Findings Of Fact The Petitioner is a HVAC contractor primarily in the business of contracting with governmental entities for such work. The Respondent is an agency of the State of Florida which operates the West Florida Community Care Center in Milton, Florida, and is the owner who invited bids on the subject project and announced the award of the pertinent bid to MCI. On January 15, 1993, MCI was notified by the Department that it had been awarded the contract for HVAC renovation at West Florida Community Care Center in Milton, Florida. The proposed contract was submitted to the Petitioner, who retained the contract for 45 days before executing it and returning it to the Respondent. Thus, although the Petitioner maintained at hearing that it expected to receive a notice to secure permits and to begin work in early February, 1993, MCI, rather, held the contract document until March 1, 1993 before signing it and returning it to the Department as a valid contract. On March 4, 1993, the Department sent a "notice to secure permits" to the Petitioner. In reality, it was the Department's responsibility to obtain the relevant construction permits according to the terms of the contract between the parties. The Department was initially unaware that it was designated in the contract to obtain the permits. From March 4, 1993, there was a 21-day delay, caused by the Department, before it realized that it was required to obtain the construction permits. After that time period, it requested the Department of Management Services to complete its permit review and approval process which also took some time to accomplish. The period of time actually taken by the Department of Management Services to do its permit review and approval process was not delay caused by the Department, however. In any event, however, the contract time did not begin to run until the Notice to Proceed was issued from the Department to the Petitioner. On April 28, 1993, MCI submitted its mechanical and electrical submittals or shop drawings for the project to the project engineer's employee or designee, Kenny Lewis. Mr. Lewis was responsible for receiving and reviewing the submittal drawings. The control system submittal drawings were not submitted at this time because, in Mr. Morgan's experience, these should not have been due until the mechanical and electrical submittals had been approved. Some items contained in the submittal were approved and others were rejected. Mr. Lewis instructed Mr. Morgan, MCI's President, on or about May 14, 1993, as to which drawings or portions thereof were acceptable and which were rejected. He instructed Mr. Morgan that everything should be re-submitted in one binder, including the items that needed correction and the control system. The corrected submittals, including the control system, were submitted on or about June 2, 1993. Thereafter, Mr. Lewis had the submittals before him for approval until June 28, 1993, when they were approved. Therefore, most of the month of June 1993 involved a wait by the Petitioner for the Department's approval of its drawings of those aspects of the mechanical and electrical components of the project which were found to need correction during Mr. Lewis' first review. Upon the Petitioner's showing of this amount of lag time in the approval of the submittals from June 2, 1993 to June 28, 1993, the Department did not demonstrate why such a period of time delaying the progress of the project was necessary. There is no doubt that some reasonable period of time for Mr. Lewis to approve the re-submittal drawings was necessary, but certainly no more than two weeks should have been required since the first drawings for the entire project were reviewed and variously approved or rejected by Mr. Lewis during the period of time between April 28, 1993 and May 14, 1993. Consequently, it is reasonable to infer that approximately two weeks of the period of time in June, 1993, while the re-submitted drawings were pending for Mr. Lewis' review, can be deemed "Owner caused delay". In any event, the air-handlers portion of the submittal drawings was approved with the remainder of the submittals by Mr. Lewis on June 28, 1993. It developed immediately thereafter, however, that the manufacturer of those air handlers represented in those submittal drawings was found to be unable to deliver that equipment for some 12 to 14 weeks. In order to avoid this inordinate delay, Mr. Morgan re-submitted the air-handler portion of the shop drawings changing the brand and depiction of equipment to propose Trane air- handler equipment, which would take less time for delivery. The record does not reflect what date the re-submittal of the air-handler portion of the shop drawings was made by Mr. Morgan, calling for the Trane machinery, but Mr. Lewis approved the re-submittal for the Trane equipment on August 9, 1993. The Petitioner claims that the manner in which Mr. Lewis handled the shop drawing submittals resulted in owner-caused delay, which is compensable using the so-called "Eichleay formula", derived from a relevant court decision and at issue in this proceeding. Mr. Lewis, however, can clearly not be faulted in the delay caused by the rejection of certain portions of the original submittals he considered to be unacceptable. No evidence was submitted to prove that his decision concerning certain portions of the original drawings submitted was improper. Further, the approximate two-week period of time during which Mr. Lewis reviewed the original submittals from April 28, 1993 to May 14, 1993 was not shown to be in excess of a reasonable time to perform his task under the circumstances. It was not shown, however, that it should have been necessary to take from June 2, 1993 to June 28, 1993 to approve the re-submittal of the shop drawings, inasmuch as much of the work had already been approved by Mr. Lewis, and it certainly should not have taken longer than two weeks to approve the drawings in June, since much of the work represented thereon had already been approved in May, 1993. However, for the reasons delineated below, that owner- caused delay is not actionable in this proceeding. It is also true that a substantial delay occurred for, in essence, the entire month of July and first week of August, during the period of time that Mr. Morgan had to re-submit the air-handler portion of the shop drawings to reflect the change to Trane equipment, when the originally-proposed air-handler equipment could not be timely made available. That delay, however, was not shown to be the fault of either party to the contract. The Petitioner finally submitted a written claim pursuant to the terms of the contract to the project engineer, H.M. Yonge, on or about March 30, 1994. The latest event which could possibly have given rise to a claim by the Petitioner for additional compensation based upon owner-caused delay, caused by failure to finally approve submittals on a timely basis, would have been August 9, 1993, when the final approval for the Trane equipment-related change was rendered by Mr. Lewis. The delay during July and the first week of August was not shown to be the fault of either party. The earliest date that the 21-day waiver period for making a claim, pursuant to the terms of the contract referenced below, could have began running, concerning owner-caused delay in approving plan submittals, would have been May 5, 1993 or May 10, 1993. That was the time when Mr. Morgan informed Mr. Lewis that re-submittal with corrections, and to include the control systems, would "delay the submittals if you make me wait on the controls, because we don't have them and it's going to be weeks before we do have them." The claim for owner-caused delay with regard to either possible claim date or any other should have been made within 21 days of the point when the delay occurred or the contractor became aware of the delay. In the circumstances at bar, Mr. Morgan was surely aware, on both an immediate and ongoing basis, of these potential elements of owner-caused delay, such that the Petitioner has been unable to justify waiting until March 30, 1994 to submit such a claim. Had the claim been timely submitted in accordance with paragraph 4.3.3 of the contract documents, the Respondent would have had some opportunity to attempt to cure the defect or otherwise mitigate any resulting damages to the contractor which might have been attributable to the owner. The failure to file a claim for any owner-caused delay perceived by the Petitioner in approving the plan submittals within 21 days of the event, even if it was the date of final plan approval, was prejudicial to the Department inasmuch as the Department was thus not aware of the claim such that it could have taken immediate steps to take corrective action or to mitigate any damages thus incurred by the contractor, the Petitioner herein. The contract between the parties clearly contemplates the issuance by the Respondent of a Notice to Proceed. The Petitioner was not obligated to commence work until a Notice to Proceed was issued by the Department, and the contractual time period for performance of the contract by the Petitioner did not commence until the date of issuance of the Notice to Proceed. Instead of waiting for the Notice to Proceed, however, the Petitioner began work a few days prior to April 20, 1993 by demolition and removal of the existing air-handling units. The time for performance of the contract, however, did not begin to run until the Notice to Proceed was issued on May 24, 1993. The Petitioner commenced work before receipt of a Notice to Proceed because he wished to demolish and remove the original air handlers in hopes of getting the new air- conditioning system installed and operational prior to the hot season of the year in mid summer. This may have been a commendable reason for proceeding early on the work at hand, but it also represents poor planning on the Petitioner's part in that, with the delays which developed, some of which might have been reasonably foreseen, the new air-handling equipment did not become available until late summer at the earliest. In the meantime, because of the premature demolition of the existing air handlers, the building was left without air-conditioning for its occupants, mental health patients. Therefore, the Petitioner had to obtain and install temporary air-handling units to provide air-conditioning until the permanent system could be obtained from the manufacturer and installed. Better coordination between the Petitioner and the project engineer would seem to dictate that the existing air-handling system not be removed until shortly before the new air-handling equipment would be on site and ready to install in order to minimize the down time of the air-conditioning system of the facility, which was critical to the comfort of the patients and staff at the facility. Thus, any delay caused by the Petitioner's demolition of the existing air handlers and the work he performed prior to the Notice to Proceed was not shown to be attributable to the owner but, rather, to the Petitioner's voluntary commencement of the work on the contract prior to the contractually-provided commencement date. No owner-caused delay resulted in the necessity for the contractor to obtain the temporary air-conditioning or air- handling equipment. Thus, the contractor was not shown to be entitled to reimbursement from the owner, the Department, for that expense. The Petitioner's claim also contains a request for $268.31 as payment for additional work performed but not required by the contract. The Petitioner attributes this sum to the installation of a "drop ceiling" to accommodate an over-sized fan located in the ceiling. There is no written request for authorization for this additional work from the Petitioner to the owner or the owner's engineer. No proof was presented to show that the use of an over-sized fan was the fault of the owner. In fact, Mr. Morgan testified that the fan mounted by the Petitioner was too large for the space above the ceiling. The evidence concerning this circumstance reveals that use of an excessively-sized fan in the initial installation should have been a problem foreseen by the Petitioner. It was not shown to be fault of the owner, and there is no evidence that the requisite, prior written authorization for the additional work involving installing the fan and the drop ceiling was obtained from the owner, as the contract requires. The petitioner's claim letter of March 30, 1994 also requests a total of $951.36 for extra work related to "addition of chilled and hot water lines". Mr. Morgan testified that Mr. Hester, an employee and representative of the owner at the site, "wanted, and in fact, insisted that I install isolation valves at this point . . . so they could shut that off and isolate that air handle unit five . . . ." Mr. Morgan then offered to re-use some of the existing valves he had taken out as part of his demolition effort. The Petitioner did not show why the portion of the additional requested charge of $951.36 related to the installation of isolation valves to isolate air-handler unit no. 5 was really necessary in view of the fact that existing valves that had been taken out as part of the demolition work carried out at the start of the project, prior to issuance of the Notice to Proceed, were proposed to be used by Mr. Morgan for this purported additional work requested by Mr. Hester, the owner's representative on the site. It was not shown by the Petitioner that had the existing valves been left in place, they could not have been used for that portion of the work related to the requested additional $951.36 charge for additional work related to chilled and hot water lines concerning air-handler unit no. 5. The claim letter also requests $388.31 related to purported additional work concerning "electric circuit to HVAC panels". The Respondent never provided a written authorization to the contractor for this work. The Respondent contends that the engineer required that MCI agree to provide a fully-functional system, which would not be possible without all necessary power wiring being installed, including the related circuitry concerning the panels in question. The Petitioner failed to establish that any additional work should be paid for by the Respondent related to the electric circuit to the HVAC panels because the Petitioner did not establish by preponderant evidence that such work should be deemed an addition to the scope of work and related price described in the original contract, nor that the claim was supported by a proper written request for authorization and corresponding approval, and/or change order, as required by the contract. The Petitioner failed to file written proposals for the additional work it believed was required to the Respondent at the times it perceived the additional work to be necessary during the course of the project. It did, however, induce the Petitioner to agree to a change order giving a substantial extension of time for performance of the contract to the Petitioner. Timely- filed written proposals for the purported required additional work would have enabled the Respondent to have investigated and included its approval of any legitimate extra work in the change order. In fact, however, the Petitioner never actually completed the contract and failed to thus completely perform the change order. One reason for this might have been that the Trane Company from which the Petitioner was to obtain the air-handling equipment was owed $9,010.00 by the Petitioner. It appears from the evidence, particularly the testimony of Mr. Jenkins, that Trane was unwilling to fill the order for the air-handling equipment in spite of the Petitioner's attempts to obtain it because it had never been paid for the $9,010.00 back debts owed to Trane by MCI. Pursuant to the terms of the contract (page 81), a contractor is required to submit an affidavit swearing that all costs incurred for equipment, materials, labor, and services against the project had been paid before being entitled to final payment. At the time the March 30, 1994 claim was filed, MCI had received $87,784.89 in payment for the work performed. The change order entered into by the parties raised the total scope of the work to $109,760.98. On or about March 30, 1994, the claim filing date, $30,000.00 was still owed to subcontractors and suppliers. The contract between the parties recognizes remedies for the contractor "for delays in the progress of the work" or "for changes in the work". Specifically, Article 8.4.2, at page 66, provides that: [t]he Contractor's exclusive remedy for delays in performance of the contract caused by events beyond its control shall be a claim for equitable adjustment in the contract time; provided, however, inasmuch as the parties expressly agree that over- head costs incurred by the Contractor for delays in performing the Work cannot be determined with any degree of certainty, it is hereby agreed that in the event Contractor is delayed in the progress of the Work after Notice to Proceed to mobilize on a site and to proceed with construction for causes beyond its control and attributable only to acts or omissions of Owner, Contractor shall be entitled to compensation for overhead and profit costs either as a fixed percentage of the actual cost of the change in the Work if the delay results from a change in the Work, as calculated in Section G, Supplementary General Conditions, or (b) if the delay results from other than a change in the work, at an amount for each day of delay calculated by dividing an amount equal to percent of the original contract sum by the number of calendar days of the original contract time. In the event of a change in the Work, Contractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus fixed percentages for overhead, additional profit and bond costs, as specified in Section G. The foregoing remedies for delays and changes in the Work are to the exclusion of, and thus eliminate, the total cost concept (that is, computing Contract's additional costs for changes in Work or for the cost of a delay in the progress of the Work by comparing Contractor's total actual costs with its original estimate, see McDevitt & Street Company v. Department of General Services, State of Florida, 377 So.2d 191 (Fla. 1st DCA 1979)) as a method of determining Contractor's costs associated with a change in the Work or delay in the progress of the Work. The parties also agreed, at page 10 of 13 of the contract, that the contractor shall have no right to compensation other than or in addition to that provided by the contract to satisfy any claim for costs, liabilities, or debts of any kind whatsoever resulting from acts or omissions attributable to the owner, unless the contractor has provided notice, as required by Article 8 and 12 of the AIA General Conditions (incorporated in the contract) and unless the claim is delivered to the owner. Article 8.3.1 of the AIA General Conditions, at page 16-A201-1987, provides: If the Contractor is delayed at any time in progress of Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may order. Article (paragraph) 8.3.2 provides that Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. Article (paragraph) 4.3.3, Time Limit on Claims, provides: Claims by either party must be made within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless submitted in a timely manner. Article (paragraph) 4.3.1, Definition, provides: A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and the Contractor arising out of or relating to the Contract. Claims must be by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. Article (paragraph) 4.3.7, Claims for Additional Cost, at page 12 A201-1987 of HRS Composite Exhibit 1, provides: If the Contractor wishes to make Claim for an increase in the Contract sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.3. If the Contractor believes additional costs are involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension, or (7) other reasonable grounds, Claim shall be filed in accordance with the procedures established herein. The Petitioner did not submit its original claim nor its addendum to its claim in a timely manner and with proper notice in accordance with these provisions referenced above. The parties have agreed, by the terms of their contract, that disputes concerning such claims are to be resolved exclusively in this administrative forum and in accordance with Chapter 60-4, Florida Administrative Code.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services denying the Petitioner's claim and the addendum to its claim in its entirety. DONE AND ENTERED this 31st day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2916 Petitioner's Proposed Findings of Fact None submitted. Respondent's Proposed Findings of Fact 1-44. Accepted, to the extent they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they are so inconsistent, they are deemed to be not supported by the preponderant evidence of record, or subordinate to the Hearing Officer's findings of fact on the same subject matter, or as unnecessary. In such circumstance, they are rejected. COPIES FURNISHED: Harold D. Callaway, Jr., Esquire Qualified Representative Callaway & Associates Post Office Box 2323 Gulf Shores, Alabama 36524 Robert L. Powell, Sr., Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly J. Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a Florida licensed professional engineer, holding license number PE 39759. In 2002, the Petitioner undertook an evaluation of the Respondent's design for construction of the Hunter's Creek Community Association Town Hall. The design was completed in 2001. The Respondent submitted the plans at the Petitioner's request and pursuant to a Final Order filed January 10, 2000, by the Florida Board of Professional Engineers. The Final Order required the Respondent to periodically submit a list of completed project designs to the Petitioner. The Petitioner selected project designs at random for review. The Final Order also directed the Respondent to comply with various statutory requirements. Following its review of the submitted plans and additional dialogue with the Respondent, the Petitioner brought the instant disciplinary proceeding against the Respondent. Section 1601.2.1 of the 1997 Standard Building Code requires that structures "be of sufficient strength to support the loads and forces encountered, or combinations thereof, without exceeding in any of its structural elements the stresses prescribed elsewhere in this code." Design of a structure must accommodate the various loads to a proposed structure. The "gravity load" is the weight of the structure itself. The "live load" is the transient weight of the objects (persons, furnishings, vehicles, etc.) within the structure. "Lateral loads" are horizontal forces generated against a structure by such natural forces as earthquakes or hurricanes. "Vertical loads" consist of uplift- type wind forces. Acceptable standards of engineering practice require that a professional engineer design the structure to accommodate the various loads without exceeding the allowable load values of the components. Essentially the allegations against the Respondent are that according to the plans submitted, allowable load capacities for certain materials specified in the plan were exceeded and that some materials were improperly specified. Insofar as is relevant to this proceeding, the plans specified use of Simpson H-3 framing anchors ("Simpson H-3 anchor") at three locations, a 49'-4" wall and two 20'-0" walls. The plans also specified use of Simpson MGT anchors at a number of locations. The Simpson H-3 anchor was an 18 gauge metal plate, commonly referred to as a "hurricane tiedown." The Simpson H-3 anchor was used to connect a wooden truss to a wooden sill plate or to the top part of a wall. The manufacturer identified the lateral load design capacity of each Simpson H-3 anchor as 125 pounds-per-linear- foot. The Simpson MGT anchor was a "medium girder tiedown" anchor. The Simpson MGT anchor consisted of a heavy-gauge metal plate and metal straps used to connect a masonry wall to a girder. At the hearing, the Petitioner presented the testimony of Joseph Berryman, P.E. Mr. Berryman testified that according to the project plans, 54 H-3 anchors were specified for the 49'-4" wall. Mr. Berryman testified that dividing the load calculation identified in the Respondent's plans by the specified number of anchors resulted in a load of approximately 245 pounds-per-linear-foot. Mr. Berryman testified that application of the same calculation to the load identified in the project plans for the two 20'-0" walls resulted in a load of approximately 380 pounds-per-connector. Mr. Berryman further testified, after additional review of the Respondent's documentation, that his original identification of the load to be accommodated at the two 20"-0" walls was incorrect and that the actual load per connector was in excess of his initial calculation. The Respondent provided testimony and evidence indicating that Mr. Berryman's analysis was overly conservative and failed to consider the load-carrying capacities of other structural elements. Such elements included the Simpson MGT anchors and portions of the building, such as walls and floors, that reduce the load being transferred to the Simpson H-3 anchors. The Respondent testified that the Simpson MGT anchor was capable of resisting a lateral load of 2,462 pounds. The Respondent offered the testimony of Wilbur Yaxley, P.E., who stated that the Simpson MGT anchor was capable of resisting a lateral load of 4,541 pounds. The manufacturer of the Simpson MGT anchor has not rated the device for lateral load resistance. There was no credible evidence that the Respondent accurately calculated the lateral load being applied to the H-3 anchors at the time of design. There was no credible evidence that any lateral load resistance calculation or testing was performed on the Simpson MGT anchor prior to construction of the structure at issue in this case. The Respondent further asserted that substantial load resistance was achieved through the "continuity" of the structure, but acknowledged that no calculations related to continuity were performed prior to construction of the project. Absent any credible evidence of reliable pre- construction calculation of the relevant load-bearing capacities of the Simpson MGT anchor or of the structural continuity of the design, Mr. Berryman's testimony regarding the plans submitted and the loads identified is accepted. Based on the plans submitted by the Respondent to the Petitioner, the evidence establishes that the actual design loads for the Simpson H-3 anchors at the 49'-4" wall and the two 20'-0" walls exceeded the allowable design loads of the anchors. The Petitioner further alleges that the Simpson MGT anchors were not "listed" at the time of permitting and construction and, therefore, could not have been installed in accordance with such listing. There is no credible evidence that any witness actually reviewed a "list" to determine whether or not the Simpson MGT anchors were listed. Notwithstanding building code references to "listed" materials, the evidence fails to establish the existence of such a list.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order finding Robert L. Plowfield, P.E., guilty of violating Section 471.033(1)(g), Florida Statutes (2004), and imposing a penalty of reprimand, $5,000 fine, two-year suspension, and a six-year probation. DONE AND ENTERED this 8th day of August, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of August, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 David P. Rankin, Esquire Law Office of David P. Rankin, P.A. 18540 North Dale Mabry Highway Lutz, Florida 33548 Paul J. Martin, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact The following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent's statements regarding enforcement of the Florida Elevator Safety Code, as set forth in the Amended Petition Challenging Agency Statement Defined as a Rule filed November 21, 2008, constitute agency statements defined as rules that must be promulgated pursuant to Section 120.54(1), Florida Statutes (2008).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the stipulated facts contained in the Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency "empowered to carry out all of the provisions of this chapter relating to the inspection and regulation of elevators and to enforce the provisions of the Florida Building Code." § 399.02(6), Fla. Stat. The Department is given rulemaking authority to carry out the provisions of Chapter 399, Florida Statutes. § 399.10, Fla. Stat. The City is an incorporated municipality of the State of Florida. As a property owner, it is subject to the provisions of Chapter 399, Florida Statutes, and to the rules adopted by the Department to carry out its responsibilities under Chapter 399, Florida Statutes. Pursuant to Section 399.061, Florida Statutes, "[a]ll elevators . . . subject to this chapter must be annually inspected," and the Department has the authority to require correction of any violations of Chapter 399, Florida Statutes, or of the Florida Building Code discovered in those inspections. § 399.061(1)(a) and (4), Fla. Stat. The Department also has the authority to protect the public safety by ordering that the use of any elevator found to be in an unsafe condition be discontinued until the elevator has been repaired and may be operated safely. § 399.061(3). Section 399.02(5)(b), Florida Statutes, places on the elevator owner the responsibility "for the safe operation, proper maintenance, and inspection and correction of code deficiencies of the elevator after a certificate of operation has been issued by the department." The Department has adopted standards for the installation and maintenance of elevators in Florida Administrative Code Rule 61C-5.001, which provides in pertinent part: Adopted Standards. The installation and maintenance of elevators, dumbwaiters, escalators, moving walks, inclined and vertical wheelchair lifts, and inclined stairway chairlifts shall be governed by the following standards, which are hereby adopted and incorporated by reference. Chapter 30, Elevators and Conveying Systems, of the 2004 Florida Building Code, including the 2006 supplements; American National Standard Guide for Inspection of Elevators, Escalators, and Moving Walks, ASME A17.2-2004; and The Uniform Fire Safety Standards for Elevators, Chapter 69A-47, F.A.C., established by the Department of Financial Services. Chapter 30 of the Florida Building Code provides in pertinent part: 3001.1 Scope This chapter governs the design, construction, installation, alteration and repair of elevators and conveying systems and their components. Note: Other administrative and programmatic provisions may apply. See the Department of Business and Professional Regulation [DBPR] Chapter 399, Florida Statutes, and 61C-5, Florida Administrative Code. The regulation and enforcement of the following sections of the adopted codes, and their addenda, are preempted to the Bureau of Elevator Safety of the Department of Business and Professional Regulation: ASME A17.1, Part 8, ASME A17.3, Sections 1.2, 1.5, ASME A18.1, Part 10. 3001.2 Referenced standards Except as otherwise provided for in this code, the design, construction, installation, alteration, repair and maintenance of elevators and conveying systems and their components shall conform to ASME A17.1, ASME A17.1S, ASME A90, ASME B20.1, ALI ALCTV, ASME A17.3 and ASME A18.1. The Division of Hotels and Restaurants may grant exceptions, variances and waivers to the Elevator Safety Code as authorized by the Elevator Safety Code. (ASME A17.1, Section 1.2) and Florida Statutes (Chapter 120).[6] The Department did not separately incorporate by reference ASME A17.1, Part 8 (2004), or ASME A17.3 (1996) in Florida Administrative Code Rule 61C-5.001. ASME A17.2-2004, which is specifically incorporated by reference in Florida Administrative Code Rule 61C-5.001(1)(b), is entitled "Guide for Inspection of Elevators, Escalators, and Moving Walks" and provides in the Preface in pertinent part as follows Requirements for Existing Elevators Elevators and escalators in jurisdictions that have adopted the Safety Code for Existing Elevators and Escalators, ASME A17.3, . . . must, at a minimum, conform to the requirements identified in the Guide as "A17.3." If an existing installation does not meet the requirements of the A17.3 Code, it must be upgraded. If an existing installation was required to meet more stringent requirements, it must continue to meet those requirements.[7] The Preface to ASME A17.3 (1996), the edition of the standard used by the Department, includes a statement of the general purpose of the standard and provides in pertinent: This Code is intended to serve as the basis for state and local jurisdictional authorities in adopting retroactive requirements for existing elevators and escalators to enhance the safety of the general public. It is also intended . . . as a standard of safety practices for building owners and managers of structures where existing elevator equipment covered in the scope of the Code is used. The purpose of this Code is to establish minimum requirements that will provide a reasonable degree of safety for the general public. [8] Section 1.2 of ASME A17.3 (1996) provides in pertinent part as follows: "Existing installations, as a minimum, shall meet the requirements of this Code. If an existing installation does not meet the requirements of this Code, it shall be upgraded. If an existing installation was required to meet more stringent requirements, it shall continue to meet those requirements."9 Section 1.5 of ASME A17.3 (1996) provides that existing installations must conform to Part X of ASME A17.1, Routine, Periodic, and Acceptance Inspections and Tests, and to Part XII, Alterations, Repairs, Replacements, and Maintenance.10 Part 8 of ASME A17.1 (2004), the edition of the standard used by the Department, "contains general requirements for new and used existing equipment."11 A note appended to the statement of the scope of Part 8 states that "[r]equirements 8.1, 8.6, 8.9, 8.10, and 8.11 apply to both new and existing installations."12 Requirement 8.1 deals with security for new and existing elevators; Requirement 8.9 requires placement of a Code data plate on all new and existing elevators; Requirement 8.10 applies to new installations and alterations to existing installations. Pertinent to this proceeding, Requirement 8.6 "applies to maintenance, repairs, and replacements" and Requirement 8.6.1.2 provides as follows: Maintenance, repairs, and replacement shall conform to 8.6 and the Code at the time of the installation Code requirements at the time of any alteration ASME A17.3 if adopted by the authority having jurisdiction[.][13] Requirement 8.11 applies to "periodic inspections and tests of existing installations", and Requirement 8.11.1.2 provides as follows: Inspections and tests required by 8.11.2 through 8.11.5 are to determine that the existing equipment conforms with the following Code requirements: the Code at the time of installation the Code effective as applicable to and for each alteration the ASME A17.3 Code, if adopted by the authority having jurisdiction[.][14] Section 399.03, Florida Statutes, governs the design, installation, and alteration of conveyances, and provides in pertinent part: "(7) Each elevator shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of receipt of application for the construction permit for the elevator."15 The Department publishes Industry Bulletins and Technical Advisories regarding the implementation of Chapter 399, Florida Statutes, and it also publishes statements of "Current Practices" on its website. At issue herein are statements made in Industry Bulletin for Florida's Elevator Industry Number 2006-01, dated April 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2006-04, dated August 1, 2006; Industry Bulletin for Florida's Elevator Industry Number 2008-03, dated July 18, 2008, and revised July 21, 2008; Technical Advisory Issue 2008-01, dated August 18, 2008; and contained in a posting on the Department's website entitled "Elevators Current Practices." In each of these documents, the Department indicated that, to ensure the safety of the public, it would enforce the provisions of the then currently-adopted edition of the Florida Building Code to the extent that the Florida Building Code required retrofitting or modification of existing elevators. In Industry Bulletin Number 2006-01, dated April 1, 2006, the Department stated that, notwithstanding the provision in Section 399.03(7), Florida Statutes, "that elevators 'shall comply with the edition of the Florida Building Code or Elevator Safety Code that was in effect at the time of the receipt for [sic] application for the construction permit for the elevator,'" it would not exempt existing elevators from the provisions of the "new" edition of the Florida Building Code that "require[] retrofitting older elevators because aging equipment may pose a threat to public safety." The Department stated that "Florida Statutes [specifically section 399.001 and 399.061(3)] are in agreement with ASME A17.1 (2000) and A17.3 (1996) regarding life safety issues" and that the Department would require "that, in the interest of public safety, the older and potentially hazardous elevator be brought into compliance with the newer code."16 In Industry Bulletin Number 2006-04, dated August 1, 2006, the Department reiterated its intent to enforce the "new" edition of the Florida Building Code regarding the modification of existing elevators to protect public safety because public safety was its paramount regulatory responsibility. It also reiterated that it could not "provide an elevator owner with an exemption from a new code provision essential to the safe operation of the elevator." The Department advised that it would specifically "require the single wall hydraulic cylinder safety provision of the ASME A17.1 2000 code [Section 8.6.5.8] [to] be enforced as part of the annual elevator inspection." The Department observed that "[t]he ASME Standards Committee considered these sections [Section 8.6.5.8 and sections reference therein] so important to life safety that corrective action is required for all existing single wall hydraulic cylinder elevators." The Department also advised elevator owners that, because compliance with certain code requirements might be "costly and/or complex," they "may submit to the bureau [of Elevator Safety] a letter of intent to comply within 30 days of the date of issuance of an Order to Correct and a plan of corrective action (PCA) within 60 days of the date of issuance of an Order to Correct."17 In Industry Bulletin Number 2008-03 dated July 18, 2008, and revised July 21, 2008, the Department stated in pertinent part: The Elevator Safety Code, Chapter 399, F.S.; Chapter 61C-5, Florida Administrative Code; Chapter 30 of the Florida Building Code; and the American Society of Mechanical Engineers (ASME) national standards ASME A17.1-2004 with A17.1a-2005 addenda, A17.2-2004, A17.3- 1996, and ASME A18.1-2003 provide a minimum standard for public safety. These are the codes currently in effect and they will be enforced. In fact, the more stringent of the codes in effect apply, unless specifically stated or otherwise adopted by the Bureau of Elevator Safety, which is the Authority Having Jurisdiction (AHJ). There are no exceptions. The elevator safety code is not subject to individual interpretation. The codes collectively apply to all elevators and provide for the health, safety, and welfare of the riding public.[18] In Technical Advisory Number 2008-01 dated August 18, 2008, headed "Temporary Variance for ASME A17.3 Violations," the Department stated that "elevator owners of older elevators have stated they cannot meet the 30-day requirement to correct costly and complex violations [of A17.3(1996)]." The Department advised that the Bureau of Elevator Safety "was moving forward to extend the current temporary compliance alternative (variance) to include additional A17.3(1996) violations beyond the initial cylinder replacement issue [see Industry Bulletin Number 2006-04]." The Department described the purpose and effect of the temporary variances, set out requirements that must be met in order for the temporary variance to remain in effect, and outlined requirements for elevator owners to request a temporary variance. In addition to information regarding temporary variances, the Department reiterated that "ASME A17.3 (1996) code applies to all existing elevators according to the 2002 revision of the Florida Building Code." In an undated document entitled "Current Practices" related to elevators, found on the Department's official website, the Department made the following statement: In recent months there has been some confusion regarding which version of the safety code the division uses to conduct safety inspections. The division relies upon Chapter 399, Florida Statutes; 61C- 5(1)(a), Florida Administrative Code; and Chapter 30 of the Florida Building Code. The division follows Chapter 30 of the Florida Building Code which in turn adopts ASME A17.1 and ASME A17.3 as governing the maintenance of elevators. Consequently, when inspecting elevators, pursuant to 399.061, Florida Statutes, the division uses ASME A17.1 and A17.3 codes. Nothing has changed the division's reliance on any of these documents. The division has not ceased enforcing A17.3.
The Issue Whether Respondent Best Western Plus, Oakland Park Inn (Respondent or Hotel) discriminated against Petitioner Sharon L. Garratt (Petitioner or Ms. Garratt) in a place or places of public accommodation because of her disability.
Findings Of Fact Petitioner has been wheelchair bound for over 30 years because of multiple sclerosis. On February 2, 2013, Petitioner’s husband, Mr. Mel Garratt, booked two hotel rooms at the Hotel for the night of November 16, 2013. Respondent owns and operates the Hotel. The rooms were booked through the online “Booking.com” website. The website is not affiliated with Best Western hotels. Rather, the Booking.com website is an independent booking agent for various hotel operators and hotel chains. Mr. Garratt requested that one of the rooms be wheelchair accessible. While the booking confirmation shows that one wheelchair-accessible room was requested, only standard rooms were booked by Mr. Garratt, not wheelchair-accessible rooms. Wheelchair-accessible rooms were not available at the time of the booking because Respondent had closed all five of its “handicap” rooms for renovation. At the time, the Hotel had taken initial steps to upgrade the rooms to meet applicable standards for handicap accessibility. Petitioner called the Hotel at the time of the booking and was advised by the Hotel clerk that there were no wheelchair-accessible rooms available because of renovations. According to Ms. Garratt, the clerk agreed that since the Garratt’s reservations were over nine months away, the renovations for wheelchair accessibility would probably be complete by the time of the Garratt’s anticipated November 16, 2013, arrival. There was no evidence presented, however, that Petitioner was ever guaranteed or promised that a wheelchair- accessible room would be available at the Hotel on the date of their reservations. In addition, although Petitioner alleged that Respondent advertised handicap-accessible rooms at the time the rooms were booked, Petitioner did not retain copies of those alleged ads and the evidence was otherwise insufficient to show that such advertisements were made by the Hotel. Neither Petitioner nor her husband made any attempt to contact the Hotel again regarding the availability of wheelchair-accessible rooms until their arrival on November 13, 2013. Upon their arrival, the Garratts were informed that a wheelchair-accessible room was not available. Personnel at the Hotel offered to cancel Petitioner’s reservation and made calls to surrounding hotels in an attempt to locate a wheelchair- accessible room. When no such room could be found, Petitioner decided to stay the night of November 13, 2013, in the previously reserved, standard room. That night, Petitioner fell in the standard room. By affidavit, Petitioner described her resulting injuries as “pain and bruising to [her] backside,” but offered no further evidence of complications or related medical expenses. The Hotel was built in the 1950s, prior to the enactment of the American with Disabilities Act (ADA). Evidence demonstrated that Respondent closed its rooms that had previously been designated as “handicap”-accessible rooms prior to Petitioner’s booking because they were not compliant with applicable ADA standards. In October 2011, the Hotel hired architect Troy Ammons to perform an ADA survey, who noted ADA deficiencies. Thereafter, on February 24, 2012, Mr. Ammons entered into a contract with the Hotel to prepare plans for renovating the Hotel’s five designated handicap-accessible rooms. Later, plans for renovating a sixth room were added. On January 28, 2013, the plans were submitted to the City of Fort Lauderdale, Building Department. Plan review comments were finalized by the City of Fort Lauderdale Building and Plumbing Departments on April 9, 2013, and building permits were issued for the work on April 26, 2013. On November 4, 2013, the Hotel entered into an ADA Consent Decree in the case of Access for the Disabled, Inc. and Denise Payne v. Oakland Park Inn, Case No. 13-60543 (U.S. Dist. Ct., S.D. Fla.). The Consent Decree approved by the United States District Court on November 6, 2013, obligated Respondent to make certain ADA improvements to the Hotel on or before August 1, 2014. Respondent elected to make more extensive ADA renovations to the hotel than required by the Consent Decree. The ADA renovations were delayed because the Hotel changed contractors and rebid the job. As a result of the delay, the building permits for the renovations expired prior to construction. On July 14, 2014, Respondent signed a new contract with Pemberton Building, Inc., a licensed general contractor, to complete the ADA work. The Hotel obtained extensions for completing the work, and the building permits were revived. Although Petitioner suggested that changes to accommodate her disability would be easy, the renovations required to make the Hotel rooms ADA compliant were extensive. They were not a matter of just putting in a handrail or widening a door opening. The six rooms at the Hotel undergoing renovations for ADA compliance were completely gutted. At the time of the hearing, the plumbing for the six rooms had been completed and the remaining work was proceeding. In sum, the evidence presented by Petitioner in this case was insufficient to show that Respondent discriminated against Petitioner based upon Petitioner’s handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief, and denying Respondent’s request of an award of costs and attorney fees. DONE AND ENTERED this 6th day of January, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2015.
