. During the June 9, 2004, meeting, Mr. Itskowitz stated that the BTU-TSP had received a number of complaints from employees in Ms. Blackwood's department, and he asked if he could bring in a mediator to work with Ms. Blackwood and the employees that she supervised in an attempt to resolve some of the conflicts. Ms. Wetzel and Mr. Martin agreed that this would be beneficial, but the mediation was never held. Ms. Blackwood filed a complaint with the Inspector General of the Florida Department of Education on October 4, 2004, in a letter headed "Hurricane Shelters and Other Outstanding Construction Issues at Broward County Schools." In the complaint, she criticized Mr. Martin in particular and the district administration in general for the failure to complete hurricane shelters with proper safeguards and to turn them over to local emergency organizations for use. Ms. Blackwood pointed out that she had brought the problems to the attention of Mr. Martin and others for several years and that no action had been taken. The Inspector General wrote to Mr. Till and requested that the matter be investigated at the local level and a report prepared for his office no later than March 31, 2005. The results of the investigation are not included in the record of this hearing. When Mr. Martin first assumed the position as CBO, he was advised by the central office that Mr. Goode and Mr. Gilbert had had problems with Ms. Blackwood and that he should consider having a series of counseling sessions to attempt to resolve any problems Ms. Blackwood was having. Mr. Martin had a number of non-disciplinary counseling sessions with Ms. Blackwood, which were arranged by the School Board's personnel department or its employee relations department and were attended by either Linda Wetzel or Marilyn Strong. Mr. Martin's purpose in conducting these counseling sessions with Ms. Blackwood was to address what he perceived as her ongoing insubordinate, subversive, and argumentative conduct in the workplace. The counseling sessions were not productive, however, because Ms. Blackwood was confrontational and argumentative. Mr. Martin believed that Ms. Blackwood's way of conducting herself in the workplace had not altered at the time he left his position as CBO in February 2005. Mr. Martin memorialized one non-disciplinary counseling session that was held on December 9, 2004, with Ms. Blackwood regarding "her attitude toward her job role in the Building Department, and the specific parameters of her job responsibilities."10 Lynn Strong, of the School Board's Department of Human Resources, also attended the meeting. Mr. Martin summarized Ms. Blackwood's conduct during the meeting as follows: During the meeting, Ms. Blackwood dominated the conversation and continually turned it around to a discussion of various people not meeting her expectations or managing the Building Department in the manner she thinks is appropriate. Given that the purpose of the meeting, as stated at the beginning, was to discuss how the Building Department could move forward in a unified manner toward common goals, it is significant that at no time during the conversation, which lasted for roughly an hour and fifteen minutes, did Ms. Blackwood ever make any comments pertaining to the effective functioning of the organization, or reducing the levels of stress and animosity that exist in it as a result of her insistence on having her own way. All of her comments were directed at how people, me included, should change to conform to her way of thinking and performing their job duties. Until Ms. Blackwood chooses to help unify and improve the Department rather than criticize and undermine it, she will not be an effective supervisor.[11] Mr. Martin scheduled another meeting with Ms. Blackwood for December 14, 2004, in order to discuss the parameters of her job responsibilities, but the evidence does not reflect that this meeting was held. At some point during Mr. Martin's tenure as CBO, Ms. Blackwood filed a complaint against him with the Department of Business and Professional Regulation, the agency responsible for issuing and regulating the licenses held by Mr. Martin. In her complaint, Ms. Blackwood accused Mr. Martin of having issued Temporary Certificates of Occupancy for school buildings that were in violation of the Code. The Department of Business and Professional Regulation investigated the complaint and found that there was no probable cause to institute disciplinary proceedings against Mr. Martin. Ms. Blackwood also filed complaints against two other co-workers in the Building Department. Mr. Martin prepared performance appraisals for Ms. Blackwood for the 2003-2004 and 2004-2005 school years, with an overall rating of effective.12 Mr. Martin rated Ms. Blackwood "effective" in all areas of each appraisal except "leadership"; Mr. Martin rated Ms. Blackwood "ineffective" in this category in both appraisals, commenting in the 2003-2004 school year appraisal that Ms. Blackwood "[a]ctively challenges and undermines decisions and authority of Chief Building Official" and in the 2004-2005 school year appraisal that "Ms. Blackwood is frequently argumentative rather than collaborative with respect to coworkers and stakeholders; contributes to a departmental atmosphere that is strained, and where communication is impeded."13 Even though Ms. Blackwood's overall appraisal rating was "effective," she filed grievances with respect to both performance appraisals. The grievances had not been resolved as of the date of final hearing in this case, so the performance appraisals have not been finalized. On or about February 15, 2005, Mr. Martin discovered a copy of an anonymous document identified as "Letter to the Editor" circulating around the employees of the Building Department. The letter purported to be a response to comments by Mr. Martin to the press to the effect that the Building Department was dysfunctional. The letter included comments critical of the School Board, School Board construction project managers, "influential builders, architects and engineers," and district, area, and school site staff for "preventing the School Board Building Department from performing their duties as required by State Statute/law, including the opening of safe schools for occupancy," and it implied that Dr. Till had a conflict of interest to the extent that he directly supervised the Building Department and was also responsible for ensuring that the Broward County schools opened on time.14 The author of the letter, whose identity was not known in February 2005 but who was later revealed to be Ms. Blackwood, included details of specific incidents that she considered inappropriate and a number of complaints regarding the way certain issues were handled by the School Board or the school district's administration. Mr. Martin considered the allegations in the letter to be sufficiently serious that he wrote an e-mail to the Building Department staff trying to reassure them and encourage them to continue doing their jobs to the best of their ability. The "Letter to the Editor" that was circulating around the Building Department on or about February 15, 2005, was a draft that Ms. Blackwood provided only to the union for comment and to the Building Department's union steward; Ms. Blackwood did not put the document in general circulation. Ms. Blackwood wrote the letter because of her frustration over quotes attributed to Mr. Martin that appeared in a newspaper and because she thought that Mr. Martin was one of the reasons the Building Department was dysfunctional. At the time she provided the document to the union, Ms. Blackwood did not know whether she would send it to the newspaper for publication, and she did not, in fact, do so. Ms. Blackwood's relationship with building inspectors under her supervision Ms. Blackwood's working relationship with the building inspectors under her supervision was generally good when she first became Senior Supervisor of Building Inspectors in 1999. In late 2001 and early 2002, several of the building inspectors under Ms. Blackwood's supervision began experiencing problems in their working relationship with her. The working environment became very strained, and friction developed between Ms. Blackwood and some of the building inspectors. The tense atmosphere apparently coincided with the hiring of Susan Kanner and Maria Rouco and the filing of the lawsuit against the School Board by Ms. Blackwood, Ms. Kanner, and Ms. Rouco. Several building inspectors felt intimidated by Ms. Blackwood and believed that they faced the threat of retribution if they disagreed with Ms. Blackwood or her co- litigants. A rumor circulated among the building inspectors that Mr. Goode had been personally named as a defendant in the lawsuit, and several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not agree with her interpretation of the Code, they would be included as defendants in the lawsuit. As it turned out, the rumor regarding Mr. Goode's being named a do-defendant was false, but it nonetheless had the effect of increasing the tension in the Building Department. Building inspectors must be licensed by the state as building inspectors, and they often hold several additional licenses relating to the construction trades. They must use their own judgment to determine whether particular construction satisfies code requirements and to determine how a violation should be corrected. The perception of several of the building inspectors was that Ms. Blackwood expected them to perform inspections and fail any work that did not conform to Ms. Blackwood's interpretation of the Code. After they learned that Ms. Blackwood had filed a complaint with the Department of Business and Professional Regulation against Mr. Martin, several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not conform to Ms. Blackwood's interpretation of the Code, their licenses would be in jeopardy. In fact, several of the building inspectors feared retribution from Ms. Blackwood because they believed she was implicitly threatening to report them to the Department of Business and Professional Regulation when she emphasized during staff meetings that their licenses and their jobs would be jeopardized if they failed to enforce the applicable statutes, rules, and codes according to her interpretation. Several of the building inspectors also experienced stress and felt intimidated because Ms. Blackwood, Ms. Kanner, and Ms. Rouco routinely sent accusatory e-mails that required responses from the building inspectors to defend their decisions and because Ms. Blackwood frequently yelled at some of the building inspectors in front of other employees. In a letter dated August 13, 2003, Jerolie Strong, a building inspector supervised by Ms. Blackwood, wrote a letter to the director of the School Board Office of Equal Educational Opportunities complaining of ongoing problems with Ms. Blackwood. Although Ms. Strong indicated in the letter that the problems she had with Ms. Blackwood were of long duration, she focused on an incident that occurred on August 13, 2003, in which Ms. Blackwood wrongly accused Ms. Strong of not following the appropriate procedures when doing inspections and, according to Ms. Strong, yelled at her in front of the office staff and some of Ms. Strong's fellow building inspectors and continued yelling at her in a conference room. Ms. Strong felt that, at least in part, Ms. Blackwood's behavior towards her was the result of discrimination on the basis of race. Ms. Strong is not aware of anything that was done in response to her complaint. In an e-mail dated February 4, 2004, Robert Hamberger, a building inspector under Ms. Blackwood's supervision, wrote a letter of complaint to Mr. Martin about misinformation Ms. Blackwood provided to the building inspectors under her supervision. Mr. Hamberger summarized information purportedly provided by Ms. Blackwood in staff meetings held between June 3, 2003, and December 3, 2003, that he considered incorrect. Mr. Hamberger concluded the e-mail with the following concerns: One, we are being coerced and intimidated to perform our inspections contrary to the intent of the [Florida Building] code resulting in added expense and delays to projects based on incorrect interpretations. Two, it is more than apparent that Ms. Blackwood's objectivity and that of Ms. Kanner's and Ms. Rouco's has been lost. Three, all three have demonstrated numerous times in the field and at staff meetings a gross lack of experience, which lead to some of these errant interpretations. We see a true conflict of interest in how these three function. They are undermining the very system that they are paid to service for the purposes of personal gain. The bottom line is the creation of disharmony and confusion amongst the building inspectors.[15] In Mr. Hamberger's view, the Code could be interpreted several ways, and building inspectors had the discretion to interpret gray areas of the Code in the way they thought appropriate. Mr. Hamberger believed that the goal of Ms. Blackwood, Ms. Kanner, and Ms. Rouco was to bring the School Board's building program to a halt to further their chances of prevailing in their lawsuit and that Ms. Blackwood insisted on overly-strict interpretations of the Code in order to slow down construction. Mr. Hamberger prepared a memorandum dated February 27, 2004, directed to Michael Garretson, the School Board's Deputy Superintendent of Facilities and Construction Management. The memorandum was signed by Mr. Hamberger, Al Jackson, Valeria Oscheneek, Jose Sadin, Gigi (Jerolie) Strong, and Irv Tutunick, who were all building inspectors under Ms. Blackwood's supervision. In the memorandum, these individuals complained about the deterioration of the working conditions and the extremely low morale in the Building Department, which they attributed to the Ms. Blackwood's management style. They pointed out that, in their view, "retribution and intimidation are status quo" for anyone opposing Ms. Blackwood, pointing out the she routinely reminds anyone disagreeing with her that their licenses could be in jeopardy if they failed to enforce the Code, statutes, and rules.16 The building inspectors accused Ms. Blackwood of using bullying tactics, of discriminating against building inspectors who do not agree with her, of attempting to undermine the CBO, Mr. Martin, by standing over his shoulder "hoping he will make an error in judgment, so that she can report him to the Department of Business and Professional Regulation or the DOE [Department of Education]."17 Finally, the building inspectors stated that they could not understand why the situation with Ms. Blackwood had been allowed to continue, and they requested that "some action . . . be taken soon to correct the abhorrent working conditions prevalent in our Department."18 On March 3, 2004, Mr. Martin submitted a Personnel Investigation Request to the Special Investigative Unit of the School Board's Office of Professional Standards and referred the complaint of the six building inspectors for investigation. The report of the investigator from the Special Investigative Unit found no evidence that Ms. Blackwood "ha[d] created a hostile work environment by requiring inspectors to follow state guidelines."19 The inspector did, however, note that his investigation revealed some issues that needed to be addressed by a labor relations expert or senior management. Mr. Hamberger complained to Mr. Martin of a negative encounter with Ms. Blackwood on November 19, 2004. On that date, Ms. Blackwood accused Mr. Hamberger of perjuring himself in his testimony at the trial of Ms. Blackwood's lawsuit. Ms. Blackwood made the accusation in a loud voice in the presence of at least one other employee of the Building Department. This encounter was one of the items addressed in the non-disciplinary meeting Mr. Martin held with Ms. Blackwood on December 9, 2004; according to Mr. Martin, Ms. Blackwood denied in this meeting that her comments to Mr. Hamberger had been heated or acrimonious. In late 2004, Mr. Hamberger found the working conditions created by Ms. Blackwood so stressful and onerous that he requested and was given a transfer to the Building Department section supervised by Ron Morgan. Ms. Oscheneek, one of the building inspectors who signed the February 24, 2004, complaint against Ms. Blackwood, found working under Ms. Blackwood's supervision to be very stressful. She felt fearful, very uncomfortable, and intimidated by Ms. Blackwood's "screaming" at her in the office in front of others, and she felt threatened and was afraid that Ms. Blackwood would report her to Department of Business and Professional Regulation if she made a mistake in her inspections or disagreed with Ms. Blackwood or Ms. Kanner or Ms. Rouco. Ms. Oscheneek felt that her effectiveness as a building inspector was negatively influenced by Ms. Blackwood, and, in December 2004, on the advice of her doctor, Ms. Oscheneek transferred to the group of building inspectors supervised by Ron Morgan. Irving Tutunick, a long-time building inspector with the School Board, considered Ms. Blackwood a very good supervisor until approximately 2001, when he perceived that the hiring of Ms. Kanner and Ms. Rouco created a split among the building inspectors supervised by Ms. Blackwood. In Mr. Tutunick's view, the workplace became very uncomfortable for him, especially since he believed that Ms. Blackwood did not approve of the way he carried out his job responsibilities. In particular, Ms. Blackwood treated as a major offense any criticism of Ms. Kanner's or Ms. Rouco's Code interpretations, and, in Mr. Tutunick's view, the "wrath of god" would rain down from Ms. Blackwood if any building inspector disagreed with their interpretations. Mr. Tutunick also was uncomfortable in the workplace because of Ms. Blackwood's tendency to, in Mr. Tutunick's words, "fly off the handle and chastise [his] co- workers" in front of the entire office. Mr. Tutunick also felt that Ms. Blackwood's management style adversely affected his ability to do his job because he perceived that Ms. Blackwood considered the building inspectors who did not agree with her or Ms. Rouco ignorant about construction and the process of inspections and Code interpretation. Mr. Tutunick signed the February 27, 2004, memorandum to Mr. Garretson complaining about the hostile working environment created by Ms. Blackwood. He retired from the School Board in February 2005. Several of the building inspectors supervised by Ms. Blackwood considered her an excellent supervisor who supported her staff, tried to improve her staff's performance, and took seriously her responsibility to ensure that the buildings constructed for the School Board met the requirements of the Code and ensured the life health and safety of the students and staff who would be using the buildings. They agreed that there was a great deal of yelling in the Building Department because that type of behavior is typical for the construction industry. All of the building inspectors under Ms. Blackwood's supervision agreed that building inspectors are under a great deal of stress trying to deal with the competing goals of ensuring that school buildings meet Code requirements but are constructed in a cost-effective way and meet deadlines for opening. At times, building inspectors are under pressure to pass inspections in order to avoid delays in project completion. Ms. Blackwood frequently addressed Code interpretation in staff meetings because she was concerned with inconsistency among the building inspectors in their Code interpretations. Ms. Blackwood's working relationship with clerical and secretarial staff During his exit interview in February 2005, Mr. Martin told Donnie Carter, Deputy Superintendent of Operations for the School Board, of the problems he had experienced with Ms. Blackwood and of his concern about the negative effects of Ms. Blackwood's conduct. Mr. Martin believed that Mr. Carter decided to initiate a preliminary investigation into the Building Department as a result of the information he provided to Mr. Carter during his exit interview. On February 16, 2005, Mr. Carter was visiting the Building Department offices, when several members of the Building Department's clerical staff requested a meeting with him. Eight individual staff members met with Mr. Carter for approximately one and one-half hours, and they advised Mr. Carter of concerns they had regarding their working relationship with Ms. Blackwood and of the negative impact Ms. Blackwood was having on their job performance and, in some cases, their health. There were, among others, specific complaints that Ms. Blackwood frequently yelled at co-workers and staff in the workplace; caused some employees to cry because of her harsh treatment of them; engaged in tyrannical actions as supervisor; repeatedly belittled management, and was often disrespectful to her supervisor, Mr. Martin. As a result of this meeting, Mr. Carter initiated a full investigation of the overall operation of the Building Department but did not specifically target Ms. Blackwood. Mr. Carter's purpose in conducting the investigation was to determine the cause of the negative working environment in the Building Department and the reasons for the delays in opening new buildings. Mr. Carter asked the employees in the Building Department to complete a questionnaire that contained eight questions that inquired about their perceptions of the leadership and the working environment in the Building Department; any statements or actions of a supervisor that they wanted to point out; whether they had witnessed unprofessional or abusive conduct by a supervisor or co-worker and, if so, why they had not previously come forward; whether the working environment was supportive or hostile to productivity and employee satisfaction; whether supervisors encouraged good working conditions and cooperation and teamwork among employees; what could be done to improve the working environment and quality of supervision; and whether the employee's supervisor treated him or her in a supportive, professional manner. After he received responses to the questionnaires, Mr. Carter interviewed each of the individuals. Either Ms. Wetzel or Ms. Strong was present at these meetings. The information Mr. Carter received from the Building Department staff indicated to him that Ms. Blackwood was responsible for the low morale and the negative performance in the Building Department because of her perceived unprofessional conduct, her extreme lack of leadership, her lack of support for her staff, the confrontational way she conducted herself in the workplace, the tone of voice in which she spoke to people, the demeaning manner in which she spoke to staff, and her disrespectful attitude toward her supervisor, Mr. Martin. In or around February 16, 2005, Mr. Carter was advised of three specific instances of alleged misconduct by Ms. Blackwood involving three employees of the Building Department. The first incident occurred on February 16, 2005, and involved Jerolie Strong. During a conversation with Ms. Blackwood, Ms. Strong told her that she intended to ask Mr. Martin to sign an application for her to receive a provisional license to perform plan reviews. At the time of her discussion with Ms. Strong, Ms. Blackwood was writing an e-mail to the BTU-TSP about certain matters at the Building Department, and she included in the e-mail the statement that Mr. Martin was "signing certifications for inspectors to get provisional licenses" to perform plan reviews.20 Ms. Strong saw the statement and became very upset because this was not what she had told Ms. Blackwood. In Ms. Strong's view, Ms. Blackwood's behavior in this instance was typical and part of an ongoing pattern of misinterpreting and passing along a distorted version of something that she had been told. Ms. Strong told Ms. Blackwood that the statement she had made in the e-mail about Mr. Martin was incorrect, and Ms. Blackwood corrected the statement in a subsequent e-mail. Ms. Strong reported this incident to Mr. Carter as part of an ongoing pattern of misrepresentation on Ms. Blackwood's part. The second incident occurred on or about February 4, 2005, and involved Diane Clark, a secretary who worked in Ms. Blackwood's section. Ms. Clark reported this incident to Mr. Carter in an e-mail dated February 18, 2005. Ms. Clark's encounter with Ms. Blackwood occurred when Ms. Clark passed along to Ms. Rouco some concerns Mr. Martin had regarding the way Ms. Rouco had filled out a "Property Pass" form and regarding Ms. Rouco's request for compensatory-leave time. Ms. Clark gave Ms. Rouco Mr. Martin's message, and Ms. Blackwood interjected her opinion that Mr. Martin was incorrect with respect to both the request for compensatory-leave time and the procedure for completing the "Property Pass" form. Ms. Clark explained the rationale for Mr. Martin's interpretation of the requirements for the "Property Pass" to Ms. Blackwood, and Ms. Blackwood continued disagreeing with Ms. Clark in what Ms. Clark perceived to be a loud voice. Ms. Clark got up from her desk and started to walk away, and Ms. Blackwood began to yell at her. Ms. Clark responded to Ms. Blackwood in a raised voice and left the building. The incident was overheard by everyone present in the office at the time. Ms. Clark reported another incident to Mr. Carter in e-mails dated February 17 and 18, 2005, involving Ms. Blackwood's reaction to a negative comment about Irene Kuziw, Mr. Martin's secretary, that Ms. Rouco made to Dean Heminger, a building inspector that Ms. Blackwood supervised. At Mr. Martin's request, Ms. Kuziw approached Mr. Heminger's desk, which was next to Ms. Rouco's desk, and asked Mr. Heminger to do two inspections as a special assignment from Mr. Martin. After Ms. Kuziw left their work area, Ms. Rouco questioned Mr. Heminger about his willingness to take an assignment from Mr. Martin when Ms. Blackwood was his supervisor. Ms. Rouco then commented to Mr. Heminger that Ms. Kuziw was "a serpent with two legs" or a "two-legged serpent." Ms. Kuziw did not hear the remark, but Ms. Clark overheard the comment. Ms. Blackwood was not present when Ms. Rouco first made the comment, but, approximately 15 minutes later, Ms. Rouco repeated the comment about Ms. Kuziw in Ms. Blackwood's presence, and Ms. Blackwood chuckled at the remark. Ms. Clark witnessed this incident and reported it to Mr. Martin and to Ms. Kuziw. Disciplinary procedures followed by Mr. Carter Based on the information he gathered during his investigation and on the incidents that occurred in February 2005, specifically the February 15, 2005, incident involving Ms. Strong and the February 4, 2005, incident involving Ms. Clark, Mr. Carter decided that Ms. Blackwood had committed misconduct in office and insubordination and that the appropriate discipline for her actions should be termination of her employment with the School Board. Mr. Carter reached the conclusion that termination was the appropriate discipline by considering the history of Ms. Blackwood's employment with the School Board over the previous five years, and he concluded that the behavior complained of by the staff and building inspectors in February 2005 was ongoing and formed a consistent pattern of behavior on Ms. Blackwood's part in her position as a supervisor. On February 17, 2005, Mr. Carter removed Ms. Blackwood from her duties as a Senior Supervisor of Building Inspectors and advised her in a memorandum that, effective immediately, she was assigned to administrative duties. Mr. Carter notified Ms. Blackwood in a letter dated March 10, 2005, that she was to report to his office on March 15, 2005, for "a pre-disciplinary meeting regarding your inappropriate supervisory conduct."21 No other conduct or specific incident was included in the notice dated March 10, 2005. Ms. Blackwood and her union representative attended the meeting on March 15, 2005, and Mr. Carter presented Ms. Blackwood with the materials he had collected during his investigation. These materials were quite extensive, and Ms. Blackwood asked if she could have additional time in which to study the information and formulate her response. They agreed that the pre-disciplinary meeting would be re-convened on April 5, 2005, and that the 20-day time frame in the Collective Bargaining Agreement for imposing discipline would be extended accordingly. At the meeting on April 5, 2005, Mr. Carter identified several areas of concern, which were discussed with Ms. Blackwood and to which Ms. Blackwood was allowed to provide an explanation. Specifically, Mr. Carter advised Ms. Blackwood of problems with her failure to demonstrate an appropriate leadership style, that she demonstrated a divisive leadership style, that she acted in a loud and threatening manner towards her co-workers, that there was evidence of her favoritism with regard to certain employees under her supervision, that her behavior was having a psychological and medical impact on some of her subordinates, that she engaged in threatening behavior regarding reports to the Department of Business and Professional Regulation, that her behavior resulted in multiple employees having to seek medical attention and/or requesting to be removed from under her supervision, that she failed to demonstrate a leadership style that supported the School Board's strategic plan, and that as a result of all of these behaviors, she had lost response among the employees in the Building Department such that it was limiting her ability to lead.[22] Mr. Carter also discussed with Ms. Blackwood the "Letter to the Editor" that circulated in the Building Department in February 2005 because, by the time of that meeting, it was known that Ms. Blackwood was the author.23 Ms. Blackwood was given the opportunity to respond to the charges presented by Mr. Carter, and she requested that Mr. Carter do a follow-up investigation with some of the employees he had previously interviewed. Mr. Carter met again with the employees pursuant to Ms. Blackwood's request. In a letter dated April 29, 2005, and addressed to Jerrod Neal, Field Staff Representative for the BTU-TSP, with a copy sent to Ms. Blackwood, Mr. Carter advised Ms. Blackwood that the letter constituted the 20-day notice of the intent to impose disciplinary action, as required by the terms of the Collective Bargaining Agreement. Mr. Carter continued: This letter is to inform you that, after completing the investigation regarding the allegations of inappropriate supervisory conduct by Ms. Blackwood, advising Ms. Blackwood of the charges and the basis for them, and meeting with you to consider Ms. Blackwood's position, I have decided to recommend that Ms. Blackwood be terminated/discharged from employment with the School Board of Broward County. This recommendation is based upon my determination that Ms. Blackwood has engaged in misconduct including, but not limited to, problems with effective communication, a leadership style inappropriate for a supervisor, violations of the School Board's workplace violence policy, and harassive [sic] conduct which has interfered with the ability of other individuals to perform their work responsibilities and resulted in emotional harm to some employees.[24] In a letter dated May 27, 2005, Mr. Carter transmitted to Ms. Blackwood a letter from Dr. Till advising her that Dr. Till was recommending to the School Board that she be terminated from her employment. An Administrative Complaint was attached to the May 27, 2005, letter, and Ms. Blackwood was told that the allegations in this complaint set forth the charges on which the recommendation was based. The School Board voted on June 7, 2005, to initiate termination proceedings with respect to Ms. Blackwood. Summary and ultimate findings of fact Pursuant to the provisions of Article Nine of the Collective Bargaining Agreement, Ms. Blackwood can only be disciplined if the discipline is imposed within 20 days of the date on which a violation occurred. In this case, the evidence presented by the School Board is insufficient to establish that Ms. Blackwood committed misconduct in office or insubordination as a result of her conduct occurring on or about February 15, 2005. The incident involving Ms. Blackwood and Ms. Clark occurred on February 4, 2005, outside the 20-day time period. Although the incident involving Ms. Strong occurred on February 15, 2005, Ms. Blackwood's including in an e-mail information that inaccurately conveyed the statement Ms. Strong made to her about Mr. Martin signing an application for a provisional license does not rise to the level of misconduct, even if it was part of a pattern of distortions by Ms. Blackwood. Ms. Blackwood's conduct on this occasion also failed to constitute gross insubordination because there was no evidence presented by the School Board to establish that she acted in violation of an order given by anyone with proper authority. Finally, to the extent that the draft "Letter to the Editor" formed a basis for the School Board's decision to terminate Ms. Blackwood's employment, there is no evidence that Ms. Blackwood committed misconduct by drafting the letter, nor was there any evidence that Ms. Blackwood had been ordered not to communicate to the press regarding the problems that she perceived with the Building Department and the School Board's building program in general. The evidence presented by the School Board regarding Ms. Blackwood's employment history is sufficient to establish that, between 2001 and February 2005, she engaged in acts of misconduct that were sufficiently serious that her effectiveness as a Senior Supervisor of Building Inspectors was severely impaired. The evidence presented by the School Board regarding Ms. Blackwood's employment history is also sufficient to establish that she engaged in numerous acts of insubordination that, taken in the aggregate, rose to the level of gross insubordination. Indeed, the evidence submitted by the School Board is sufficient to establish that, without doubt, Ms. Blackwood's conduct in the workplace and as a Senior Supervisor of Building Inspectors was totally unacceptable for an extended period of time. Pursuant to the undersigned's interpretation of the provisions of Article Nine of the Collective Bargaining Agreement, however, Ms. Blackwood cannot be disciplined for events occurring outside the 20-day time period set out in the Collective Bargaining Agreement; but for this conclusion, Ms. Blackwood's ongoing misconduct and insubordination would more than justify termination of her employment with the School Board. In their various attempts to discipline Ms. Blackwood, School Board personnel did not adhere to the disciplinary procedures set forth in the Collective Bargaining Agreement and were, therefore, unable to prevail against the grievances Ms. Blackwood filed with respect to each attempt to subject her to discipline. Because the School Board did not submit evidence sufficient to establish that Ms. Blackwood committed misconduct in office or insubordination within the 20-day time period set out in Article Nine of the Collective Bargaining Agreement, she cannot now be disciplined for these previous violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Amended Administrative Complaint against Charlene Rebecca Blackwood. DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 7th day of March, 2007.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Ramiro Palma, be found guilty as charged in the Administrative Complaint dated August 31, 1981. It is further RECOMMENDED that Respondent's registered building contractor's license be suspended for one year after the date of the final order entered in this proceeding and that Respondent pay a $1000 administrative fine. DONE and ENTERED this 3rd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of February, 1982.
The Issue Whether the Respondent committed the violation alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating building code administrators and inspectors. At all times material to the allegations of this case, the Respondent was either an applicant for licensure or held a building inspector license, license number BN 0002765. At all times material to this case, the Respondent was employed by the Martin County Building Department as a Building Inspector. Harriet R. Edwards owns a residence located at 2595 Hickory Avenue, Jensen Beach, Florida. This home is located in Martin County, Florida. At some point in early 1996, it became Ms. Edwards' desire to construct an addition to her residence. She retained a contractor to perform the work and returned to Ohio during the time of the construction. When Ms. Edwards returned to Florida she was dissatisfied with the quality of the work. Mr. Joyce, Ms. Edwards' friend, expressed that they had expressed a desire for, and requested only, a high quality of work for the addition to Ms. Edwards' home. Upon investigation it was discovered that the permit card located at the construction site had been initialed by the Respondent. All of the inspections listed on the permit card occurred prior to December 17, 1996. The Respondent was issued a provisional license to perform building inspections on or about December 17, 1996. All of the inspections initialed by the Respondent had been performed by another inspector employed by the Martin County Building Department, Bobby T. Chambers. Mr. Chambers was fully licensed at the times of the inspections and acted as the Respondent's training supervisor. The Respondent accompanied Mr. Chambers during a training period during which time Mr. Chambers was to instruct the Respondent in the procedures and practices of the Martin County Building Department. At all times material to the allegations of this complaint, the Martin County Building Department allowed unlicensed employees to assist its inspectors at construction sites. Such employees were authorized to initial permit cards and to radio to the main office the information regarding inspections performed at the job sites. Because of this informal and haphazard reporting system the official records maintained by the County falsely reflected that the Respondent had performed the inspections listed in this Administrative Complaint. He did not. The records were maintained inaccurately. By initialing the permit card and transmitting the information to the County, the Respondent was performing his duties as an employee-in-training and as directed by his supervisors. The Respondent did not intend to mislead officials and did not intend to file a false report required by law. As a result of the flawed training system used by the Martin County Building Department, this Respondent initialed permit documents prior to licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Building Code Administrators and Inspectors Board, enter a final order dismissing the Administrative Complaint against this Respondent. DONE AND ENTERED this 23rd day of October, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2000. COPIES FURNISHED: Dorota Trzeciecka, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Michael A. Rodriguez, Esquire County Attorney's Office 2401 Southeast Monterey Road Stuart, Florida 34996 Leif Grazi, Esquire LAW OFFICES OF GRAZI & GIANINO, P.A. 217 East Ocean Boulevard Stuart, Florida 34995 Anthony B. Spivey, Executive Director Building Code Administrators and Inspectors Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a certified roofing contractor in the State of Florida, having been issued license numbered CC C050454 by the Florida Construction Industry Licensing Board. At all times material hereto, Respondent has been the licensed qualifying agent for Hi-Tech Roofing, USA, Inc. In order to repair hurricane damage to her roof, Alice Young asked a friend to recommend someone to do the work. Her friend recommended Roy West who had done work for her and for a friend of hers. In early March 1993 Young contacted West. Young entered into a contract with West for West to repair the damage, including removal of tile, replacement of bad decking, and reinstallation of roofing felt and tile. Since the proposal form used by West was blank as to the name of the company involved, Young asked West the name of his company. West wrote Hi Teck Roofing on the proposal form. The contract price was $11,500, with payment to be made in three increments. West told Young to make her checks payable to him personally. He also told her he was from Arkansas and that he would be going back and forth between Arkansas and Miami. West began the work on or about March 17, 1993. Young gave him a check on that date for $3,833 and a second check in the same amount on March 23. He also received a partial payment of $1200 toward the balance on April 23, 1993. All three checks were made payable to Roy West and reflect that they were cashed by him using an Arkansas driver's license as identification. On March 17, 1993, Young signed a partially-completed application for a permit from the Metropolitan Dade County Building & Zoning Department for the contracted work. The application as filed with Metropolitan Dade County lists Hi-Tech Roofing USA as the contractor and Respondent as the qualifier. The application as filed purports to bear the signature of Respondent as qualifier for Hi-Tech Roofing, USA, Inc., and is dated April 1, 1993. His signature was purportedly witnessed and notarized by Eyder C. Macaya, his former secretary. Metropolitan Dade County issued the permit through Respondent's licensure for the contracted work. When the job neared completion, West requested payment in full. However, Young refused to make the final payment, alleging that the peak in the roof line was uneven, and dismissed him from the job. Before West left, Young demanded to see the permit for the work, and he showed it to her. Young contacted her attorney, who informed her that West was not licensed and advised her to file a complaint with Dade County. In 1995, two years later, Young filed her complaint with Dade County. She was contacted by an enforcement officer for the County and provided him with her documentation. The County contacted Respondent, and Respondent contacted Young. Respondent inquired about her problem with West and about the project. Respondent offered to renew the original permit and complete the roof, including repairing a leak and the peak in the roof, for the balance of the price contracted between Young and West. Respondent and Young executed a contract on May 7, 1996, and Respondent commenced his repairs on the roof. After Respondent had completed his work, Young still complained about the peak in the roof. One portion of the roof over the patio continued to leak. Respondent hired at a cost of $250 a special inspector to verify that the work was completed according to Code. Young refused to pay Respondent any money pursuant to the contract she had with him or for any of the work he performed because she still was not satisfied with the roof peak. Although Respondent filed a lien against her property for $2,634 (the balance of Young's contract with West and the full price of the contract between Young and Respondent), Respondent never enforced that lien. At no time material hereto was West licensed, registered, or otherwise qualified to perform contracting in the State of Florida. At no time material hereto was West an employee of Hi-Tech Roofing, USA. Respondent did not sign the permit application used by West to obtain the permit to perform Young's roof repairs. Further, Respondent did not authorize West to perform roof repairs to Young's residence on behalf of Respondent or on behalf of Hi-Tech Roofing, USA, Inc. Respondent did not have a business relationship with West at any time material hereto.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gail Hoge, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Mizne, pro se 801 South 21st Avenue Hollywood, Florida 33020 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact The Respondent is a registered building contractor having been issued license No. RB0032203. At all times material to this proceeding, he was the president and qualifying officer of RBR Construction Corporation. The Petitioner is an agency of the State of Florida charged with the licensing, regulation of licensure status and appropriate practice standards as pertinent hereto of construction contractors in the State of Florida. On April 11, 1979, the Respondent, doing business as RBR Construction Corporation, entered into a contract with Kathleen R. and George K. Beebe, pursuant to which he was to construct a duplex for the Beebes for a net contracted amount of $47,500. The Respondent engaged in the construction of the duplex until it was approximately 86 percent complete and then ceased all work on the project. At the time the Respondent ceased work on it, he had already received $44,290 of the contracted price. During the course of the construction, at various times, the Respondent requested and received payments or draws from the First Federal Savings and Loan Association of Broward County in the following amounts for the following purposes: Approximately $1,500 for electrical work; Approximately $1,744.32 for mill- work (cabinetry, door trim, etc.); Approximately $1,331 for installation of insulation in the duplex. The Respondent was established to have failed to pay these sums to the appropriate subcontractors who did the work. On or about March 7, 1980, the Respondent signed an affidavit required to obtain a draw payment from First Federal of Broward County. The Respondent stated in the affidavit that the millwork and trim for the duplex had been paid or would be paid from the proceeds of that draw request, which was $5,150. At the time he signed that affidavit, however, the millwork and trim had not been (as yet) paid, and they remained unpaid through the date of the hearing in the amount of $1,744.32. On or about February 13, 1980, the Respondent executed a similar affidavit in conjunction with a request for a draw payment from First Federal for the stated purpose of paying for insulation installed in the duplex. That draw amounted to $13,905. At the time he signed that affidavit, the insulation had not been paid for and remained unpaid through the date of the hearing in the amount of $1,331. On January 21, 1980, the Respondent executed a similar affidavit supporting a request for a draw payment from First Federal of Broward. In that affidavit, the Respondent affirmed that the electrical work provided for in the construction plans for the duplex had been paid for or would be paid from the proceeds of that draw request, which was in a total amount of $2,060. At the time the Respondent signed the affidavit, however, the electrical work had not yet been paid for, and it remained unpaid through the date of the hearing to the extent of $1,500.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED: That the Respondent be found guilty of violating the statutory authorities cited hereinabove in that he abandoned the subject construction project, diverted funds received for the construction of the project with the result that he could not fulfill his obligations with regard to the project, that he signed three separate false statements with respect to the construction of the project, and is guilty of misconduct in the practice of contracting. For these violations, his license should be suspended for a period of one (1) year. DONE and ENTERED this 20th day of January, 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 20th day of January, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 A. J. Ryan, Jr., Esquire A. J. Ryan, III, Esquire Hollywood Federal Bldg. 700 East Dania Beach Blvd. Dania, Florida 33004 James Linnan, Executive Director Construction Industry Licensing Board Dept. of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DPR Case No. 0011535 DOAH Case No. 82-446 vs. JAMES J. RUSSO R-B-R Construction Corp. RB 0032203 1412 Washington Street Hollywood, Florida 33020 Respondent. /
