The Issue The issue in this case is whether Petitioner is entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access to Justice Act.
Findings Of Fact On or about July 12, 1984, a probable cause panel of the Construction Industry Licensing Board met to receive and review an investigative report resulting from complaints received from Carl Mayer Forrest Morgan, and Walter Booth concerning certain activities of Ronald D. Nutt, Petitioner. The panel found probable cause that Petitioner's activities had violated applicable statutory and rule provisions, and subsequently, on or about July 19, 1984, a five-count Administrative Complaint was issued against Petitioner charging him with disregarding an applicable building code, abandoning a construction project, making misleading and false representations, and engaging in fraud and misrepresentation in the practice of contracting. Petitioner disputed the allegations contained in the Administrative Complaint and requested a hearing. The case was sent to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based thereon. The matter was given Division of Administrative Hearing's Case Number 84-2920, and a hearing was held on March 27, 1985 before R. T. Carpenter, Hearing Officer. At the hearings one count arising from the Booth complaint was voluntarily dismissed. On June 13, 1985, a Recommended Order was issued in Case Number 84-2920 which recommended that the Construction Industry Licensing Board issue a Final Order dismissing the Administrative Complaint filed against Ronald D. Nutt. On or about July 11, 1985, the Board considered the Recommended Order, and after a review of the complete record adopted the findings of facts, conclusions of law and recommendation contained in the Recommended Order. The Board issued its Final Order dismissing the Administrative Complaint in Case Number 84-2920 on August 7, 1985. In pertinent part, the following facts were found in Case Number 84-2920 by both the Hearing Officer and the Construction Industry Licensing Board: The principal disagreement (between Nutt, who was the Respondent in this prior case, and Mayer, the complaining witness) concerned the roof design, which Respondent contends was improper. Mayer initially refused to agree to modifications suggested by Respondent and would not retain an architect to clarify his intended design. Other disagreements led to Mayer's withholding of scheduled draw payments. Mayer refused to pay the first draw on completion of the foundation, even though it had been approved by the Melbourne Building Department. By August, 1983, Respondent's firm had completed work to the approximate point of the third draw, but had still received no draw payments. By this time Mayer had retained an attorney, and several unproductive meetings had been held regarding difficulties in completing the project. Mayer subsequently contacted the Melbourne Building Department to complain that the roof was being constructed according to plans not filed with the Building Department. This complaint was verified and a stop work order was placed on the project on August 10, 1983. The evidence adduced at the hearing established that Respondent had changed Mayer's roof design to one he believed was correct, but had failed to obtain Mayer's approval or file the change with the Building Department. The change made by Respondent was, according to his testimony, necessary to correct Mayer's design deficiency. Mayer's testimony to the contrary is rejected. Mayer refused to retain an architect as suggested by Respondent, and demonstrated no expertise in building design. Respondent's testimony on this point is, therefore, accepted. Further efforts to resolve disputes were unsuccessful. On February 1, 1984, Hallmark Builders, Inc. filed a claim of lien on the Mayer property for $28,559. Mayer counter-claimed, and the suits were ultimately settled through payment of $21,000 by Mayer to Hallmark Builders, Inc. Based upon these findings of fact, the following conclusion of law was reached by the Hearing Officer and Board in Case Number 84-2920: Respondent is guilty of violating a local building code by failing to file his change in plans prior to commencing construction under the change. He acknowledged this, but believed it was sufficient com- pliance to file such plans before the next inspection. This violation is not a serious one, and no disciplinary action was taken by local authorities other than the stop work order. Therefore, the charge under Subsection 489.129(1)(d), F.S., should be dismissed. The parties stipulated that at the conclusion of the Department of Professional Regulations Construction Industry Licensing Board's case-in-chief in Case Number 84-2920, Nutt moved for a directed verdict on the four counts remaining in the Administrative Complaint on which evidence was presented and this motion was denied by the Hearing Officer. Petitioner herein has established that his reasonable and necessary attorney fees and costs associated with Case Number 84- 2920 were $13,153.28. Petitioner has established that he is a "small business party" as defined in Section 57.111(3)(d), Florida Statutes, since he operated as a professional practice and also a corporation with his principal office in Florida, and did not have more than 25 full-time employees or a net worth of more than two million dollars when the action in Case Number 84-2920 was initiated by the Department of Professional Regulation, Construction Industry Licensing Board on or about July 12, 1984 with the finding of the probable cause panel. Petitioner has established that he was a prevailing small business party in Case Number 84-2920 since the Board's Final Order dismissing the charges in the Administrative Complaint was clearly in his favor and was not appealed. Petitioner has not established that the actions in Case Number 84-2920 of Respondent herein constituted unreasonable governmental action. This prior proceeding was therefore substantially justified at the time it was initiated on July 12, 1984 with the finding of the probable cause panel.
The Issue Whether Respondent committed the offenses as set forth in the Administrative Complaint dated June 13, 2000, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent is a licensed Certified General Contractor in the State of Florida. At all times material to this case, Respondent was the qualifying agent for Rivero Construction, Inc. On or about June 20, 1996, Respondent contracted with Manuel Chamizo (Chamizo) to construct a parking lot with drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the total price of $7,090.00. Chamizo paid Rivero Construction, Inc., the full contract price. Respondent constructed the parking lot at 4735 Palm Avenue, but did so in a substandard manner. Specifically, the parking lot flooded and was rendered unusable because Respondent had broken a sewer pipe during construction. After being notified of the problem, Respondent failed to correct it. Respondent failed to perform any of the contracted work at 4719 Palm Avenue. Dissatisfied with Respondent's performance, Chamizo sued Rivero Construction, Inc., for damages in the County Court in and for Miami-Dade County, Florida. On or about August 24, 1998, the lawsuit was concluded in Chamizo's favor with the entry of a final judgment against Rivero Construction, Inc. Respondent has failed to satisfy the final judgment. Respondent has failed to obtain a qualified business certificate of authority. Petitioner has incurred costs of $1,669.09 in the investigation and prosecution of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent committed the offenses set forth in the Administrative Complaint dated June 13, 2000; ordering that Respondent pay an administrative fine in the amount of $1,250; pay restitution to Manuel Chamizo in the amount of the Final Judgement obtained by Manuel Chamizo; and pay costs incurred in the investigation and prosecution of this proceeding in the initial amount of $1,669.09, plus costs incurred through the date of final action, which revised affidavit of costs will be submitted to the Board at final action. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 12th day of December, 2001. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Manuel Rivero 61 East 16th Street Hialeah, Florida 33010 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent whose Social Security Number is 356-48-9981 was certified as a law enforcement office by the Criminal Justice Standards and Training Commission on December 18, 1985 and was issued certificate number 12- 85-222-02. At all times material to this proceeding, Respondent was a certified law enforcement officer. On or about April 23, 1987 Respondent entered a plea of nolo contendere to the charges of grand theft in the second degree, a violation Section 812.014, Florida Statutes and dealing in stolen property, a violation of Section 812.019, Florida Statutes. The Respondent was adjudged guilty of these offenses by the Circuit Court of Saint Lucie County, Florida on April 23, 1987.
Recommendation Having considered the evidence of record and the candor and demeanor of the witness, it is, therefore RECOMMENDED that the Commission enter a Final Order revoking the law enforcement officer certification (No. 12-85-222-02) of Respondent, Carey A. Reddick. Respectfully submitted and entered this 15th day of February, 1988, in Tallahassee, Florida. WILLIAM R. CAVE, 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 15th day of February, 1988. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Carey A. Reddick 15424 Loomis Harvey, IL 60426 Robert R. Dempsey Executive Director Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner correctly calculated the penalty to be imposed on Respondent for failing to have a sufficient amount of workers’ compensation coverage during the time period in question.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Scott Shirey owns Cobalt, and his brother Mark Shirey works for him. Cobalt is in the business of “house flipping.” In order to flip a house, Cobalt utilizes a consistent process over the course of several weeks.2/ The process requires Mark Shirey to evaluate the sales prices of other houses in close proximity to a Cobalt-owned house. Mark Shirey then formulates an estimate of how much Cobalt could expect to receive in a sale. In order to achieve a particular return on Cobalt’s investment, Mark Shirey’s sales forecast governs how much Cobalt elects to invest in renovating a particular house and preparing it for sale. Mark Shirey then decides exactly how to renovate a particular house and hires contractors to do certain jobs. Prior to any actual work being done on a house, Mark Shirey conducts a “trash roll-off” by removing furniture, curtains, food, and other items from the house. At that point, the contractors hired by Cobalt start renovating the house. Mark Shirey monitors their work, ensures they are performing the work correctly, directs their work, and acquires whatever materials they need. In order to control costs and ensure that a particular house will be profitable when it is flipped, Mark Shirey also confers with the contractors as to how particular repairs are to be accomplished. In addition to supervising all manner of contractors such as painters, sheet rockers, tilers, carpenters, landscapers, plumbers, and electricians, Mark Shirey is also responsible for paying them. During the course of each renovation, Mark Shirey periodically confers with his brother over the telephone and updates him on the progress of particular projects. At any one time, Mark Shirey can be in charge of renovating multiple houses. Scott Shirey uses the terms, “foreman,” and “supervisor” to describe his brother’s work. Chris Byrnes is a compliance investigator for the Division, and he ascertains whether employers have workers’ compensation coverage as required by Florida law. On December 10, 2015, Mr. Byrnes was conducting random compliance checks when he drove past 14 Cousineau Road in Pensacola, Florida. He observed that the house at 14 Cousineau Road was being renovated. Mr. Byrnes stopped and spoke to Michael Phare, Jr. The latter had been measuring and cutting a piece of sheetrock in front of the house. Michael Phare, Jr. told Mr. Byrnes that he was assisting his father that week. Mr. Byrnes then went into the house and observed Michael Phare, Sr. performing trim carpentry work on the baseboards in a bathroom. Michael Phare, Sr. stated to Mr. Byrnes that he was working for the house’s owner and had been doing so at other locations since July of 2015. Mr. Byrnes then met Mark Shirey. The latter stated that Michael Phare, Sr., Michael Phare, Jr., and another person at the job site (identified only as “Mr. Tolle”) worked for Scott Shirey and that the house was owned by Cobalt. Mr. Byrnes had not observed Mark Shirey performing any work on the home, but Mark Shirey described himself as the foreman and stated that he was directing work at the 14 Cousineau Road address for his brother. Mark Shirey told Mr. Byrnes that Michael Phare, Sr., Michael Phare Jr., and Mr. Tolle were independent contractors who would be receiving 1099 tax forms from Cobalt. Mr. Byrnes later spoke to Scott Shirey over the telephone on December 10, 2015, and the latter stated that the four individuals Mr. Byrnes encountered at the 14 Cousineau Road address were working for him. Scott Shirey described his brother as being a supervisor. The Division served Cobalt with a Stop-Work Order and Order of Penalty Assessment on December 10, 2015, and the Division ultimately determined that Cobalt had failed to obtain sufficient workers’ compensation coverage between January 1, 2015, and December 10, 2015 (“the noncompliance period”). See § 440.107(7)(d)1., Fla. Stat. (providing that the Division is required to assess against any employer that has failed to secure the payment of workers’ compensation “a penalty equal to” the greater of $1,000 or “2 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it failed to secure the payment of workers’ compensation . . . within the preceding 2-year period.”)(emphasis added). Phil Sley, a penalty auditor employed by the Division, calculated the aforementioned penalty based on business records provided by Cobalt. Those business records included bank statements, check images, and a spreadsheet produced by Cobalt. For each person for whom Cobalt failed to obtain sufficient worker’s compensation coverage during the noncompliance period, Mr. Sley determined how much money Cobalt paid each person during that period. The gross payroll amount for each person is divided by 100 in order to create a percentage, and the percentage associated with each person is then multiplied by an “approved manual rate.” An approved manual rate is associated with a particular class code. A class code describes an employee’s scope of work based on the type of work he or she performs on a daily basis. The National Council on Compensation Insurance publishes the Scopes Manual, and the Scopes Manual sets forth class codes for numerous types of work. Multiplying the gross payroll percentage by an approved manual rate results in a workers’ compensation insurance premium for a particular employee. As required by section 440.107(7)(d)1, each premium amount is multiplied by two in order to calculate a penalty associated with each employee for whom workers’ compensation insurance was not obtained. Mr. Sley then added the individual penalties associated with each Cobalt employee in order to calculate the total penalty. The final penalty calculated by Mr. Sley (and set forth in the 3rd Amended Order of Penalty Assessment) is $13,687.24. During the final hearing, Cobalt’s counsel announced that it did not dispute anything in the 3rd Amended Order of Penalty Assessment other than the class code assigned to $40,000 of salary paid to Mark Shirey during the noncompliance period. In other words, Cobalt agreed that it did not have a sufficient amount of workers’ compensation coverage in place during the audit period. Scott Shirey is of the opinion that Mark Shirey’s scope of work falls under class code 5606. According to Cobalt, the penalty associated with the $40,000 of salary paid to Mark Shirey during the noncompliance period should be $1,850.52. The Scopes Manual describes class code 5606 as follows: This classification is available only to project managers, construction executives, construction managers, or construction superintendents having administrative or managerial responsibility for construction or erection projects. When determining eligibility, it is the job duties, and not the job titles, that are the main consideration. “Project Manager, Construction Executive, Construction Manager, or Construction Superintendent” are defined as those persons exercising operational control indirectly through full-time job supervisors or foremen of the employer. When exercising control through a subcontractor, each subcontractor must have a job supervisor or foreman at the specific job site in order to permit the assignment of this classification. The supervisor or foreman of the subcontractor may manage one site or multiple sites. If any of the subcontractors do not have a job supervisor or foreman at any job site visited by the construction executive, all of the payroll of the construction executive for that policy year is assigned to the highest rated construction class code applicable. A sole proprietor or owner/operator with no employees, working as a subcontractor for the insured, would prevent the assignment of this classification to a construction executive because the subcontractor does not have the required job supervisor or foreman. This code does not apply to any person who is directly in charge of or who is performing any degree of actual construction work. Such person must be assigned to the classification that specifically describes the type of construction or erection operation over which they are exercising direct supervisory control provided separate payroll records are maintained for each operation. Any such operation for which separate payroll records are not maintained must be assigned to the highest rated classification that applies to the job or location where the operation is performed. Code 5606 is not available for division of a single employee’s payroll with any other classification. (emphasis added). The Scopes Manual continues by stating that: Code 5606 is intended to cover the project manager, construction executive, construction manager, or construction superintendent of both specialty and general contracting risks. The project manager, etc., will spend some time in the office and the remainder of time visiting various job sites conferring with the job superintendent or foreperson to keep track of the progress of the work being conducted at each job or project. The qualifications established for the use of Code 5606 are that the project manager, etc., of a construction or erection concern must be exercising supervision through superintendents or forepeople of the employer and cannot have direct charge over the workers at the construction or erection site. The project manager may also exercise supervision through subcontractors, superintendents, or forepeople, but each subcontractor must have an on-site superintendent or foreperson at each and every job site. The important element is determining their job duties and not their title as well as that the supervision must be indirect rather than direct. (emphasis added). With regard to Mark Shirey’s duties, Scott Shirey testified as follows: Q: Okay. So earlier – let me go back. So you said we – there’s a – that you might call Mark Shirey a supervisor; is that right? A: I would call him – I don’t know. I would call him a house flipper. That’s what I’m saying, that’s where it gets strange. I’m not sure what I would call him. Yes, he might supervise people, yes, he might be a foreman, but he is me, we flip houses, that’s what we do. And if there’s a classification code for that, I’d love to have it. Q: You mentioned when Mr. Jessup was questioning you that Mark would keep you up- to-date and keep you apprised of the construction at the different houses; is that right? A: That’s correct. Q: How would Mark know about the progress or lack thereof at each individual house to be able to tell you? A: Well, he would go by and observe it and see what’s happening. Q: What else would he do? A: I mean, that’s – I mean, he would go to Home Depot. If someone needed something, he would go to Home Depot and he would have a discussion with people on the quickest way to do the work. Q: Okay. You said he keeps track of the contractors and also pays them on Friday, right? A: That’s correct. Q: What does “keeping track of the contractors” mean? A: “Keeping track of the contractors” is calling them to say “Where are you, how long will the job take?” A lot of phone calls. That’s pretty much it. Q: Would he also go to the sites and check on the progress also? A: Correct. Q: You said earlier that Mark goes to the sites and makes sure the sites are working correctly. Can you elaborate on that? A: Yeah, I’m looking at specific examples. When someone planted a plant in the wrong place, he would say, “You planted a plant in the wrong place, go dig it up and move it,” or you – “You failed to put down a tarp good enough, so you’re getting paint on the new floor,” or “You have installed a cabinet incorrectly,” you know, just like you’re observing and seeing what people do. The Division argues that class code 5437 should be assigned to the $40,000 of salary paid to Mark Shirey between January 1, 2015, and December 10, 2015. With regard to class code 5437, the Scopes Manual provides that Code 5437 is intended primarily for specialist contractors performing interior carpentry finish or trim such as the installation of paneling, molding, cornices, parquet or finished wooden flooring, mantels, staircases, cabinets, and counters. Carpentry of this kind generally involves skilled workmanship. The installation of interior doors by trim or finish carpenters is also included in Code 5437. These “specialists” will generally be required to perform a great degree of finish work, cut the door to the proper size to fit the existing framework, perhaps do some routing for any interlocking weather stripping or safety strips, and drill holes for the doorknob, hinges and striker plates. Assigning class code 5437 to the $40,000 paid to Mark Shirey results in a penalty of $6,752 being associated with that particular portion of Cobalt’s payroll, and that is the only portion of the 3rd Amended Order of Penalty Assessment in dispute. As explained below, the Division has proven by clear and convincing evidence that class code 5606 is inapplicable to the $40,000 paid to Mark Shirey and that class code 5437 for the work performed by Mr. Phare, Sr. does apply. Furthermore, given that Mark Shirey was exercising direct, on-site supervisory control over work performed at 14 Cousineau Road, it was appropriate that the highest rated classification for the work being performed at the location be assigned to Mr. Shirey.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order imposing a penalty of $13,687.24 on Cobalt Shore Investments, LLC. DONE AND ENTERED this 9th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2016.
The Issue The issue is whether Petitioner's application for licensure should be granted or denied.
Findings Of Fact Petitioner filed applications with the Department of Business and Professional Regulation (DBPR) for a provisional plans examiner license and a standard building plans examiner license.1/ The Board of Building Code Administrators and Inspectors (Board), which is part of DBPR, is the state agency charged with certification of building code administrators, plans examiners, and building code inspectors, pursuant to Chapter 468, Florida Statutes. Accompanying her applications were: a statement of educational history; an affidavit from her then current employer, Robert Olin of the Orange County Building Division; an "Experience History" page; and notarized statements from two construction companies listed on the Experience History page, JE Activities Construction Managers, Inc., and BFC Construction Corp., regarding Petitioner's employment with those companies. DBPR reviewed her applications and sent her two letters dated August 9, 2005, both of which read in pertinent part as follows: If you are using your education as experience, you will need to have an official transcript sent from your institution. Have them send it to attention building codes, CIU. (There's no need to send the one for the psychology coursework, only the engineering.) The paperwork you sent from New York is not sufficient. You will need to use the affidavit form in your packet, such as Mr. Olin used. They need to fill out the form completely (please note it does not have to be notarized.) The affidavits must be filled out by a state licensed architect, engineer, contractor or building official (see application instructions.) They must include their state license number and tell what the license is (i.e. general contractor). If they are one of these professions but are not licensed in New York because it is not necessary in that state, they need to send a separate letter so stating, which is notarized. You need to send a new experience history page which includes your position in Orange County. (emphasis in original) Additionally, the August 9, 2005, letter regarding her application for a provisional license advised Petitioner the following: Please be advised that in order to be eligible for provisional license, you must be hired into the position of a building plans examiner. . . . You will need to send a new affidavit from your CBO stating that you have been hired into the position, and the effective date of such hire. (Please see Rule 61G19-6.012(6) showing you are eligible to perform the duties of a building plans examiner when hired for a period of 90 days from the date of submission of the application for provisional licensure) under direct supervision of a CBO. . . . Petitioner responded to the August 9, 2005, letters by supplying the requested documentation. Specifically, Petitioner provided a revised affidavit from Robert C. Olin, Manager/Building Official with the Orange County Building Division, which stated as follows: Ms. Georges was hired as a Plans Examiner on 6/13/05. She is applying for her Provisional Plans Examiner License and also to take the Building Plans Examiner exam. Presently her responsibility is to complete her training for the position of Plans Examiner, and to obtain a Provisional, and then a Standard Plans Examiner License. Petitioner also provided a revised Experience History page which included her position in Orange County listing the dates of employment as June 13, 2005 to present. Further, Petitioner provided revised statements/affidavits, on the affidavit form specified in the August 9, 2005, letter to Petitioner, regarding her work experience in New York. One of the affidavits was written by Ernest Jochen, vice president of JE Activities, Inc., who listed her dates of employment as February 2003 to June 2005, and her years of supervisory experience as "2 years 3 months." The other affidavit was written by Garfield Stewart, Senior Project Manager, of BFC Construction Corp., who listed her dates of employment as May 2000 to January 2003, and her years of supervisory experience as "2 years 8 months." The substance of the original statements of Mr. Jochen and Mr. Stewart regarding Petitioner's work experience was essentially the same as in the revised affidavits. The revisions were of a technical nature only, i.e., on the correct forms. Petitioner's work experience in these jobs, i.e., managing gut renovations of city-owned multi-family apartment buildings, is in the field of construction. Petitioner also ordered an official transcript from Polytechnic University in Brooklyn, New York, which was received by Respondent on October 5, 2005. The transcript indicates that Petitioner attended Polytechnic University from the fall of 1996 through the fall of 2000, earning 123.50 credits over four years with a major in Civil Engineering. The Board denied Petitioner's applications at a meeting held on December 9, 2005, and issued the Notice of Intent to Deny on January 4, 2006. Subsequent to issuance of the Notice of Intent to Deny,2/ Petitioner provided separate letters from Mr. Stewart and Mr. Jochen which read as follows: A license to complete gut renovations on multi-family structures is not required in the State of New York. The firm is only required to be bonded and insured. Although Petitioner was employed by Orange County at the time she submitted her applications and for several months thereafter, she explained at hearing that she left her employment with Orange County in June 2006, and was employed there for exactly one year. This meant at the time she made application, Petitioner was employed by an agency of government, but not at the time of hearing.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's application for provisional certification as a building plans examiner, and granting Petitioner's application for standard certification as a building plans examiner, thus allowing her to sit for the standard certificate examination. DONE AND ENTERED this 24th day of August, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2006.
The Issue Whether Respondent violated various provisions of Section 489.129(1) by failing to pay for all roofing materials used on the North Orient Road job; by filing a false payment statement and by having his permitting privilege revoked by the City of Tampa Unified Construction Trades Board.
Findings Of Fact The Petitioner is the Department of Professional Regulation charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute administrative complaints pursuant to Chapters 489, 455 and 120, Florida Statutes, and the Rules promulgated pursuant to the statutes. Respondent is and has been at all times material hereto, a certified roofing contractor and a registered roofing contractor in the State of Florida, having been issued license numbers CC CO39803 and RC 049317. At all times material hereto, Respondent was the licensed qualifying agent for Jenkins Economy Roofing, Inc., for which Sharon K. Jenkins was an officer. Ed Nabakowski is, and has been at all times material hereto, the owner of the real property and improvements thereon located at 2501 North Orient Road, Tampa, Hillsborough County, Florida. R. L. Dykes is, and has been at all times material hereto, a certified general contractor duly licensed by the State of Florida. In the months proceeding July 1988, Nabakowski entered into a contract with Dykes wherein Dykes agreed to construct a commercial building upon Nabakowski's property on North Orient Road. Pursuant to that contract, Dykes entered into a subcontract on July 6, 1988, with Respondent Jenkins, doing business as Jenkins Economy Roofing, Inc., wherein Jenkins agreed to construct the roof of the building. Pursuant to the subcontract, Dykes agreed to pay Jenkins the sum of $8,487.00 which payment included costs of all materials, supplies and labor. Pursuant to the subcontract, Jenkins had the sole responsibility for ordering, arranging delivery to the site and paying for such materials and supplies as would be necessary for the construction of the roof. Jenkins construction activities commenced on July 6, 1988 and were concluded within the time contemplated by the subcontract. Greenbriar Building Materials, Inc., was, in July 1988, a supplier of building materials in Tampa, Florida. In connection with his construction of the roof, Jenkins ordered certain materials and supplies from Greenbriar which were delivered to the construction site. The materials and supplies had not been altered in their form or substance in any discernable manner between the Greenbriar warehouse and the construction site. Greenbriar maintained invoice records of the specific materials and supplies delivered to the job site. Greenbriar's records had three invoices for the North Orient Road site. The total sum of the three invoices was in the amount of $5,747.22. The invoiced price of the materials and supplies was usual and reasonable. The materials and supplies listed on the Greenbriar invoices were of such nature and quantity as would normally be used in the construction of the particular roof structure of this project. The materials and supplies listed in the invoices were used for and exhausted in the construction of the roof. By check dated August 8, 1998, Dykes paid Jenkins the sum of $6,790.00 as a draw against the total amount of the subcontract. On August 15, 1988, and as a prerequisite to receiving the draw payment a document titled "Partial Waiver of Lien" was signed by Sharon K. Jenkins as Secretary for Jenkins Economy Roofing, Inc. Under the terms of that document, Respondent warranted that " ... invoices for all materials, supplies and services provided by others ... arising out of work or items furnished to the described property, prior to the date hereto, have been paid." Greenbriar recorded a Claim of Lien in the Official Records of Hillsborough County, Florida, on September 19, 1988, securing the debt for roofing materials delivered to the job site. The lien was in the exact amount of the sum of the three Greenbriar invoices, to wit: $5,747.22. In the text of the Claim of Lien which was executed under oath by Greenbriar, Notice to Owner was certified as having been served on July 26, 1988. There was not and has not been any dispute as to the validity of the lien and all interested parties have acted in accord with the lien's validity. By certified letter dated September 28, 1988, Greenbriar made formal demand of the owner, Nabakowski, for payment of the amount of the Claim of Lien under threat of foreclosure. Nabakowski communicated with Dykes and in accord with professional responsibility, Dykes paid the full amount of the debt due to Greenbriar. Dykes payment to Greenbriar resulted in the satisfaction of the lien against the owners property on December 12, 1988. Dykes was financially harmed by paying the amount necessary to secure the satisfaction of the lien against the owner's property. It caused him to twice pay for the same building materials, since he had already paid Jenkins the amount necessary to pay Greenbriar at the time of his drab on August 8, 1988. Jenkins Economy Roofing had not paid the debt due to Greenbriar for materials supplied to this job at the time of signing the Partial Waiver of Lien. Jenkins Economy Roofing, Inc., did not pay the debt due to Greenbriar for materials supplied to his job site at any time thereafter. Pursuant to a formal complaint filed by Dykes on September 21, 1988, the City of Tampa, Code Compliance Section, conducted an investigation of Jenkins's transactions relative to the construction project on North Orient Road. As a result of the investigation, Jenkins was charged with violations of the City of Tampa Code, Chapter 25, Sections 25-101(6),(7),(19) and (22). A disciplinary action against Respondent was scheduled for hearing before the Unified Construction Trades Board. Respondent was notified of the disciplinary action hearing by certified mail. Respondent failed to respond to or appear at the City of Tampa disciplinary action. Pursuant to evidence produced at the hearing on January 3, 1989, the Unified Construction Trade Board unanimously determined that Respondent was guilty of violating City of Tampa Codes and disciplined Respondent by permanently revoking his permitting privileges. Respondent was notified of this local disciplinary action in writing and was verbally advised of his rights to appeal and the appellate review procedure by Darrow in a subsequent telephone conversation. Respondent did not appeal the local discipline. In Department of Professional Regulation v. Thomas L. Jenkins, DPR Case No. 89-903, which is an unrelated disciplinary action case, the Construction Industry Licensing Board entered a Final Order on November 28, 1990, finding Respondent guilty of violating local building codes, being disciplined by any municipality and misconduct in the practice of contracting, i.e., violations of Section 489.129(1)(d),(e) and (m). The Final Order imposed a fine of $2,500.00 against Respondent and ordered that his license CC CO39803 be suspended until the fine is paid.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violations of Counts I through V of the Amended Administrative Complaint. It is FURTHER RECOMMENDED that the Board REVOKE the Respondent's license as a certified roofing contractor, number CC C039803, and as a registered roofing contractor, number RC 0049317, in accordance with disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 25th day of February, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1-47. Respondent's Proposed Findings of Fact. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Thomas L. Jenkins HC 73, Box 3035 Vanceburg, KY 41179 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact 1, The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1){j), F.S., on August 14, 1997, in Orlando, Florida, for consideration of the Recommended Order {a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case. The Petitioner was represented by Cate O'Dowd. The Respondent was not present, nor was he represented by counsel at the Board meeting. There were no exceptions filed to the Recommended Order. Upon consideration of the Administrative Law Judge’s Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
Findings Of Fact In order for the Petitioner to obtain his license to practice architecture in Florida, he is required to successfully complete a written examination prepared by the National Council of Architectural Registration Boards (NCARB) and administered by the Department of Professional Regulation. The Petitioner has obtained a passing score on eight of the nine divisions of the examination. He received a failing grade on Division C, the building design portion of the Architecture Examination taken in June of 1987. Because of the one failing grade, Petitioner is deemed to have failed the entire examination until all portions are successfully completed. The Petitioner's failing grade on Division C was determined under the following process: Two examiners independently evaluated the Petitioner's solution to the building design problem using the holistic grading method. The Petitioner obtained a score of 2 from one grader and a grade of 2 from the other grader. The exam received a third evaluation in which the Petitioner was given a score of 3. The first two scores were a failing grade. The third score was a passing grade. Under the NCARB evaluation process, the test was then given to a master juror to grade to determine what grade should be given to the examination. A master juror is an examiner with over four years of experience in grading the building design portion of the examination. When a master juror is given an exam to grade, he is aware that he is being called upon to resolve a grade conflict case. In this case, the master juror gave Petitioner's design a holistic score of 2. As a result, the Petitioner failed the exam. The failing score was reported to the Respondent, who adopted the score and notified the Petitioner that he had to retake the examination. The Respondent did not follow prescribed procedures set forth in the Florida Administrative Code as to how a passing grade is defined on Division C of the Architecture Examination of 1987.
