Findings Of Fact Petitioner Oscar Nunez Service, whose owner is Oscar Nunez, is involved in concrete construction work in Florida. As such it is engaged in projects such as State Project No. 10906-954 which has been advertised and bids solicited by the State of Florida, Department of Transportation. This project is under what is known as a mini-contract. Those contracts are ones whose dollar amount does not exceed $250,000. Being a mini-contract, there is no prequalification requirement. See Section 337.14, Florida Statutes. Petitioner has a sufficient interest in this project as a potential bidder to maintain the action. The project at issue consists of maintenance activity related to sidewalk repairs at six locations within Tampa, Florida. Those locations are close by each other. The scope of the work and the bid quantities for the project approximate $200,000 in estimated cost. The specifications call for the completion of the project within 180 calendar days. Petitioner's specific claims are to the effect that if the amount of yardage of concrete to be poured were reduced in half through the establishment of an initial phase of contract with the option to renew, Petitioner could meet the performance bond requirement and that without such an arrangement Petitioner cannot meet that requirement. Petitioner argues that, with this renewal option arrangement, unit pricing could remain constant and he could conclude the job. Another element to his argument, which is associated with this point of view and was testified to by the witness Oscar Nunez who had made the remarks about his bonding position, was to the effect that 180 days as set forth in the specifications to the contract was inadequate. It was inadequate in his mind because he wanted to maintain control over the size of his work crew by having it remain more constant than would be allowed for in this contract. In this connection, Nunez argues that to do the contract within the time allotted would require the use of two to three dump trucks, and he has only one dump truck available to him routinely. With the limitations of his resources, Nunez could not finish the job within the 180 days allotted. In support of his argument, he cites the fact that another project which was about half the size of the present project took 140 days to complete. Nunez has been involved in sidewalk repair work for the last. three years prior to the hearing. He concedes that the contract work can be done by large contractors. He further acknowledges that those contractors who have offered bid responses and whose names are reflected in Respondent's Exhibit 2 admitted into evidence are large contractors capable of meeting the requirements of the specifications as announced by the Respondent agency. Although Nunez testified that he feels the arrangement in this project is such as to inhibit the opportunities of small businesses to seek participation in mini-contracts, those contracts of $250,000 or less in value, he admits that he is not acquainted with the financial position and work capacity associated with those other small businesses. Nunez's attack on the bid specifications does not address the adequacy, detail, sufficiency or correctness of the bid solicitation in the main. The fact that a number of bidders have offered responses to the invitation is an indication that the contractors with adequate bonding capacity, equipment and labor forces are interested in pursuing this contract. Through the remarks of Arthur Tidwell, District Maintenance Engineer, District VII, Department of Transportation, it is revealed that mini-contracts are designed to speed up the contract process and are particularly related to maintenance responsibility. They are not per se associated with the creation of special opportunities for small or minority businesses. The project at issue is one of a relatively high priority given the low condition or rating for the existing sidewalks, the fact that Tampa is urban in nature and the concern by the Department that these poor conditions pose the threat of an inordinate number of accidents. Tidwell identified the fact that doing the contract in the fashion contemplated was a reasonable choice given the close proximity of the repair sites to one another. He described the fact that a larger contract amount would allow for the total work to be completed sooner, without duplication of mobilization or moving costs which are potentially involved with the use of multiple or renewal contracts. He also identified the fact that the Department's administrative costs and inspection costs are reduced with a more comprehensive contract. Tidwell identified the fact that the practices and procedures that are promoted by the Department for its budget year 1988-1989 call for the obligation of as much budget money in the first quarter of that fiscal year as could be achieved. Therefore, this project was brought forth having in mind compliance with that directive. In the district in question, which is District VII, fourteen contracts are contemplated for letting in the budget year ranging from $35,000 to $249,000. This project at issue is the second highest by dollar amount with an average contract being in the range of $115,000. Further testimony by Tidwell established that carrying forward the agency goal of committing the funds early on avoids the loss of funding at the end of the fiscal year for failure to complete budgeted projects. Under the current Department guidelines, the use of renewal contracts or renewal options are associated only with annual contracts. The project at issue is not an annual contract. The specifications at 1.4.2 indicate that a renewal option is not involved in this project. The solicitation in this case calls for 180 calendar days for the completion of the work. In arriving at this figure, the Department looked at its experience in similar projects that had bean concluded and made a reasonable estimate of the time necessary to conclude this project. This opinion is supported by the fact that five bidders offered their responses without challenging the reasonableness of the projected completion time set forth in the specifications. As Respondent perceives the challenge, it has not been shown that Respondent by a statute, rule or policy is required to adhere to the special needs of this Petitioner or others in similar circumstance concerning their capacity to carry forward the terms contemplated in this solicitation. This is a correct perception. As alluded to before, the mini-contract is a means to seek the timely and economical conclusion of various classes of work sought by the Department of Transportation without the protection of prequalification. Again, the mini-contracts are not primarily for the benefit of small businesses or minority businesses, beyond the existing DBE (Disadvantaged Business Enterprise) goals. The requirement for the performance and payment bond is authorized by Section 337.18, Florida Statutes. This pertains to the proof of the ability to acquire a performance and payment bond on the part of the bidder.
Findings Of Fact Petitioner Cobo Company, Inc., is a mechanical contractor located in Miami, Florida, whose qualifying agent, Jose Cobo, is certified in that capacity pursuant to Chapter 489, Florida Statutes. By letter of August 18, 1980, Respondent Department of General Services confirmed Petitioner's annual prequalification as a potential bidder for building construction contracts pursuant to Section 255.29, Florida Statutes, for the "type or class as defined in your license." (Testimony of Cobo, Exhibit 1) At an undisclosed date, Respondent published an advertisement for bids for Project No. DGS-7969-C, "Major Repairs-Chiller Replacement, Graham Building, Miami, Florida." The advertisement required all bidders to submit prequalification data of their eligibility to submit proposals if not previously qualified for the current fiscal year. The advertisement an invitation for bids stated that bids must be submitted in full in accordance with the requirements of the drawings, specifications, bidding conditions, contractual conditions, and that sealed bids would be opened on September 30, 1980. Section B-2 of the specifications required that the bidder present evidence that he was "authorized to perform the work required on these documents in accordance with the applicable provisions of Florida Statutes governing contractors." (Exhibit 4) Respondent's Instructions to Bidders further required that bidders submit evidence of ability to provide necessary performance and labor and material payment bonds, and that bids would be accompanied by a bid guarantee of not less than 5 percent of the amount of the bid. The instructions required bidders to submit a list of previous contracts involving similar work which had been satisfactorily completed, and to list those qualified subcontractors which the bidder intended to be employed on the contract. They further required a bidder to indicate bid prices on the proposal form for the entire work and for any alternates on which he bids. The instructions stated that if the base bid was within the amount of funds available to finance the contract and the owner (Respondent) wished to accept alternate additive bids, contract award would be made to that responsible bidder submitting the low combined bid, consisting of the base bid plus alternate additive bids. Section B-24 of the contract document reads in part as follows: B-24 CONTRACT AWARD The Contract will be awarded by the Executive Director, Department of General Services, as soon as possible, to the lowest qualified bidder provided in his bid is reasonable and it is in the best interest of the owner to accept it. The Owner reserves the right to waive any informality on bids received when such waiver is in the interest of the Owner. The Agreement will only be entered into with reasonable contractors, found to be satisfactory by the Owner, qualified by experience and in a financial position to do the work specified. Section 01010 of the specifications provides in part as follows: SECTION 01010 - SUMMARY OF WORK 1. GENERAL DESCRIPTION The project in general consists of construction of the contract entitled Major Repairs-Chiller Replacement, Graham Building, Miami, Florida, State Project No. DGS-7969-C. A general Description of the project and its scope includes the following: Replacement of chiller for central air conditioning system. Install new cooling towers and pump. The contract drawings and specifications provided for the removal of a portion of an interior wall, and removal of an exterior wall window and masonry work below the window to provide access for removal of the existing chiller and its replacement with new equipment. In addition, the contract included electrical work incident to the installation of the chiller, removal of an existing hand rail for clear access to the equipment and later replacement, installation of pitch pans for pipes and other openings on the roof, and the erection and installation of structural steel cooling towers. The specifications call for painting, plaster work, replacement of flooring and ceiling, and installation of a window wall panel, as required in restoring the demolished area. They further called for a replacement demountable interior wall partition to provide future access to the air conditioning equipment, as an alternate portion of the project. Section 01021 of the specifications described the bid items as a Base bid, Additive Alternate No. 1 for using a higher efficiency chiller, and Additive Alternate No. 2 for installation of the demountable partition. However, the specifications had been altered prior to the issuance of the bid invitation to provide for the higher efficiency chiller as part of the Base bid, but Section 01021 had not been changed accordingly. Respondent's proposal form for use by bidders, however, had provisions for entry of only a Base bid and Alternate No. 1 for the installation of the demountable partition. (Testimony of Karagianis, Exhibits 4-6) Petitioner submitted its bid for the project on September 30, 1980. Its base bid was $225,440. It also bid on the alternate for installation of demountable partitions in the sum of $1,170, and added to the bid form an alternate for the use of a higher efficiency chiller in the amount of $1,150. Seven other bids were submitted on the proposal ranging from $239,300 by Sam L. Hamilton, Inc. to a high bid of $403,624. Hamilton's additive bid for the alternate partitions was in the amount of $1,950. Petitioner enclosed with its proposal the required contractor's qualification statement showing previous experience as a mechanical contractor, bid bond, and other required information. It listed L. Milton Construction, Inc. as a general construction subcontractor and Sparta Insulation as an insulation contractor. Although Petitioner intended that Lloyd N. Jones perform the electrical work on the project, he was not listed as a subcontractor because Petitioner did not know at that time whether he would be a subcontractor of Milton or of his own firm. Petitioner included the alternate bid for the higher efficiency chiller because it was required under Section 01021 of the specifications. Milton's bid to Petitioner for the construction work on the contract was in the sum of $7,000. (Testimony of Cobo, Exhibits 2-3) By letter of October 7, 1980, Respondent informed Petitioner that it intended to contract with Sam L. Hamilton, Inc. which had been determined the qualified low bidder meeting the requirements of the specifications. The letter advised the Petitioner that its bid was rejected because it was not a certified or registered general or building contractor as required by Section 489.105, Florida Statutes. Attached to the letter was a copy of a letter of William J. Roberts, attorney for the Florida Construction Industry Licensing board to Respondent, dated October 18, 1977, setting forth a legal opinion that a mechanical contractor could not be the prime contractor on a state contract in which the bulk of the work is mechanical in nature, but the remaining portion is to be subcontracted to a general contractor. Roberts testified at the hearing that he had drafted legislation which changed the definition of "contractor" previously found in subsection 478.102(1), and in his view, under such definition, a mechanical contractor would not be authorized to become a prime contractor if it were necessary for him to subcontract any non-mechanical work called for under the contract provisions which he was not qualified to perform. (Testimony of Roberts, Exhibit 7) Respondent's project director estimates that the chiller replacement project was approximately 90 to 93 percent mechanical in nature, and 7 to 10 percent requiring general construction and electrical work. It was his understanding of departmental policy that if any portion of a contract involved general construction work, only a general contractor would be eligible to receive the award and that, in this case, Petitioner could not therefore be accepted as a prime contractor. Respondent's chief of the Bureau of Construction has instructed Bureau personnel not to award contracts to mechanical contractors which involve non-mechanical work unless the contractor is certified in the non-mechanical area for which the work is required. Two contracts awarded by Respondent to mechanical contractors in 1980 which involved non-mechanical work were "incorrect" awards, in the view of the Chief of the Bureau of Construction. (Testimony of Karagianis, Scaringe, Composite Exhibit 8) General contractors and mechanical contractors are required to be licensed under Chapter 489, Florida Statutes. Any person who desires to be certified statewide in a particular contracting area must establish his competency and qualifications by a combination of education and experience, plus the successful completion of an appropriate examination. The general contractor's examination and mechanical contractor's examination have similar portions relating to applicable federal state laws and regulations in the contracting field. The remaining and major portion of the mechanical contractor's examination deals with subjects of that specialty such as air conditioning, refrigeration, heating, and the like. The general contractor's examination primarily covers matters relative to construction, such as site work, excavation, structural shell, masonry walls, piles, columns, and form work. (Testimony of Allen, Composite Exhibits 9-10) In the opinion of an expert in the field of architecture, there are no parts of the chiller replacement project which require the services of a general contractor. The demolition of the interior partition and the window wall properly may be accomplished by a mechanical contractor and installation of demountable partitions in lieu thereof can be obtained from specialty suppliers. Other aspects of the project, such as concrete pads, installation of cooling tower, pitch pans, and painting similarly are all considered to be incidental work to a project that is basically mechanical in nature. Certain large mechanical contractors customarily employ qualified individuals to perform specialty tasks such as painting and demolition work, but smaller contractors accomplish such portions of a job by subcontract. (Testimony of Coxen) A recent contract award was made by Dade County to a mechanical contractor for a project similar to the one here in controversy. In that case, the mechanical contractor had listed a general contractor as a subcontractor for the project. (Exhibit 11)
Recommendation That Petitioner Cobo Company, Inc. be awarded contract for Project No. DGS- 7969-C, as the qualified low bidder meeting the requirements of the specifications. DONE and ORDERED this 30th day of January, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1981. COPIES FURNISHED: Ronald C. Laface, Esquire Roberts, Miller, Baggett, LaFace and Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Sprio Kypreos, Esquire Department of General Services Room 457 Larson Building Tallahassee, Florida 32301 Lewis M. Kanner, Esquire Williams, Salomon, Kanner, Damian, Weissler and Brooks 1000 DuPont Building Miami, Florida 33131 Henry P. Trawick, Jr., Esquire Trawick and Griffis, P.S. 2051 Main Street Post Office Box 4019 Sarasota, Florida 33578 Thomas R. Brown Executive Director Department of General Services 115 Larson Building Tallahassee, Florida 32301
The Issue Whether Respondent violated Sections 489.127(1)(f) and 455.227(1)(q), Florida Statutes (2004), and what discipline should be imposed.
Findings Of Fact At all times material hereto, Respondent was not licensed to engage in construction in the State of Florida. At all times material hereto, Respondent’s business did not possess a certificate of authority to practice as a contractor-qualified business. On or about October 5, 2004, Respondent contracted with Dyba to repair the roof at Dyba’s residence in Santa Rosa County, Florida. The contracted cost of these repairs was $3600, of which Respondent collected $600 from Dyba by check. On or about October 9, 2004, Respondent placed an advertisement in the Pensacola News Journal asserting that he would make repairs to kitchens, baths, decks, siding, docks, and most any hurricane damage. On June 8, 1994, Petitioner issued a Notice to Cease and Desist to Respondent for engaging in the unlicensed practice of construction contracting. The total investigative cost to the Petitioner was $166.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order finding Respondent guilty of violating Section 489.127(1)(f), Florida Statutes (2004), imposing an administrative fine in the amount of $5,000, and assessing costs of investigation and prosecution in the amount of $166.88. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Douglas Claiborne DOC No. 203745 Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 John Thomas, Classification Officer Berrydale Forestry Camp 6920 Highway 4 Jay, Florida 32565 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Washington, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are made: At all times material to this proceeding, Respondent Wilmon Ray Stevenson was licensed as a registered building contractor in the state of Florida, holding license numbers RB 0035005 and RB A035005. License number RB 0035005 was issued on an active status qualifying an Individual in March 1987 and is still in effect. License number RB 0035005 replaced license number RR 0035005 issued in December, 1980. License number RB A035005 was issued on an active status qualifying Yankee Construction, Inc. d/b/a Olympic Homes of Citrus County (Olympic) in June 1987 and replacing license number RR A035005 issued in August 1981. In October, 1988 Respondent submitted a change of status application which was not acted upon by Petitioner until February, 1989 when it was deleted. However, Petitioner's file (Petitioner's Exhibit 1, page 2) indicates the license was in effect only until October, 1988. The Marion County Building Department was advised of this status change in September, 1988. Findings As To Case No. 90-1637 On April 16, 1988, Frank and Margaret Orkwis entered into a contract with Olympic to construct a home for $37,900 which was later modified, increasing the contract price to $39,363.00. On July 26, 1988 a permit for the Orkwis job was obtained from the Marion County Building Department in accordance with the Respondent's letter dated January 25, 1985 authorizing certain individuals to "pull" permits on his license. There was a total of $27,583.20 paid to Olympic on the Orkwis contract which included $27,483.20 paid by draw schedules and $100.00 as a down payment. Olympic stopped work on the Orkwis home sometime around November 27, 1988 and failed to complete the work under the contract. Olympic gave no notice to Orkwis that it intended to terminate the work on the Orkwis job. In fact, Olympic kept putting Mrs. Orkwis off about completing the job until sometime in late January, 1989 or early February, 1989 when she decided to get a permit and complete construction. Olympic terminated the Orkwis job without just cause. The following liens were recorded against the Orkwis property for the failure of Olympic to timely pay for materials and labor furnished to Olympic for the Orkwis's job in accordance with Orkwis contract: (a) Florida A/C Sales and Services, Inc., filed December 13, 1988 and; (b) Florida Forest Products, Inc. filed December 15, 1988. The labor and materials had been furnished between October 24, 1988 and November 22, 1988. Olympic was contacted by Mrs. Orkwis concerning the liens, with no response. However there was insufficient evidence to establish that the liens had not been removed from the property, by payment or bond, within 30 days after the date of such liens. Sometime in early 1989, Mrs. Orkwis obtained a permit and she and her husband completed the home. Although Mr. Orkwis had obtained an estimate of $27,050.00 from a contractor to complete the home, she and her husband invested 466.5 hours of their time and $10,340.00 for materials to complete the home. In addition to the material, a reasonable amount for labor to complete the home would be $10,000.00. Findings As To Case No. 90-1889 John J. and Josephine Grillo and Madeline Chapman entered into a contract with Olympic for construction of a home on June 11, 1987. A permit was obtained for the Grillo/Chapman home under Respondent's license. The Grillo/Chapman home was completed and a certificate of occupancy issued January 13, 1989. Olympic was paid in full under the contract. Before the expiration of the one-year warranty under the contract, Olympic was advised of certain problems with the construction which Olympic attempted to correct. It is unclear whether the problems were satisfactorily corrected by Olympic but it appears that the only complaint not resolved was a water stain on the carpet that was the result of water seeping in under a door. Respondent was not aware of these problems until after the expiration of the one-year warranty and upon learning of the problems, commented that he was not obligated since the warranty had expired. There was insufficient evidence to establish that the problems were not corrected in accordance with contract. Findings As To Case No. 90-1890 Veronica McPherson entered into a contract with Olympic on March 1, 1989 to construct a home for the contract price of $36,450.00 which was later modified increasing the contract price to $37,775.00. All permits were obtained under the Respondent's license pursuant to a letter dated January 15, 1985 authorizing certain individuals to "pull" permits under Respondent's license. McPherson paid $26,442.50 to Olympic pursuant to a draw schedule in the contract as the home was being constructed. Additionally, McPherson paid a $100.00 down payment. All work performed by Olympic pursuant to the McPherson contract was prior to November 22, 1988. The exact date of termination of work is uncertain. Olympic notified McPherson that it had terminated work and would not complete construction of the home. The exact date of this notification is uncertain. There is no evidence that notice was not given within 90 after termination of work. Olympic terminated work without just cause. McPherson paid a roofing contractor $998.00 to complete the roof on her unfinished home in order to protect the interior. McPherson was financially unable to complete construction of the home. A reasonable estimate to complete construction of the McPherson home at the time work ceased would be $20,000.00. On December 15, 1988 Florida Forest Products, Inc. recorded a lien on December 15, 1988 against the McPherson property for building materials furnished to the McPherson job on order of Olympic on October 24, 1988 for construction of the home pursuant to the McPherson contract in the amount of $1,450.08. There was insufficient evidence to establish that this lien had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien. There were three other claims of liens for labor and materials furnished to the McPherson job on order of Olympic between October 19, 1988 and December 2, 1988 for construction for the home pursuant to the McPherson contract as follows: (a) Florida A/C Sales and Services, Inc. dated December 8, 1988 for $1,059.00; (b) Masons Concrete of Crystal River dated December 14, 1988 for $354.97 and (c) Panning Lumber Company, a Division of Wheeler Consolidated, Inc. for $2,284.13. There is no evidence that any of the above liens were ever recorded against the McPherson property. Likewise, there is no evidence to establish that these liens had not been removed from the McPherson property, by payment or bond, within 30 days after the date of such lien, if in fact they were recorded. General Findings Respondent was advised by Larry Vitt in February, 1988 that Olympic was having financial problems. Respondent never supervised the financial aspects of Olympic. Respondent did not participate in the contract process or supervision of the construction of homes contracted to be built by Olympic. More specifically, he did not participate in the contract process or the supervision of the construction of the Orkwis, McPherson or Grillo/Chapman homes. Respondent's main purpose in being involved with Olympic was to use his license to qualify Olympic and to contract all of Olympic's concrete block work. In March, 1989 Respondent advised the Marion County Building Department that no one was authorized to "pull" permits under his license. However, at no time did Respondent withdraw the permits for the Orkwis and McPherson jobs that had been issued under his license. The record is clear that Respondent did not understand his relationship with Olympic nor did he understand the responsibility he incurred when he used his license to qualify Olympic. However, his inexperience or ignorance in this regard does not relieve him of his responsibility to those whose homes were built or not completely built pursuant to a permit issued under his license.
Recommendation Having considered the foregoing Findings of Facts and Conclusions of Law, the evidence of record, the demeanor of the witnesses and the disciplinary guidelines set out in Chapter 21E-17, Florida Administrative Code, it is RECOMMENDED: That the Board enter a final order finding Respondent guilty of violating Section 489.129(1)(k) and (m), Florida Statutes, and for such violations it is Recommended that the Board assess the Respondent with an administrative fine of $2,500.00. It is further Recommended that Counts I and II for the Administrative Complaint in Case Nos. 90-1637, 90-1889, and 90-1890 be Dismissed. DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1637 The following constitute my specific rulings pursuant to Section 120.59(20, Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings of Proposed Findings of Fact Submitted by the Petitioner 1. Covered in Conclusions of Law. 2.-8. Adopted in Findings of Fact 1, 2, and 3. 4.-6. Adopted in Findings of Fact 15, 16, and 17, respectively. 7. Adopted in Findings of Fact 19 and 20, but modified. 8.-12. Adopted in Findings of Fact 18, 4, 5, 6, and 8, respectively. 13.-14. Adopted in Findings of Fact 9 and 10, respectively, but modified. Adopted in Findings of Fact 21 through 25. Restatement of testimony; not stated as a Finding of Fact but see Findings of Fact 10 and 14. Adopted in Findings of Fact 13 through 15. Adopted in Findings of Fact 16, but modified. Rulings of Proposed Findings of Fact Submitted by Respondent 1. Covered in Preliminary Statement. 2.-8. Adopted in Findings of Fact 1, 2, 3, 3, 15, 15, and 16, respectively. 9. Adopted in Findings of Fact 19 and 20. 10.-11. Adopted in Findings of Fact 18 but modified. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8 and 9. 16.-20. Adopted in Findings of Fact 7, 7, 11, 13 and 14, respectively, but modified. Not material. Adopted in Finding of Fact 3, but modified. Not material. Copies furnished to: Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Fred A. Ohlinger, Esquire P.O. Box 1007 Beverly Hills, FL 32665
The Issue Whether the proposed decision of the Department of Transportation to award Contract No. E1C74 to Intervenor Rick Richards, Inc., is contrary to the agency's governing statutes, rules, or policies or the specifications of the contract.
Findings Of Fact On April 3, 2002, the Department posted its intent to award Contract No. E1C74 ("Contract" or "Contract No. E1C74") to Rick Richards, Inc. ("Rick Richards"). The Contract was for mowing and litter removal on the interstate system in Charlotte and Lee Counties, Florida. Canco's bid was lower than Rick Richard's bid. However, after a thorough review of Canco's proposal and other relevant documents, the Department rejected Canco's bid as non- responsive. The Department's decision was based on its determination that Canco's bid proposal for Contract No. E1C74 provided false and misleading information and that Ronald Hummel ("Hummel"), the president and principal of Canco, is an illegal alien. Hummel is a nonresident alien who was deported from the United States in the fall of 1996, after being convicted of a felony, manslaughter. Since being deported and at all times material to this proceeding, Hummel has lived in Canada. Due to his being deported, Hummel is barred from entering the United States without the permission of the United States Attorney and cannot legally reside or work in this country. At Hummel's direction, Canco, Inc., was incorporated in Florida in 1997, a few months after Hummel was deported from the United States. After Canco was incorporated, the company submitted bid proposals to the Department and has been awarded at least two Department contracts. At the time these prior contracts were awarded to Canco, appropriate Department officials were not aware that Hummel, the principal of Canco, was a nonresident alien. The Florida Department of Transportation Standard Specifications for Road and Bridge Construction 2000 ("Standard Specifications") are incorporated into the Department's solicitation for Contract No. E1C74, together with additional specifications for the proposal. In its response to the Department's solicitation for proposals for Contract No. E1C74, Canco submitted a bid proposal, signed by Hummel as president of Canco. The bid proposal declared that the bidder carefully and to its full satisfaction examined the Standard Specifications as amended by the specification package and any additional specifications. By responding to the proposal, Canco became subject to Standard Specifications and the revisions thereto. Specification 2-5.1 requires that proposals submitted on behalf of corporations indicate the corporation's bidding office street address. Consistent with this provision, the proposal form has a line marked "Bidding Office Physical Address--City--State--Zip." Hand-written on this blank on Canco's bid proposal is "3204 Lena Road, Bradenton, Florida 34211." Because Hummel was barred from entering the United States, he prepared Canco's bid proposal for the Contract and its other bid proposals for Department projects in Canada. Hummel mailed the subject bid proposal to his accountant in Bradenton, Florida, who then sent it to the Department. Accordingly, the Bradenton, Florida, address listed by Hummel on the Canco proposal as the "bidding physical address" was false. Standard Specification 2-6, Rejection of Irregular Proposals, states that a "proposal is irregular and the Department may reject it if shows omissions, . . . or irregularities of any kind." Canco's bid proposal was non-responsive in that it listed a false "bidding office physical address" and was, thus, properly rejected by the Department pursuant to Standard Specification 2-6. The bid proposal submitted by Canco states in paragraph 11, "The firm certifies that the bidder is not a nonresident alien, or a foreign corporation formed under the laws of a country other than the United States." Hummel signed the form, as president of Canco. By signing the proposal, Hummel certified that the proposal was not being submitted by a nonresident alien, when, in fact, he is a nonresident alien. Petitioner's position is that Canco is an active Florida corporation in good standing and, thus, is permitted to submit proposals and perform work for the Department. Apparently, Petitioner believes that Hummel's status as a nonresident alien is of no import and should not be considered in evaluating Canco's proposal. However, this position is rejected, in view of the facts surrounding the formation and functioning of Canco. Alan Stein ("Stein"), who prepared Canco's Articles of Incorporation ("Articles") and filed them with the Florida Department of State, was listed in the Articles as the sole incorporator. However, no directors were listed in the Articles. According to Section 607.0205, Florida Statutes, when no directors are named, the incorporator is required to hold an organizational meeting. Here, the incorporator took no steps to transfer matter over to directors. Furthermore, Canco never functioned as a corporation. Canco has never had by-laws, has no corporate books, records, or financial statements, has never authorized shareholder dividends, and has held no directors' meetings. At all times since its inception, Hummel was the sole stockholder of the corporation and served as its sole director and sole officer. Also, from the time Canco was formed until approximately mid-August 2002, Hummel was president of Canco. Canco has no real existence and serves only as a mere instrumentality for Hummel. Hummel used the corporation to submit proposals that he could not submit in his own name and to be awarded contracts that could not be legally awarded in his name because of his immigration status. Hummel engaged in improper conduct in the formation and use of Canco. The corporation was formed after Hummel was deported, using a Florida address because Hummel could not legally live or work in the United States. After the corporation was formed, Hummel consistently used the Lena Road address in Bradenton on all official documents, despite the fact that he was conducting and directing the operations of Canco from Canada. The only signatories on the Canco corporate bank account are Ronald Hummel and his father, John Hummel, who lives in Florida. John Hummel keeps Canco's corporate seal and also submits Canco's time sheets to Stein. In or about 1998, Canco filed a Form 1120S and claimed to be a Subchapter-S Corporation. The form listed the address of the sole shareholder, Hummel, as the Lena Road address in Bradenton, Florida. However, Canco could not legally claim Subchapter-S status because such a corporation cannot have a nonresident alien as a shareholder. Stein, Canco's outside accountant, set up Canco as a Subchapter-S corporation, but would not have done so had he known that Hummel was an illegal alien. Prior to Canco's filing the Protest, Stein did not know that Hummel was a nonresident alien. Neither Hummel nor Canco filed income tax returns for 1999, 2000, or 2001. Despite Stein's repeatedly asking Hummel to provide documents so that Stein could prepare the tax returns, Hummel did not and, as of the date of the hearing, had not complied with Stein's request. Hummel submitted two notarized documents to the Department as part of Canco's previous bid submittals, a Contractor's Affidavit of Vehicle Registration (Affidavit) and a Power of Attorney (Power of Attorney). Both documents were signed by Ron Hummel and bore the certificate of a Florida notary that Hummel had personally appeared before them. With regard to the Affidavit, Hummel did not sign the document in the notary's presence. Instead, Hummel signed the Affidavit while he was in Canada and then sent it to Florida where it was notarized. As a result of this action, the Affidavit was a false document. As to the Power of Attorney, there was conflicting testimony regarding whether Hummel signed the document in the notary's presence. Hummel testified that he signed the Power of Attorney while he was in Canada. Contrary to Hummel's testimony, the notary who allegedly witnessed Hummel execute the document testified that Hummel was in Florida and in the notary's presence when the document was signed. Given the conflicting testimony, it is difficult to ascertain which version is true. However, regardless of which version is true, the effect and conclusion is that Hummel acted improperly. If Hummel signed the Power of Attorney in the presence of the notary who was in Florida, Hummel was in Florida illegally. On the other hand, if Hummel signed the document while he was in Canada and then sent it to Florida to be notarized, Canco, through Hummel, submitted a false document to the Department. Petitioner's bid was non-responsive in that Hummel falsely certified that the bidder is not a nonresident alien. This false certification by Hummel is a proper basis for the Department's rejecting the bid pursuant to Standard Specification 2-6. The Standard Specifications, Section 2-11 provides in pertinent part the following: The Department may disqualify any bidder and reject the bidder's proposal or proposals for any of the following reasons: * * * Uncompleted work on other projects that, in the judgment of the Department could hinder or prevent the prompt completion of the proposed work. Failure to pay or satisfactorily settle all bills due for labor and material on other contracts in force at the time of advertisement for bids. * * * (h) Employment of unauthorized aliens in violation of Section 274A(e) of the Immigration and Nationality Act. The Department rejected Canco's bid proposal because Canco had failed to complete work on other projects; failed to settle a bill due for labor on another contract; and employed an unauthorized alien in violation of the Immigration and Naturalization Act. These all constitute a proper basis for rejecting Canco's bid proposal pursuant to Standard Specification 2-11. Hummel submitted false claims to the Department on behalf of Canco for payment for herbicide sprayers and supplied the licenses of two men, James Callihan ("Callihan") and Randall Thomas Lehman ("Lehman"). Lehman never worked for Canco, did not give Canco permission to submit his license to the Department, and did not give a copy of his license to Hummel or any other person associated with Canco. The copy of Lehman's license that Hummel submitted was a copy of the license that the Department had previously supplied to Hummel in response to a public records request for documents from Rick Richards' file. Callihan worked for Canco for three or four days in late March or early April 2002, but has not been paid in full for the work he performed for Canco. The failure of Canco and/or Hummel to pay Callihan for the services he provided on a Department project that was in force when the subject bid was advertised is a basis to reject Canco's proposal pursuant to Standard Specification 2-11(f). After Callihan was no longer associated with Canco, he learned from the Department that the copy of the license that had been submitted by Hummel had expired. Immediately thereafter, on or about June 10, 2002, Callihan contacted Hummel and demanded that his license not be used by Canco. Hummel billed the Department for $50,473.53 for herbicide spraying and received payment for such services by falsely claiming Lehman and Callihan were involved in the work for which the claim was submitted. The claim was for work that was allegedly performed after Callihan had demanded that his license not be used and when Callihan was no longer associated with Canco or Hummel. As noted in paragraph 29, Lehman was never associated with Hummel or Canco. Canco's payroll records show no payments made to either Callihan or Lehman, although Hummel submitted their licenses to the Department indicating that they had performed herbicide services required for the Department project Canco was working on in the summer of 2002. In the summer of 2002, Hummel directed Mario Resendiz, who was not a licensed herbicide sprayer, to spray herbicide on a Department project. Resendiz told Hummel that he did not have a license, but Hummel still told him to spray herbicide, which Resendiz did. The herbicides used in roadside spraying, if used or applied incorrectly, can be harmful to people, animals and the environment. Accordingly, these chemicals are to be used only by licensed professionals. Here, the claim filed by Hummel for herbicidal spraying allegedly done in the summer of 2002, was false. Therefore, the Department could not determine and Canco and/or Hummel did not establish that the herbicidal spraying was completed. Based on the foregoing, the Department was authorized to reject Canco's proposal for failure to complete work on another project, which in the Department's judgment could hinder or prevent prompt completion of the work on the proposed project pursuant to Standard Specification 2-11(e). Hummel has broad and almost exclusive authority of the overall and day-to-day operations of Canco. Hummel prepared and signed bids for Canco, supervised Canco employees, was the Department's contact person for Canco, told Department inspectors that he was on Department job sites, and, in September 2002, visited the Department's Sarasota Maintenance Yard regarding Canco business. No evidence was presented to indicate that the responsibilities now carried out by Hummel would be assigned to someone else. Hummel has regularly received checks from Canco for unspecified amounts twice a month. Hummel testified that the money that he received from Canco was in the form of shareholder dividends. However, this testimony is not credible in light of the fact that Canco never held shareholders' meetings or directors' meeting where dividends were declared. Hummel is an employee of Canco, and the money he receives from Canco twice a month is compensation. Because Hummel is an employee of Canco and is also a nonresident, unauthorized alien, the Department may reject the bid proposal submitted for Contract No. E1C74 pursuant to Standard Specification 2-11(h). Also, Subsection 448.09(1), Florida Statutes, makes it unlawful to employ an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States. Standard Specification 5-8.3 requires that contractors have a supervisor, who is available at or reasonably near the jobsite at all times on a 24-hour basis and who speaks and understands English. Hummel testified that Elias Salinas ("Salinas") and Juan Manceras ("Manceras") were supervisors who worked, and presumably would work, on Department projects being performed by Canco. However, Salinas and Manceras have never performed supervisory duties, were not given the title of supervisor, and were not paid any more than other workers on the job. Salinas and Manceras were only tractor or truck drivers, and not supervisors. Moreover, even if Salinas and Manceras were supervisors, they would not meet the requirement of Standard Specification 5-8.3 because they speak only limited English. Standard Specification 5-8.3 also requires that a contractor submit, by certified mail, the phone numbers and names of personnel designated to be contacted in cases of emergencies. Hummel and/or Canco have never provided this information to the Department for projects it has previously worked on or for the bid proposal for Contract No. E1C74. However, based on Hummel's admission, he is the contact person. In fact, for most, if not all, written communication between the Department and Canco, Hummel was the contact person. Further indication that Hummel is the contact person for Canco is the fact that the telephone and fax number used by Canco and listed on its bid proposal for Contract No. E1C74 is a toll free telephone number located in Hummel's house in Canada. Petitioner's failure to comply with Standard Specification 5-8.3 is a proper basis for the Department's rejecting Canco's bid proposal. Standard Specification 5-8.2 requires that a contractor provide a superintendent with "the full authority to receive instructions from the Engineer and to execute orders or directions of the Engineer, including promptly supplying any materials, tools, equipment, labor, or incidentals that may be required." Hummel testified that he is the contact person within the meaning of this provision and that, depending on the situation, he would then contact someone else. Standard Specification 5-8.2 clearly contemplates a superintendent who is available at or reasonably near the job site. In this case, Hummel is "1200 miles" away and is precluded from being available or reasonably near the job site. Canco's failure to comply with this provision is a basis for the Department's rejecting the bid proposal. A few weeks prior to this hearing, Hummel took steps which he viewed as removing himself as president of Canco and appointing a new president. In mid-August 2002, in a telephone conversation, Hummel asked his friend, Thomas Brown ("Brown"), to serve as president of Canco and Brown agreed to do so. Brown is listed as the president of Canco on the August 22, 2002, annual report filed with the Florida Department of State. However, Brown has no duties, has no knowledge about Canco's Board of Directors, and does not know who Canco employees or supervisors are. As of the date of the hearing, Brown's salary and benefits had not yet been determined. Notwithstanding Hummel's designating Brown as the president of Canco, Hummel has complete power to direct the activities of Canco and the actions of Brown. The credible testimony of Brown was that, with regard to Canco, he will follow Hummel's orders. In Brown's only action as president, Brown signed a bid proposal and Disadvantaged Business (DBE) statement submitted to the Department. However, Brown saw only the pages that he signed. Hummel prepared that bid, which was submitted in Canco's name, and he remains the sole director and sole stockholder of the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order that rejects the bid proposal submitted by Canco Construction, Inc., awards Contract No. E1C74 to Rick Richards, Inc., and dismisses Canco's Bid Protest. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 31st day of December, 2002. COPIES FURNISHED: Canco Construction, Inc. c/o Ronald J. Hammel 3204 Lena Road Bradenton, Florida 34235 Barbara G. Hines, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0458 Robert M. Johnson, Esquire Wilson, Johnson & Jaffer, P.A. 27 South Orange Avenue Sarasota, Florida 34236 John O. Williams, Esquire Williams & Holz, P.A. 211 East Virginia Street The Cambridge Centre Tallahassee, Florida 32301 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Michael Lines, Esquire Department of Transportation 801 North Broadway Bartow, Florida 33831-1249 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Respondent committed the following acts on the five contracting jobs set forth in the Amended Administrative Complaint: Gross negligence, incompetence, and/or misconduct. Financial mismanagement or misconduct. Failure to properly supervise contracting activities he was responsible for as qualifying agent. Job abandonment on all five construction projects. Aiding and abetting an unlicensed contractor to engage in the contracting business. Engaging in a contracting business under a name not on his license and not qualified with the state.
Findings Of Fact At all times material to these proceedings, the Respondent, Raymond Robert Suarez, was licensed as a certified general contractor in Florida, and held license number CG C0011988. The Respondent was the qualifying contractor for Suarez Brothers Construction Company. He was not registered with the Florida Construction Industry Licensing Board as the qualifying agent for Suarez Brothers of Pinellas, Inc. There were two shareholders in Suarez Brothers Construction Company: Frank B. Suarez and Raleigh Suarez. Corporate responsibilities were as follows: Frank B. Suarez, President Abdelia Arguelies, Vice President Raleigh Suarez, Secretary/Treasurer Raymond R. Suarez, Responsible Managing Employee and Qualifying Contractor The corporation was based in Hillsborough County, Florida. On or before February 24, 1987, a corporation was created known as Suarez Brothers of Pineilas, Inc. Craig O. Tennant became president and Joseph Scott Suarez became vice president. The corporation engaged in the construction business and built single-family residences in Pinellas County, Florida. The business was in the county adjoining Hillsborough County, where Suarez Brothers Construction had built homes for ten years and had gained a good reputation throughout the Tampa Bay area, including Pinellas County. The name of the new corporation with its base of operations in Pinellas County, was deceptively similar to that of Suarez Brothers Construction Company. The close resemblance of the name was intentionally misleading, as Suarez Brothers of Pinellas, Inc. attempted to benefit from the reputation for quality construction gained by Suarez Brothers Construction in which the father of Joseph Scott Suarez, Frank B. Suarez, was president and his brother, Raymond R. Suarez, was qualifying contractor. This is evidenced by the construction contract used by Suarez Brothers of Pinellas, Inc., written representations to building departments of a legal connection between the two companies, and the use of the name of the same qualifying contractor on applications for building permits. In the construction contract used by Suarez Brothers of Pinellas, Inc., it was represented that the company had been a Florida builder since 1949. The people actually engaged in building since 1949 were the father Frank B. Suarez, and the uncle, Raleigh Suarez. These two people were not members of the new company. On four of the five projects for which Suarez Brothers of Pinellas, Inc. had written contracts, the name Suarez Brothers Construction was given to the building departments as the contractor of record instead of the actual corporate name. Raymond R. Suarez was named as the contractor, and his contractor's license number was used on the applications for building permits for the five Suarez Brothers of Pinellas, Inc. contracts which are the subject of the complaint in this proceeding. There was no evidence presented at hearing to demonstrate that Raymond R. Suarez knowingly permitted his name and contractor's license number to be used by either the president or vice-president of Suarez Brothers of Pinellas, Inc. to obtain the building permits for the construction of the residence for Robert D. and Norma L. Ganoe (Case #0110319) or the construction of the residence for Reinhold and Monty Brooks (Case #0106921). On or about June 25, 1987, Suarez Brothers of Pinellas, Inc. contracted with James B. Hughes, Jr. to build a home for $190,000.00 at the following location: 9985 Lake Seminole Drive West, Largo, Florida. The building permit issued for the construction on September 29, 1987, was signed by Raymond Suarez, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction of Pinellas on the Hughes project. On February 4, 1988, the contractor on the project was changed to Robert R. O'Andrea. Between September 29, 1987 and February 4, 1988, various subcontractors and materialmen hired by Suarez Brothers of Pinellas, Inc. to provide services or supplies on this job were not paid. Joseph Scott Suarez had been given the funds to timely pay the subcontractors and materialmen by James B. Hughes, Jr. and Wonzel M. Hughes, his wife. Joseph Scott Suarez misappropriated the funds entrusted to him as an officer of Suarez Brothers of Pinellas, Inc. by Mr. and Mrs. Hughes for his own use. As a result, $24,763.63 worth of subcontractors and materialmen's perfected liens were placed against the real property for services and supplies obtained during the time period Raymond R. Suarez was the qualifying contractor of record. Raymond R. Suarez did not have the liens removed from the property within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about August 10, 1987, Suarez Brothers of Pinellas, Inc. contracted with Richard and Linda Vozne to construct a home for $121,041.00 at the following location: 316 Seventh Avenue North, Tierra Verde, Florida. The permit for construction was issued by the Pinellas County Department of Building Inspection on December 12, 1987. Raymond Suarez signed the permit as contractor, and his contractor's license number was given as the qualifying contractor for Suarez Brothers Construction. On July 15, 1988, the contractor for the project was changed to Linda J. Vozne, one of the owners of the property. Between December 12, 1987 and July 14, 1988, claims of lien were filed and perfected against the Vozne project in the amount of $16,047.18 for supplies and services ordered while Raymond Suarez was contractor of record. Suarez Brothers of Pinellas, Inc. had received $10,000.00 front money to begin construction when the construction loan entered into by Richard and Linda Vozne with Barnett Bank of Pinellas County closed on November 13, 1987. One hundred three thousand dollars ($103,000.00) of the loan disbursements were made to the construction company by the bank before the owners removed it from the project. The funds disbursed to Suarez Brothers of Pinellas, Inc. were not used to pay the subcontractors who had performed work and provided supplies on the project, as required by the construction contract. They were misappropriated to another use not related to the Vozne construction project. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have them removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. On or about October 28, 1987, Suarez Brothers of Pinellas, Inc. contracted with Keith A. Phillips to build a home for $134,621.00 at the following location: 5944 Bayview Circle South, Gulfport, Florida. The application for a building permit from the City of Gulfport was dated December 22, 1987, and was signed by Raymond R. Suarez. The contractor was designated as "Suarez Brothers" and the Respondent's license number was given as the qualifying contractor on the Phillips project. In September 1988, Suarez Brothers of Pinellas, Inc. was terminated as the project contractor by Keith Phillips and Cynthia S. Phillips, his wife, although no changes were made in the public records of Gulfport. Between October 28, 1987 and September 1988, the company did not complete construction in a timely manner. Pursuant to contract, the project was to be completed within 182 days. No additional periods of time were granted by the owners to the contractor and none were requested. During the period of time Raymond R. Suarez was the qualifying contractor on the Phillips project, eleven thousand one hundred fifty-three dollars and twelve cents ($11,153.12) worth of subcontractor and materialmen liens were perfected as they were not paid by the construction company. The funds to pay for the materials and labor which resulted in the claims of lien had been paid to Suarez Brothers of Pinellas, Inc. by the bank making regular disbursements under the construction loan procured by Mr. and Mrs. Phillips for that purpose. Suarez Brothers of Pinellas, Inc. did not use these funds for their intended purpose and misappropriated them to another use not related to the Phillips construction project. The supplies or services for which the liens were perfected had been ordered by Suarez Brothers of Pinel1as, Inc. for this customer's job. Raymond R. Suarez did not have the liens removed from the property by payment within thirty days after the date of such liens, nor has he attempted to have the liens removed at a later date. The Respondent, as qualifying contractor, knew or should have known that the liens were in existence and had been perfected. Since the alleged incidents of misconduct by Raymond R. Suarez, he has not renewed his contractor's license which remained valid until June 1989. The Hearing Officer was not made aware of any aggravating or mitigating circumstances relating to the charges in the Amended Administrative Complaint at final hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Raymond R. Suarez be found not guilty of the alleged violations set forth in paragraphs four, six and seven of the Amended Administrative Complaint. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(h), Florida Statutes, based upon the misconduct alleged in paragraph five of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(10), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(e), Florida Statutes, based upon the misconduct alleged in paragraph eight of the Amended Administrative Complaint, and be ordered to pay a $1,500 fine as the assessed penalty under Rule 21E-17.001(13), Florida Administrative Code. That Raymond R. Suarez be found guilty of having violated Section 489.129(1)(g), Florida Statutes, based upon the misconduct alleged in paragraph nine of the Amended Administrative Complaint, and that a letter of guidance be issued for his misconduct, pursuant to Rule 21E-17.001(1), Florida Administrative Code. DONE and ENTERED this 14th day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4260 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Accepted. See HO #1. Rejected. Irrelevant. See HO #9. Accepted, except for the liens against the property for services and supplies placed upon the project after Suarez Brothers of Pinellas, Inc. was taken off the project. See HO #25 - #33. Accepted, except monetary amount of liens on project for servicesand supplies placed after the company was terminated, if any, were not considered. See HO #17 - #24. Rejected. Irrelevant. See HO #9. Accepted, except for liens against the property for services and supplies p1aced on the property after the contractor was changed, if any. See HO #10 - #16. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Raymond R. Suarez 904 Terra Mar Drive Tampa, Florida 33613 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Mr. and Mrs. Reinhold Brooks 6117 - 94th Avenue North Pinellas Park, Florida Mr. and Mrs. Keith Phillips 5944 Bayview Circle Gulfport, Florida Mr. and Mrs. Richard Vozne 316-7th Avenue North Tierra Verde, Florida Mr. and Mrs. Robert Ganoe 10503 - 100th Street North Largo, Florida Mrs. and Mrs. James B. Hughes, Jr. 9985 Lake Seminole Drive West Largo, Florida
Findings Of Fact Respondent holds certification with the Florida Construction Industry Licensing Board as a general contractor and a registered roofing contractor, having been issued license numbers CG C009484 and RC0043155, respectively. Tate has qualified a company known as Allstate Roofing and Construction, Co., under the terms of the aforementioned licenses, and at times relevant to this inquiry, operated under that company name. On February 17, 1983, respondent through his business name, Allstate Roofing and Construction, contracted with Wayne Lackey to furnish the necessary labor and materials to build a 28' by 78'brick-veneered housing shell in Clay County, Florida. The specified amount of the contract was $34,365 to be paid in four equal draws, or installments, in the amount of $8,591.25, following the completion of work related to each of the phases. In accordance with the contract terms, Lackey paid the respondent three draws in the amount of $8,591.25, upon assurances that respondent had satisfied the expenses related to subcontractors, suppliers, and materialmen. Respondent requested advance payment of the final draw and indicated to Lackey that this money was to be used to pay for materials related to the construction of the housing shell. Lackey complied with this request and made two advanced payments on the fourth draw in the amount of $2,700 and $500. The total amount of the three draws and the advance payments related to the fourth draw was $28,973.75. At the point of paying the advance on the fourth draw, Tate had also told Lackey that all subcontractors, materialmen and suppliers had been paid, and indicated to Lackey that a written lien affidavit acknowledging that all the costs had been satisfied would be provided to Lackey at the conclusion of the construction. While respondent was still obligated under the terms of the contract, Lackey began to receive phone calls and statutory notices of intentions on the part of materialmen, subcontractors and suppliers indicating that they would lien the homesite of the owner, Lackey. These demands were made on the basis that several of these claimants had not been paid for services or' supplies. When Lackey confronted the respondent, the respondent initially told Lackey to ignore those notices and that they had been paid on checks drawn on the Allstate account. In fact, the claimants had either not been paid, or had been paid with checks upon which insufficient funds were available to honor the checks drawn on respondent's business account. Under the circumstances, the claimants continued to press Lackey for satisfaction of their claims for labor and supplies. As a consequence the Lackey's had to expend money of their own to satisfy the contract conditions on the subject of costs for services by subcontractors, materialmen, and suppliers. These costs should have been defrayed by respondent pursuant to the terms of the contract. Some of the expenses, which are recounted below, were expenses incurred prior to the respondent's entitlement to his fourth draw. Payments by the owners to the claimants are as follows: Acorn Windows Mr. Silvers, carpenter Mr. Bruning for fill material Joe Williamson, brickmason & concrete =$1,875.50 =$1,183.57 =$ 551.00 =$1,100.00 Taylor Concrete =$1,629.85 Mr. Karneol, clean-up =$ 200.00 United Electric =$1,523.00 SUBTOTAL PAID BY CHECK BY THE LACKEYS =$8,060.92 Cash payments for which receipts were given: Williamson =$1,000.00 United Electric =$ 800.00 door hardware =$ 136.08 TOTAL EXPENDITURE BY THE OWNERS =$10,003.00 When the amount paid by the Lackeys to subcontractors, materialmen, and suppliers is added to the $28,973.75 paid directly to the respondent, the expenditure on the part of the Lackeys' was $38,976.75. Respondent is due credits for extras in the amount of $200 for rear concrete slab, $160 for extra brick, and $70 for an interior door. That sum of $430 when subtracted from the overall payments of the Lackeys leaves $38,546.75 expended by the Lackeys, which exceeds the agreement, or contract price, between the respondent and the Lackeys by $4,181.75. From the facts presented, it is evident that the Lackeys did not receive the performance from the respondent which they were entitled to under the terms of the contract, and as a consequence, had to pay an additional $4,181.75 above the contract price, before receiving what they had bargained for. This was at some considerable inconvenience in time as well as money. The proof is not clear on whether the respondent diverted monies or property which he had received to carry out the contract with the Lackeys into some other pursuit or whether respondent made a bargain with the Lackeys which could not be concluded with the amount of available funds which the respondent had accepted by contract as being sufficient for the Lackeys to perform their obligation under the contract.
The Issue Whether Petitioners are entitled to attorneys' fees and costs pursuant to Section 57.111, Florida Statutes?
Findings Of Fact On September 29, 2004, Respondent notified Petitioners that a complaint against them was received regarding an engineering project and that an investigation was to be undertaken. Between September 29, 2004, and March 16, 2006, Petitioners submitted numerous informal responses to Respondent either via e-mail or regular United States mail. On March 16, 2006, the probable cause panel of the Board of Professional Engineers found probable cause to charge Petitioners with violating Section 471.033(1)(g), Florida Statutes, by being negligent in the practice of engineering. At the time it found probable cause, the probable cause panel reviewed the materials that are attached to the Affidavit of Teresa Bake, Custodian of Records of FEMC (Respondent's Composite Exhibit numbered 1). These materials include the Investigative Report compiled by the investigator for FEMC; a copy of the plans for the relocation project, and letters dated October 22, 2005, and February 5, 2006, from Roland Holt, P.E., FEMC's engineering consultant. Mr. Holt's reports contained the opinion that Petitioners' plans for the relocation project were deficient. An Administrative Complaint reflecting the March 16, 2006, findings of the probable cause panel was issued April 20, 2006, and was subsequently served on Petitioners. The allegations in the Administrative Complaint are consistent with the purported deficiencies noted in Mr. Holt's letters. Petitioners requested a Section 120.57(1) hearing, which was held July 31, 2006. On August 29, 2006, a Recommended Order was filed recommending that all charges against Petitioners be dismissed. On December 12, 2006, the Board of Professional Engineers entered a Final Order that adopted the findings of fact and conclusions of law recommended by the administrative law judge and dismissed the charges against Petitioners. The amount of attorneys' fees claimed is $26,298.00, which is reasonable and not unjust. The parties have stipulated to recoverable costs of $793.00, which represents that portion of the costs that conform to the Statewide Guidelines for Taxation of Costs in Civil Actions, effective January 1, 2006.
The Issue The issue is whether Respondent is guilty of violating Section 943.13(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a law enforcement officer on January 6, 1993. Respondent held law enforcement certificate number 133999. The Palatka Police Department employed Respondent as a law enforcement officer at all times material to this case. He was employed in that capacity for about three years before being terminated on February 26, 1997. Jennifer Rogers was employed as a cashier at the Amoco Convenience store in Palatka, Florida from December 1996 through February 12, 1997. She worked either the 2:00 p.m. to 10:00 p.m. shift or the 10:00 p.m. to 6:00 a.m. shift. Ms. Rogers worked alone and behind a counter with bullet proof glass and a locked door during the 10:00 p.m. to 6:00 a.m. shift. While working the 10:00 p.m. to 6:00 a.m. shift, Ms. Rogers routinely exited the counter area between 2:00 a.m. and 3:00 a.m. to stock the store for approximately one hour. Ms. Rogers would make sure the store was empty before she exited the counter area. She would lock the front door and display a sign indicating that the store was closed before she began to stock the shelves. It was not unusual for police officers to stop by the Amoco store at night to ensure the safety of the clerks and property. Ms. Rogers first met Respondent at the Amoco store while she was working the 10:00 p.m. to 6:00 a.m. shift. Respondent was wearing a uniform with a badge and a gun. He identified himself as a police officer. Respondent asked Ms. Rogers whether she was single or married. He told her she was pretty. Respondent visited with Ms. Rogers in the Amoco store almost every night that she worked the 10:00 p.m. to 6:00 a.m. shift. He usually stayed in the store about an hour. On some occasions, Respondent would leave and return numerous times. Ms. Rogers initially felt comfortable around Respondent even though he flirted with her and continued to tell her that she was pretty. She trusted him because he was a police officer. Over time, Respondent began to make more intimate comments to Ms. Rogers. He told Ms. Rogers he wanted to have sex with her. He said he wanted to have a baby with Ms. Rogers. Respondent got closer to Ms. Rogers when he talked to her. On occasion, Respondent would call Ms. Rogers while she was working to ask if anyone was in the store. During these calls, Respondent asked Ms. Rogers if he could visit her at the store because he wanted to have oral sex with her. During the month of January 1997, Respondent repeatedly asked Ms. Rogers to have sex with him. Respondent told Ms. Rogers that he would take her to a motel and give her one hundred dollars to have sex with him. He offered to take Ms. Rogers shopping. He told Ms. Rogers that she could use his car. One evening between the second and third week of January 1997, between 1:00 a.m. and 3:00 a.m., Respondent entered the Amoco store while Ms. Rogers was working. He was wearing a badge and a gun. When Ms. Rogers exited the counter area, Respondent cornered her and fondled her breast. Respondent said he wanted to perform oral sex on Ms. Rogers. He got down on his knees and tried to unzip her pants. Ms. Rogers told Respondent to stop and pushed him away. Approximately two nights later, between the second and third week of January 1997, Respondent entered the store while Ms. Rogers was working the late shift. Around 2:00 a.m., Ms. Rogers told Respondent to leave the store because she was ready to exit the counter area to stock the shelves. She no longer trusted Respondent after he touched her breast and tried to unzip her pants. Respondent told Ms. Rogers that he was getting ready to leave. When Respondent turned to exit the store, Ms. Rogers walked out from the counter area with the keys. The door to the counter area closed and automatically locked behind Ms. Rogers. Respondent cornered Ms. Rogers against the door leading into the counter area. He tried to kiss her. Respondent touched Ms. Rogers and asked if he could have oral sex with her. Despite her verbal and physical protests, Respondent moved Ms. Rogers's panties aside and pushed his fingers into her vagina. Eventually, Ms. Rogers was able to push Respondent away. She told him a customer was coming. She opened the door to the counter area and closed the door behind her. After Respondent left the store, he called Ms. Rogers several times. Each time Respondent asked Ms. Rogers if he could return to the store and take her to a motel to have oral sex. The next morning, Ms. Rogers told her manager what Respondent had done. She also told two other employees and her mother. All of these people advised Ms. Rogers to report the incidents to the police. Ms. Rogers did not go to the police because she was afraid of Respondent. Instead, one of the female employees contacted the police and reported the incidents.
