Findings Of Fact By Application executed July 1, 1992, Petitioner requested licensure as a professional engineer by endorsement. The application showed that Petitioner has been licensed or registered as a professional engineer for 25 years, so this is not an issue. The sole issue in the case is whether Petitioner has 30 years' continuous professional experience as a professional engineer. The application shows continues employment from June, 1960, through "present." In fact, the last job listed on the application ended on December 31, 1992. Respondent has already given Petitioner full credit for continuous professional experience from June, 1960, through April, 1962; and January, 1965, through February, 1987. The periods for which Petitioner received 50% credit are April, 1962, through January, 1965; and October, 1988, through December, 1992. For one period, Petitioner received no credit: March, 1987, through October, 1988. The time for which the Board has already given Petitioner credit totals 329 months. Petitioner requires credit for another 31 months in order to qualify for licensure by endorsement as a professional engineer. Petitioner received half credit for his work from May, 1989, through December, 1992, for SuperAmerica. He received half credit because his application disclosed that he merely supervised construction of convenience stores during these 44 months. However, only 40% of Petitioner's time was spent supervising construction. The remaining 60% was spent doing design and design coordination. This latter work is entitled to full credit because it involved relatively complex engineering work in connection with the design and layout of underground fuel storage tanks, monitoring systems, and recovery systems. By dividing Petitioner's work during the above-described 44-month period between the construction-supervision work and the design work, Petitioner worked 17.5 months on construction supervision and 26.5 months on design. Reducing the construction-supervision work by half, Petitioner is entitled to a total of 35.25 months of credit for the SuperAmerica work. Rounded down to 35 months, this gives Petitioner an additional 13 months than what the Board gave him, for a new total of 342 months. The remaining two periods for which Petitioner received only half credit involve 41 months when he taught civil engineering from April, 1962, through January, 1965, and October, 1988, through May, 1989. He received half credit because the nature of the material taught did not warrant full credit. However, during these periods, Petitioner spent about half of his time doing outside consulting work on various engineering jobs. The nature of the work was of a complexity comparable to that typically performed by a professional engineer in the course of his or her employment. The credit should be adjusted for the above-described 41-month period. Half of this time was spent on teaching, for which half credit is appropriate; thus, Petitioner earns 10.25 months for this work. The other half is entitled to full credit, so Petitioner earns 20.5 months for this work. The resulting total of 30.75 months, which is rounded off to 31 months, is 11 months more than the credit given him by the Board. The extra 11 months give Petitioner 353 months. Petitioner did not contend at the hearing that he was entitled to any credit for the period from October, 1988, through May, 1989. During this time, he was employed as a real estate broker and appraiser. Based on the foregoing, Petitioner lacks the requisite 360 months of professional experience. Even if the recommended adjustments had resulted in a recalculation of 360 months, there has been a clear break in professional employment from March, 1987, through October, 1988, during which time Petitioner's employment as a real estate broker and appraiser had nothing to do with professional engineering.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Professional Engineers enter a final order denying Petitioner's application for licensure by endorsement. ENTERED on May 7, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 7, 1993. COPIES FURNISHED: Edwin A. Bayo Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, FL 32399-1050 George G. Briggs 26171 Hickory Blvd. Bonita Springs, FL 33923 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent has been the victim of discrimination because of his race as to payment of salary and salary increase decisions made by the Respondent and, further, whether the Respondent engaged in retaliation against the Petitioner because of his filing of Complaints concerning such alleged discrimination with the Florida Commission on Human Relations (Commission).
Findings Of Fact The Petitioner, at times pertinent hereto, was an employee of the Department of Transportation, the Respondent. He was so employed since July 1986, and since 1990, has been employed in the Preliminary Estimates Office of the Department. Mr. Ivey holds a Bachelors and a Master's degree in Civil Engineering and became a Registered Professional Engineer in Florida in 1990. The Department has eight Preliminary Estimates Engineer positions in its Preliminary Estimates Office and Mr. Ivey holds one of those positions. Preliminary Estimates Engineers perform cost estimates for Department road and bridge construction projects. They prepare official estimates for construction projects and review bids for the projects. The eight Preliminary Estimates Engineers perform essentially the same type of work. There is one lead worker, Mr. Hal Garland, who has the additional responsibility of back- checking work of other estimates engineers and making work assignments within the office. Mr. Ivey has no supervisory responsibilities. Mr. Ivey's immediate supervisor is Mr. Bob Griner. Mr. Griner has supervised Mr. Ivey since he joined the Preliminary Estimates Office in 1990, and Mr. Ivey has never heard him say anything negative about people of Mr. Ivey's race. Mr. Griner's immediate supervisor is Mr. Lex Chance, the State Estimates Engineer. Mr. Chance has been the State Estimates Engineer since 1990, and also manages the Engineering Support Services Section. He previously managed the Final Estimates and Specifications Sections. The Engineering Support Services Section performs computer support work and does not perform the type of work performed by the preliminary estimates Engineers. The Final Estimates Section performs audits after a project is complete to determine proper payment for the project. The Final Estimates Section does not perform the same work as performed by the Preliminary Estimates Section. The Specifications Section does not perform the type work performed by the Preliminary Estimates Section either. The Specifications Section develops the specifications that are incorporated into Department highway construction projects. The Department employs a broad system of job classifications, classifying jobs more by category than with precise specificity. All professional engineers are included in the Engineering, Architecture and Surveying Level IV classifications (EAS-IV). These positions are intended to be positions that perform professional engineering work. Employees in the EAS-IV class may perform various kinds of work. Non- professional engineer related positions that are intended to provide non-professional engineering support services make up the Engineering, Architecture and Surveying Level III class (EAS-III). The Engineering, Architecture and Surveying Level V class (EAS-V) is the supervisory class for engineers. Professional engineering work involves a practical application of scientific principles for engineering purposes. Registration as a professional engineer qualifies an individual to perform engineering design work and, with the Department, to design and build road and bridge projects. Preliminary Estimates Engineers, including the Petitioner, do not perform professional engineering work. Although Preliminary Estimates Engineers read and interpret plans, they do not perform engineering design work. Knowledge required to perform Preliminary Estimates Engineer work can be obtained without a professional engineering registration or even a degree in engineering. The work of a Preliminary Estimates Engineer is not comparable to design work which is performed by professional engineers in other areas or sections of the Department. Both the positions of Mr. Kanu Patel and Mr. Ivey, in the Preliminary Estimates Section do not involve the performance of professional engineering work. The Petitioner and Mr. Patel are the only Preliminary Estimates Engineers who have Master's degrees and are Registered Professional Engineers. The Department has concluded that their positions should properly be classified as EAS-III positions because they do not perform professional engineering work. All other Preliminary Estimates Engineers are classified as EAS-III. The Petitioner is thus over qualified for the position in which he is employed with the Department. The broad band classification system uses broad pay ranges that give management the discretion to pay employees within a wide range, based on a specific job and the skills required to perform the job. The Department does not pay the same amount to all employees within the same class. It attempts to pay the same people doing the same type of job, with the same qualifications, relatively identical salaries. The term "pay inequity" describes a situation where some people, in a particular work group, are not being compensated the same as others in that work group with similar backgrounds, performing the same job. The Department attempts to correct such pay inequities through the methods available to it of increasing pay of individuals. Although the Department has a broad classification and pay system, it is also subject to the Department of Management Services (DMS) pay rules, including Rule 60K-2.006, Florida Administrative Code, which governs increases to employees base rates of pay. The Department has adopted a pay procedure which implements the DMS pay rule, called Procedure 250-040-035; Pay Actions. The Department adheres to the provisions of the DMS rule in its own pay procedure in granting pay raises. Department employees' salaries are general referred to as their "base pay." Increases to an employee's base pay are limited by Rule 60K-2.006, Florida Administrative Code. The rule and Department procedure, allow for several types of increases to base pay, including "Superior Proficiency" increases, "Added Duties" increases, and re-assignment and transfer increases. Rule 60K-2.0061, Florida Administrative Code, and the Department's pay procedure also provide for various types of salary additives; temporary pay increases that can be removed or adjusted upon changed conditions. A "lead- worker" salary additive is available for employees with limited supervisory responsibilities that do not include reviewing employee performance or administrating discipline, but may not be used to create an intermediate level of supervision. Department management supervisors may use any appropriate type of pay increase to address pay inequities. The Department's pay procedure provides the method for obtaining Superior Proficiency increases. Superior Proficiency increases may be granted to employees who have met all key performance responsibilities and received a Special Recognition/Accomplishment form during the period under review. Employees who meet those eligibility criteria are ranked through a computerized formula that considers criteria, including the ranking assigned by the appropriate manager, the length of service with the Department and with the state government, how the particular employee's pay relates to the minimum pay for the employee's job class, and the employee's unrewarded eligibility during the previous year. When the ranking is complete, cost center managers are required to give Superior Proficiency increases in the order of the rankings. Added duties increases may be awarded to employees for additional permanently-assigned job duties. The addition of duties or responsibilities to a position does not automatically entitle an employee to a pay increase. Added duties increases are discretionary with management and must take into consideration not only the effect the additional duties have on the position, but also the pay relationships within the work unit. Budgetary restrictions also limit managers ability to provide pay raises to employees. "Rate" is a salary constraint placed upon the Department by the Legislature and controls the Department's ability to give increases. Rate is allocated within the Department to the various cost centers. Rate limits the ability to grant increases of any type, including superior proficiency and added duties salary increases. Limits on rate prevent the Department from giving pay increases to all employees who are eligible and ranked for Superior Proficiency increases on some occasions. The Petitioner was among the two highest-paid Preliminary Estimates Engineers during 1997. His base rate of pay was $1,658.17 per pay period. Prior to June 24, 1997, the Petitioner was the highest paid estimates engineer. On June 24, 1997, Mr. Willard Herring was given a Superior Proficiency increase that brought his salary to $1,669.00 per pay period. Mr. Herring also received an added duties pay increase on July 24, 1997, that brought his salary to $1,752.45 per pay period. Mr. Griner assigned these additional duties to Mr. Herring and sought the increase for him because he took over preparation of the price trend index from an employee who left the section. During this time Mr. Ivey was the second highest paid Preliminary Estimates Engineer. When Mr. Herring left the section on October 3, 1997, Mr. Ivey was again the highest paid estimates engineer. On November 10, 1997, Mr. Tyrone Ware was re-assigned to the Preliminary Estimates Section with a re-assignment increase that brought his base pay to $1,771.06 per pay period. Mr. Ware is the same race as Mr. Ivey, the Petitioner. Mr. Ivey was again the highest paid Preliminary Estimates Engineer on October 6, 2000. His base rate of pay, at that time, was $1,984.03 per pay period. Mr. Ivey was still the highest paid Preliminary Estimates Engineer at the time of the hearing. During the time that he has worked in the Preliminary Estimates Section, the Petitioner has received two pay increases above the regular Legislative increase received by all employees. In 1992, upon promotion in class to the then Professional Engineer II class, the Petitioner received a 12.63 percent pay increase. After receiving this increase, the Petitioner was the highest paid Preliminary Estimates Engineer. Effective May 13, 1999, he received a 7.5 percent added duties pay increase for the addition of the quality assessment function to his position. After receiving this increase, his base pay was $1,883.02. Mr. Griner gave Mr. Ivey these additional duties and sought the increase for him because he felt that Mr. Ivey was the best man for the job. Although Mr. Griner has consistently given the Petitioner high marks on his annual reviews of performance, the Petitioner has never received a Special Recognition/ Accomplishment form from Mr. Griner, so he has never been eligible to receive a Superior Proficiency increase. Other Preliminary Estimates Engineers have received Superior Proficiency increases after Mr. Griner issued Special Recognition/Accomplishment letters for them. Mr. Willard Herring, Mr. Max H. "Hal" Garland and Mr. Kenneth Richardson each received a Superior Proficiency increase after receiving a special recognition/accomplishment form from Mr. Griner. Mr. Richardson is of the same race as Mr. Ivey, the Petitioner. Mr. Griner has also issued Special Recognition/Accomplishment forms for Ms. Holly Aldridge and Mr. Kanu Patel, although they did not receive Superior Proficiency increases. Although Mr. Griner believes that the Petitioner does a good job, he had not issued Special Recognition/Accomplishment forms for the Petitioner because he has already been at the top of the engineers in salary in his section. Mr. Griner has also used the added duties increase as a tool to equalize pay among the Preliminary Estimates Engineers. Mr. Griner assigned added duties to Mr. Patel for which he received an increase effective May 1999. This increase came at the same time as Mr. Ivey's added duties increase and brought Mr. Patel's pay to within $1.00 per pay period of Mr. Iveys. Effective July 25, 1997, both Mr. Richardson and Mr. Marvin Waters received added duties increases. Mr. Griner gave them those increases after the departure of another employee because they were on the lower end of the pay scale. Despite those increases, both employees remained lower paid than the Petitioner. In 1998, Mr. Griner also gave Mr. Garland an added duties increase to bring his salary closer in line with the other Preliminary Estimates Engineers. This increase brought his pay close to the amount that the Petitioner was earning at that time. Mr. Griner sought this increase because Mr. Garland had assumed the lead worker responsibilities, was back-checking the work of other estimates engineers and had been underpaid for his work. The Petitioner believes that he has done a much better job then the other Preliminary Estimates Engineers. He helps his co-workers perform some tasks and believes that they struggle to do their jobs. He believes that his qualifications and abilities are superior to the lead worker, Mr. Garland, and to his supervisor, Mr. Griner. He believes that the other Preliminary Estimates Engineers lack the knowledge required to do the technical aspects of their jobs. His belief is not shared by his co-workers or supervisors. The Petitioner has complained to Mr. Griner about his salary at least once a month since 1991. He disagrees with the way the Preliminary Estimates Office has been administered by Mr. Griner. In August of 1997, the Petitioner took his complaints to a higher management level. He and Mr. Akbar Ghavamikia, of the Engineering Support Services Section under the supervision of Mr. Chance, met with Mr. Bill Deyo and Mr. Jimmy Larscey concerning their pay. Mr. Larscey was Mr. Chance's superior in the Department. Mr. Chance was present at a meeting with Mr. Larscey. During that meeting, the Petitioner told Mr. Larscey, "Is that all you have got to say? Then this meeting is over." Mr. Chance recalled that the Petitioner then "stormed" out the door and left the meeting. Mr. Chance was asked by Mr. Larscey to request pay increases for the Petitioner, Mr. Ghavamikia and Mr. Patel. Mr. Chance submitted requests for the increases on September 16, 1997, although he did not have sufficient salary rate granted by the Legislature to actually give any of the requested increases. The Petitioner believes that Mr. Griner has retaliated against him for filing his Complaint with the Commission by not giving him Special Recognition/Accomplishment forms. Mr. Griner did not give the Petitioner such a form either before or after he filed his Complaint with the Commission. He did not give the form to Mr. Ivey because he uses the forms and the attendant possibility of receiving a Superior Proficiency increase, as a method of equalizing salaries among the estimates engineers and the Petitioner has always been at or near the top in salary anyway. The Petitioner also complained that Mr. Griner issued a written reprimand to him in connection with a disagreement over Mr. Garland's pay increase. The reprimand was given because the Petitioner confronted Mr. Griner, accused him of racist behavior by giving Mr. Garland a raise, and called Mr. Griner a liar. The Petitioner has been disruptive in staff meetings and refused to sign his annual review for the period ending January 31, 1999, because Mr. Griner stated in that review that the Petitioner "needs to improve his attitude toward the department" and that the Petitioner "is often found talking with other employees and not doing his work." These are not a new type of comment from Mr. Griner concerning the Petitioner's history of annual reviews, however. The Petitioner signed his review for the period ending July 7, 1994 for instance, in which Mr. Griner stated "Allison is encouraged to curb his visitation with other employees and devote more time to estimating and research." The Petitioner also signed his annual reviews for the periods ending January 31, 2000 and January 31, 2001, in which Mr. Griner stated "Allison needs to improve his attitude toward his supervisor and co-workers," "improvements in his judgment is [sic] encourages," "needs to spend less time talking to co-workers," "had improved his attitude towards supervisor and co-workers," and "needs to use better judgment on time spent talking to co-workers." The Petitioner identified a number of other professional engineers working for the Department who were paid more than he. However, none of those individuals worked in the Preliminary Estimates Section and none were supervised by Mr. Griner. The Petitioner did not demonstrate that any of these individuals performed substantially the same work as he performs. The Petitioner believes that he should be earning about $66,820.00 annually for his work as a Preliminary Estimates Engineer. The Petitioner's supervisor, however, after 35 years' service with the Department, was earning less than $2,000.00 more than the Petitioner believes that he himself should be paid. The Department's management is not willing to pay the Petitioner his expected salary for his work as a Preliminary Estimates Engineer. A salary at that level would require him to be doing design work or supervisory or program responsibility duties. Paying the Petitioner such a salary would create an inappropriate pay inequity within the Preliminary Estimates Section.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is
The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner $7,866 in monies expended in violation of the contract and applicable regulations. DONE and ENTERED this 14th day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1982. COPIES FURNISHED: Chad J. Motes, Esquire Suite 131-Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Louise S. Aligood P. O. Box 536 Monticello, Florida 32344
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact Petitioner is a corporation formed in 1972, whose majority stockholder and president is Ima Jean Strickland, a minority person. The parties have stipulated that Petitioner corporation has in the past and continues to meet all eligibility criteria for MBE certification except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility for recertification in this regard depends on whether or not Petitioner continues to employ "25 or fewer permanent full-time employees." Petitioner engages in the provision of electrical work for commercial and residential construction and in electrical services for business and residential customers. Approximately ten percent of its business is the service work for residential and business customers and residential construction. The remainder of its business consists of new construction. On its recertification application, Petitioner claimed to have only eight permanent full-time employees and at the time of formal hearing, testimony of its witnesses acknowledged only 9-10 permanent full-time employees. Petitioner considers an employee to be "permanent full-time" only when that employee has been with the company for at least five years. Only after an employee has been with Petitioner for five years does Petitioner pay the premiums on that employee's health insurance and give that employee a paid annual one week's vacation. (See Finding of Fact No. 8, infra.) By Petitioner's interpretation, a "permanent employee" is a different category-than a "full-time employee." In Petitioner's parlance, "full-time" refers to how many hours the specific employee works per week; whereas, "permanent" refers to an employee with a long-standing relationship with the Petitioner and who has attained full benefits. As of the date of formal hearing, only ten of Petitioner's employees were vested its profit and pension plan. (See Findings of Fact Nos. 46-47, infra.) Petitioner's hiring goals and employment practices emphasize long-term employment. Such policies benefit Petitioner by the retention of accessible, qualified labor in an industry with consistently high employee turnover. Petitioner's employees normally work 7:30 a.m. to 4:00 p.m. When possible, such employees are allowed to make up the hours when they have been absent without pay and where a job/project has been closed for a hcffliday All of Petitioner's employees are subject to a 90- day probationary period during which they are observed for performance and attendance. Petitioner encourages new employees to attend its apprenticeship program at Lively Vo-Tech. If the employee gets past the 90-day probationary period, his employment continues until he voluntarily terminates the employment relationship or until Petitioner terminates his employment due to his failure to perform adequately. If residential jobs/ construction projects are not awarded to Petitioner, the employee may not be able to work but would be encouraged to return to Petitioner when work again becomes available. All Petitioner's employees are eligible to participate at their own expense in the company-sponsored group health plan after 90 days of employment. When an employee can become eligible to join the group medical insurance plan at his own expense is tied to the probationary period. When the company pays an employee's group health plan premiums is tied to his attaining "permanent" status at the five years' employment stage. DGS duly promulgated Rule 13-8.005(4) (c) F.A.C. in November 1988 in order to establish uniform review of MBE applicants on the "25 or fewer permanent full-time employees" statutory criterion contained in Section 288.703(1) F.S. In applying Rule 13-8.005(4)(c), DGS considers the number of permanent full-time employees that the applicant acknowledges to be permanent and full-time and the number of positions the applicant needs to actually carry out its work. However, DGS does not add these two figures because it wishes to avoid "doublecounting" positions. This agency policy/procedure/ interpretation of the rule has been consistently applied to all MBE applicants since the rule has been in effect and was applied to this Petitioner. In determining the number of employees Petitioner actually needs to carry out its business, DGS considered its annual gross receipts, the number of supervisory positions that are used, and the quantity of work it performs. The rule permits this latitude. In determining the number of permanent full-time employees who are employed by the Petitioner, DGS reviewed its Florida State Unemployment Compensation reports, payroll ledgers, financial statements, listing of projects, and listing of managerial supervisory employees. In practice, DGS considers "permanent" to mean the number of positions that an employer uses on a regular and predictable basis to carry out its work. In practice, DGS personnel make a distinction between "full-time" and "permanent" employees. In evaluating the Petitioner, DGS evaluated two criteria: 1) the continuum or permanency, that is, the regularity and predictability with which a position appears, and 2) the length of service given by that position in a particular quarter--12 to 13 weeks being the cutoff for the count. Only when those two elements are met simultaneously does DGS count a position for purposes of applying Rule 13-8.005(4)(c) F.S. The agency does this as a result of two final orders addressing the number of employees for MBE certification. See, Dees, Inc. and Falcon Mechanical, Inc., supra. Contractors determine the number of people they need to do a project by reviewing the specific plans and specifications for each job/project. In preparing bids, contractors determine how much work is involved in a given job and how long it is going to take to accomplish it. It is DGS' experience that contractors will know how many employees they need to hire for any particular job/project/contract and that the number of employees needed will be represented on the contractors' Florida Employer's Quarterly Wage and Tax Reports (unemployment compensation tax reports) Petitioner's reports, like those of every other applicant, list all employees who worked for the company during each 13-week period, regardless of duration of employment. Bobby Strickland, Petitioner corporation's minority qualifying person's husband, is qualified to determine the number of employees Petitioner needs on each job. He has held a master electrician's license for 18 years and has been involved in the electrical contracting business for 31 years. He currently determines the amount and cost of materials involved and the number of employees required to complete each contract by reviewing the plans. In submitting Petitioner's bids, he has taken into account how many persons he will need to carry out each contract, understanding that some employees on any given job on any given day may not report for work. The rule does not require that DGS make a determination of how many employees are needed to perform each job/project/contract on the basis of such plans, and DGS does not review any plans, does not assess the complexity of any contract, and does not substitute its judgment call for that of the contractor applicant on that basis. Rather, it reviews documents prepared by the contractors indicating actual number of employees used and revenues generated. See also, Finding of Fact 29, infra. The number of employees Petitioner needs on each job depends in part on the quantity of work subcontracted out. Petitioner contracts out certain portions of its construction contracts. All witnesses concur that it is reasonable to count the subcontractors as independent contractors and not as employees. Subcontractors and their employees do not appear on Petitioner's payroll as its own employees and there has been no demonstration that they appear on any of the other forms/ documentation listed in Rule 13-8.005(4)(c) F.A.C. The number of employees and the names of the employees whom Petitioner had on its payroll for any given quarter is reflected in its Florida Employer Quarterly Wage and Tax Reports (unemployment compensation reports). During 1986, 1987, 1988 and the first three quarters of 1989, Petitioner reported the following number of employees on its Florida Employer's Quarterly Wage and Tax Reports: MONTH QUARTER 1986 1987 1988 1989 January 39 44 51 6 February 39 32 55 64 March 1st 40 39 55 53 April 39 62 56 51 May 43 67 57 58 June 2nd 46 65 57 49 July 46 67 61 46 August 46 57 73 40 September 3rd 43 54 66 44 October 45 53 57 November 49 50 60 December 4th 45 46 60 The total number of employees on Petitioner's payroll fluctuated from a high of 73 to a low of 32 between the quarters ending 3/31/86 and 9/30/89. In the last three years, Petitioner employed a total of 273 different persons. Two hundred thirty-three of these 273 persons worked less than one year. Stated differently, in that period, at least 40 persons were employed by Petitioner for a duration of one or more years. On October 9, 1989, Petitioner employed 36 people, which it admittedly needed to keep its business going in terms of the construction projects it had at the time. By the date of the formal hearing, Petitioner had increased the number of its employees to 38; 22 field workers were spread among five construction jobs, plus two service staff employees, two warehouse staff employees, and three office/clerical staff employees. The balance may be supervisory staff. Of the 38 employees paid by Petitioner's October 24, 1989 payroll, nine had been employed more than three consecutive years. At no time between the quarter ending 3/31/86 and the quarter ending 9/30/89 did Petitioner employ fewer than 26 employees who were working from 12-13 weeks in any quarter. The least number of employees working full-time for a minimum of 12 weeks in any particular quarter for the quarters ending 3/31/86 through 9/30/89 was 26, and the largest number was 49. Twenty-six employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/87 also appeared on the unemployment tax report for the quarter ending 12/31/87. Thirty employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/88 also appeared on the unemployment tax report for the quarter ending 12/31/88. Thirty employees were listed on Petitioner's payroll for the quarter ending 3/31/89 who were also listed on the payroll as of 10/31/89. In determining the number of employees that an MBE applicant needs to carry out its business, DGS also considers the number of projects the applicant enters into and the quantity of work performed because it is DGS' experience in investigating businesses in the construction industry that the greater the number of contracts an applicant has, the greater its revenues and the greater the number of employees an applicant will need to carry out its business. The rule permits this latitude. Bobby Strickland conceded that the amount of work and the number of employees the Petitioner needs fluctuates with the number of contracts it has and the amount of work required under those contracts at any given time. According to J. Kinson Cook, however, gross revenue is not determinative of the number of employees required to complete a contract. J. Kinson Cook, Inc., a general construction firm, has 12 "permanent full-time employees," as Mr. Cook personally defines that term, and its contracts total an average of $20 million per year. However, J. Kinson Cook, Inc. is not a certified MBE, and Mr. Cook's opinion as an expert in the construction field was not rendered on the basis and criteria established by Rule 13-8.005(4) (c) F.A.C. In 1986, Petitioner had 32 commercial construction contracts totalling $4,760,539. In 1987, Petitioner had 10 commercial construction contracts totalling $814,593.90. In 1988 Petitioner had 16 commercial construction contracts totalling $2,143,412. As of the date of formal hearing in 1989, Petitioner had 13 commercial construction contracts as follows: Dittmand Chemistry $ 8,295 Sugar Creek Theatres 150,000 Village Green 12,961 Sewage Pumping Stations 155,986 Koger-Osborne Building 182,000 Wal-Mart 187,000 Mayo Building 29,000 FSU-Sports Complex 925,000 Kentucky Fried Chicken n/a Hartsfield Elementary School 190,000 Victoria's Secret 13,700 John Wurst n/a $1,853,942 Some of the contracts listed for 1986-1989 include projects that have extended (will extend) into later years. Beyond construction income which has been reviewed supra., Petitioner also performs residential and commercial service work, the income from which was $354,076.56 in 1986; $268,718.42 in 1987; and $375,157.94 in 1988. Petitioner projects its income produced from service work in 1989 to be $200,000. Petitioner's residential service work includes the electrical work on the construction of new homes. On October 9, 1989 Petitioner had eight residential construction projects. Petitioner does repeat business in its commercial service work and in the construction of new homes (residential service work). Petitioner's gross receipts were $4,193,064 in the fiscal year ending July 1, 1989 and $2,150,289 in the fiscal year ending July 1, 1988. Petitioner's gross revenues for the fiscal year ending in July 1987 were $2,156,722. Petitioner projects its gross revenues for the fiscal year ending July 1990 will be between 2.5 and 3.0 million. Petitioner has nine supervisory employees: six construction foremen, one warehouse supervisor, one office supervisor (Ima Jean Strickland), and one field supervisor (Bobby Strickland). Petitioner conceded that each supervisor must have at least one subordinate to supervise, but it is also clear that the number of persons supervised fluctuates with the skill of the workers and the complexity of the jobs in progress. As of the date of hearing, foreman Ronald Fraser was supervising nine employees on the Wal-Mart project. At the time of his deposition, October 12, 1989, he was supervising eight employees on that project. He supervised approximately twenty-five employees on the Department of Education Building and anticipated that he would supervise 10 employees on the Hartsfield School project. As of the date of hearing, foreman Kenneth Cushing was supervising four employees on the Koger Center project. Ima Jean Strickland regularly supervises the two office employees. At the time of his October 12, 1989 deposition, foreman Charlie James was supervising three employees, which is the average number of employees he supervises. As of she date of his October 12, 1989 deposition, foreman Donald Metcalf was supervising five employees redoing the fire alarms at Florida State University. On an average, Mr. Metcalf supervises 4-5 employees. Foreman John Garrett Hemanes normally supervises one employee, on average. As of the date of formal hearing, Bobby Strickland was responsible for supervising all of the field employees. His is a higher level of supervision than that of the respective construction foremen and their chain of command often passes through him. Therefore, his position should be counted only once. Thomas J. Strickland, a/k/a Jeffrey Strickland, supervises one employee. He is the warehouse supervisor. None of Petitioner's employees are eligible for paid sick leave; however, all employees may take unpaid sick leave with Bobby Strickland's approval. Petitioner's employees are eligible to participate in an employer-sponsored profit sharing plan after six months of employment. Vesting in the pension plan is determined by federal regulation, not company policy. After an employee has been with the company for 12 months of continuous service, the employee can benefit from profit sharing in the form of a cash bonus. Additionally, an employee who has not had an accident during a 12-month period is entitled to a safety bonus. During the years 1986-1989, Petitioner's contracts have primarily been in Leon County and the surrounding area, and therefore, it has been able to circulate staff from project to project for its own advantage. By so doing, Petitioner encourages good employees to stay with Petitioner longer. In order to keep an ample amount of work going, Petitioner continuously reviews potential jobs and prepares and submits bids. On an average, Petitioner bids 3-4 contracts a month. Petitioner's decision to bid is affected by the amount of work in progress and whether or not it has adequate manpower. If it has more work than it can handle, Petitioner does not bid up more.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of General Services enter a final order which: Dismisses that portion of the Petition addressing the constitutionality of the statute, Finds Petitioner to employ more than 25 permanent full-time employees, and Denies Petitioner recertification as a Minority Business Enterprise under Chapter 288 F.S. DONE and ENTERED this 9 of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 9 day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4402 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 4, 7-10 and 12-14 are accepted. 2, 3, 5-6 and 11-17 are accepted as modified to conform to record as a whole. is rejected as a FOF and as a Conclusion of Law (COL) and as contrary to the record as a whole. and 18 are rejected as immaterial since this is a de novo proceeding. See the COL. Moreover, presentation of Summary 15 in the de novo proceeding is sufficient, in light of the Petitioner's burden of proof. 19 is rejected as immaterial and as legal argument in light of the duly promulgated rule. 20-23 are rejected as stated as immaterial since this is a de novo proceeding. See the COL. Some of this material has been incorporated in substance into the Recommended Order so as to demonstrate that application of the rule relies upon applicant- generated information after the applicant has assessed its own needs, and that such needs are not "second-guessed" by whoever applies the rule. Respondent's PFOF: 1-3, 5, 11-18, 20-22, 26-36, 40-44, 46-56, 59, 62, and 64-66 are accepted. 4, 6-9, 19, 24-25, 37, 39, 45, 57-58 and 60-61 are accepted as modified to clarify the concept, and to eliminate unnecessary, subordinate or cumulative material and mere description of testimony or exhibits. 10 is rejected as unnecessary. 23 and 63 are accepted as modified to eliminate legal argumentation and to reconcile the testimony and evidence as a whole. 38 is rejected as unnecessary and unduly speculative. COPIES FURNISHED: E. Thomas Brushwood, Esquire Brushwood and Gruver, P.A. Post Office Box 10117 Tallahassee, Florida 32302-2117 Susan B. Kirkland, General Counsel Alma Gonzalez-Neimeiser, Staff Attorney Department of General Services 2737 Centerview Drive-Suite 309 Tallahassee, Florida 32399-0950 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
